R v Quinn (No 2) - [2016] NSWSC 1244

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Quinn (No 2) [2016] NSWSC 1244
Hearing dates: 8 August 2016, 9 August 2016, 10 August 2016, 11 August 2016, 15 August 2016, 16 August 2016, 17 August 2016, 18 August 2016, 19 August 2016, 22 August 2016, 23 August 2016, 24 August 2016, 25 August 2016 and 30 August 2016
Date of orders: 08 September 2016
Decision date: 08 September 2016
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
(1)   The Court finds the accused guilty of murder;
(2)   The accused is convicted of murder;
(3)   The Court directs that the proceedings standover for submissions on sentence on Friday, 14 October 2016 at 10.00am.

Catchwords: CRIMINAL LAW – murder – trial by judge alone – accused alleged to have stabbed ex-girlfriend – cause of death blood loss from stab wound to the neck – accused immediately stabbed himself in chest and neck afterwards – accused contended that stabbing accidental – accused also raised defence of substantial impairment – Crown case circumstantial – necessary to consider all circumstances established by evidence – whether any reasonable inference or conclusion open that is inconsistent with the conclusion that the accused deliberately stabbed deceased – Crown established deceased broke relationship off with accused and accused distressed by breakup – Crown established stab and incised wounds to the neck and defensive wounds to deceased’s hand – given nature of wounds and other circumstances of killing no inference reasonably open other than accused deliberated stabbed the deceased in the neck – only rational inference is that accused intended to kill deceased – substantial impairment – accused affected by obsessive compulsive disorder and borderline personality disorder – established abnormality of mind due to underlying condition – failed to establish substantial impairment of capacity to understand events or judge whether his actions right or wrong – absence of reliable narrative from accused meant failed to establish substantial impairment of capacity to control himself – partial defence of substantial impairment failed – accused guilty of murder
Legislation Cited: Crimes Amendment (Provocation) Act 2014 (NSW)
Crimes Amendment (Diminished Responsibility) Act 1997 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Haoui v Regina (2008) 118 A Crim R 331; [2008] NSWCCA 209
Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229
R v Byrne [1960] 2 QB 396
R v Cheatham [2002] NSWCCA 360
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v Kaewklom (No. 1) [2012] NSWSC 1103
R v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240
R v Maric [2009] NSWSC 346
R v Murphy (1985) 4 NSWLR 42
R v Quinn (No 1) [2016] NSWSC 1101
R v Ryan (1995) 90 A Crim R 191
R v Spriggs [1958] 1 QB 270
R v Trotter (1993) 35 NSWLR 428
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
The Queen v Baden-Clay [2016] HCA 35
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category: Principal judgment
Parties: Regina
Michael James Quinn
Representation:
Counsel:
Mr M Hobart SC (Crown)
Ms J Manuell SC (Accused)
Solicitors:
Ms K Speirs, Solicitor for Public Prosecutions (Crown)
Mr C Cole, William O’Brien and Ross Hudson Solicitors (Accused)

File Number(s): 2013/275908
Publication restriction: Nil

Judgment

On 8 August 2016, the accused, Michael James Quinn, was arraigned in this Court on an indictment that charged him with murdering Cherie Vize at Farmborough Heights in this state on 22 July 2013. He pleaded not guilty. Previously, on the application of the accused and with the consent of the prosecution, I ordered that the accused be tried by a Judge alone (Criminal Procedure Act 1986 (NSW); s 132(2)). Accordingly, the accused’s trial proceeded before me sitting without a jury. Final submissions concluded on 30 August 2016. Each of the Crown and the accused were well represented by experienced Senior Counsel.
Sometime during the evening of 22 July 2013 Ms Vize died at Wollongong Hospital from blood loss consequent upon a cut to the carotid artery and jugular vein in her neck. At the time of her death she was 25 years of age. Ms Vize was a peaceful person. She had a passion for visual arts and her passing has caused much sadness to her family and friends.
Ms Vize received the fatal wound at, or around, 10.30am on 22 July 2013 while she was in the front yard of residential premises occupied by the accused, his brother and their parents. Prior to her death, the accused and Ms Vize had been in a relationship for a number of years. The Crown alleged that, in the weeks prior to her death, Ms Vize told the accused that their relationship was over and she was seeing someone else. The Crown accepted that the accused and Ms Vize still remained close so much so that she stayed at the accused’s home on the evening of 21 July 2013. However the Crown alleged that only occurred in the context of Ms Vize making it clear to the accused that she was leaving the relationship. The Crown alleged that the combination of the accused being told that as well as viewing a Facebook post and a text message about Ms Vize’s new relationship led to the accused deliberately stabbing Ms Vize in the neck with an intention to kill her on the morning of 22 July 2013.
The accused gave evidence. The accused stated that it was he and not Ms Vize that had ended the relationship yet she insisted on it continuing. The accused stated that he became despondent at the prospect of them both becoming trapped in what he called a dysfunctional relationship with each other. The accused stated that he decided that it would be best for the deceased if he, that is the accused, took his own life as that would “allow Cherie to be free to do whatever she wanted.” The accused said that the cutting of Ms Vize’s throat was an accident that occurred only after she intervened to stop him stabbing himself. In addition to denying that he deliberately stabbed Ms Vize, the accused contended that, even if his actions were deliberate and otherwise constitute the crime of murder, his criminal culpability should be reduced from murder to manslaughter because he established the partial defence of substantial impairment by abnormality of mind provided for by s 23A of the Crimes Act 1900 (NSW).
One matter that is not in dispute is that immediately after Ms Vize’s throat was cut the accused stabbed himself in the chest and neck, resulting in him experiencing quadriplegia.
For the reasons set out in the balance of this judgment, I find the accused guilty of murder. In summary, I accept that the Crown has proven beyond reasonable doubt that the accused deliberately stabbed Ms Vize. I am satisfied of that because I am satisfied that the only reasonable inference that can be drawn from a consideration of all the established facts is that the accused deliberately stabbed Ms Vize. In particular, based on a number of facts, including the presence of the accused’s DNA on the handle of a knife which had Ms Vize’s blood on its blade, I am satisfied that the inference is clearly open that the accused deliberately stabbed her. I am also satisfied that the Crown excluded the possibility that Ms Vize self-harmed or that she was accidentally stabbed in the manner suggested, or similar to that suggested, by the accused in his evidence. Amongst other matters, the knife injuries to Ms Vize’s neck and right hand were inconsistent with both of those possibilities.
As the evidence was unequivocal that the stab wound to Ms Vize’s neck was the cause of her death, I am satisfied beyond reasonable doubt of that fact. I am also satisfied beyond reasonable doubt that the accused intended to kill Ms Vize and that, prior to stabbing her, he formed an intention to kill himself.
I also find that the accused failed to establish the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act. I accept the opinion of the psychiatrists who gave evidence that the accused had an abnormality of mind arising from an underlying condition namely Obsessive Compulsive Disorder (“OCD”) and borderline personality disorder (“BPD”). However, in the absence of a reliable narrative from the accused concerning when he formed an intention to kill and what steps he took to give effect to that intention, I am not persuaded, on the balance of probabilities, that at the time he stabbed Ms Vize the accused’s capacity to control himself was substantially impaired. For similar reasons, I am not satisfied that it has been demonstrated on the balance of probabilities that the accused’s capacity to understand events or judge whether his actions were right or wrong was substantially impaired at the time he stabbed Ms Vize.
The balance of these reasons are structured as follows:

(1) Principles of Law and Warnings (at [10])

(A) Murder and manslaughter (at [11])

(B) Inferences (at [15])

(D) Character (at [21])

(E) Substantial impairment (at [22])

(2) Crown Evidence – Events of 22 July 2013 (at [35])

(A) Layout of the accused’s home (at [37])

(B) Joanne Quinn (at [39])

(D) Sheree Broad and the triple-0 call (at [75])

(E) Gerhard Warth (at [82])

(F) Police, paramedic and medical response (at [85])

(G) Crime scene observations (at [93])

(H) Post-mortem analysis (at [99])

(I) Assessment (at [122])

(3) Crown Case: The Breakup of the Relationship (at [132])

(A) Evansueda Vize (at [135])

(B) Medina Hasic (at [142])

(D) Andrew Meyers (at [155])

(E) Telephone and SMS records (at [157])

(F) Assessment (at [163])

(4) The Accused’s Case (at [170])

(A) The accused’s evidence (at [171])

(B) 2009 incident (at [194])

(D) Consciousness of guilt (at [207])

(5) Murder (at [210])

(A) Deliberate act (at [210])

(B) Causation and intention (at [231])

(6) Provocation (at [237])

(7) Substantial Impairment (at [235])

(A) Dr Stephen Allnutt (at [238])

(B) Dr Richard Furst (at [256])

(D) Abnormality of mind (at [284])

(E) Substantially impaired capacity to understand events (at [287])

(F) Substantially impaired capacity to judge whether his actions were right or wrong (at [295])

(G) Substantially impaired capacity to control himself (at [303])

(H) Subsection 23A(1)(b) of the Crimes Act (at [314])

(8) Conclusion (at [315])

Principles of Law and Warnings
1. Section 133(2) of the Criminal Procedure Act requires that the judgment in a trial by judge alone “must include the principles of law applied by the Judge and the findings of fact on which the Judge relied”. Section 133(3) provides that “[i]f any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.” The findings of fact on which I, as the trial judge, “relied” are set out in the balance of this judgment. However, it is appropriate at this point to record the applicable principles of law and any “warning” that I have taken into account.

(A) Murder and manslaughter

Section 18(1)(a) of the Crimes Act relevantly provides that the crime of murder shall be taken to have been committed where the “act of the accused” caused the death charged and was done with an intention to kill or inflict grievous bodily harm. In this context, “grievously bodily harm” means “really serious injury”. [1] Section 18(1)(b) provides that “[e]very other punishable homicide shall be taken to be manslaughter.”
1. Haoui v Regina (2008) 118 A Crim R 331; [2008] NSWCCA 209 at [129] per Beazley JA and [160] per Johnson J with whom McCallum J agreed at [168]
It follows that to prove the accused’s guilt on the charge of murder, the Crown must prove beyond reasonable doubt that there was a deliberate act of the accused, in this case a stabbing, that the act caused the death of Ms Vize and that in stabbing Ms Vize the accused intended to kill or inflict grievous bodily harm upon her. If the Crown can prove all those elements beyond reasonable doubt, then it will be necessary to consider whether the accused has established the partial defence of substantial impairment.
If the Crown cannot establish beyond reasonable doubt that the accused deliberately stabbed Ms Vize and that act caused her death, then the appropriate verdict is not guilty of murder and not guilty of manslaughter.
If the Crown can prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize and that act caused her death, but cannot prove that he did so with an intention to kill or cause grievous bodily harm, then it will be necessary to consider whether he is guilty of manslaughter by reason of an unlawful and dangerous act. In the absence of any evidence capable of raising a lawful excuse, stabbing someone with a knife is clearly unlawful. For an act to be dangerous it must be one that a reasonable person in the position of the accused would have appreciated exposed another person to a risk of serious injury. [2]
2. Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31

(B) Inferences

As stated, the onus is on the Crown to prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize, that in doing so he caused her death, and that he did so with the intention of causing death or grievous bodily harm. There is no direct evidence that the accused stabbed Ms Vize. Other than the accused and Ms Vize, no one was present at the precise instant when Ms Vize’s throat was cut. Instead, the Crown seeks to demonstrate that the accused deliberately stabbed her by inference from the primary facts it contends that it has proven.
It follows that the Crown case is circumstantial. This means that the Crown must first demonstrate that the inference or conclusion that the accused deliberately stabbed Ms Vize is a reasonable one to draw from the facts established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused deliberately stabbed Ms Vize. If there is any other reasonable inference or conclusion open on those facts that is inconsistent with that conclusion then the Crown’s circumstantial case fails. [3] In considering the Crown’s case, I must consider all of the circumstances established by the evidence and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence. [4] A circumstantial case is not to be considered in a “piecemeal fashion”. [5]
3. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (“Shepherd”); R v Hillier (2007) 228 CLR 618; [2007] HCA 13 (“Hillier”) at [46]; The Queen v Baden-Clay [2016] HCA 35 (“Baden-Clay”)at [47]
4. Hillier at [46]
5. Hillier at [48]; Baden-Clay at [47]
In this case there is no indispensable fact or circumstance that the Crown must prove as part of its circumstantial case; ie the Crown case is not a “link in the chain” case but a “strand in the cable” case. It follows that the circumstances relied on by the Crown need not be established beyond reasonable doubt. [6]
6. Shepherd
The Crown also seeks to prove that the accused had the requisite intent by inference from the alleged fact that he deliberately stabbed Ms Vize. As proof of that element of the crime is required beyond reasonable doubt, and as that is sought to be done by inference, then it follows that I should not draw any such inference unless it is the only rational inference in the circumstances. [7]
7. Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at [104]; Baden-Clay at [46]

(C) Accused’s evidence

As stated, the accused gave evidence and the effect of his evidence was that Ms Vize’s throat was cut accidentally when she intervened to stop him from killing himself. If I was to accept this aspect of the accused’s version of events then I would enter a verdict of not guilty to murder and manslaughter because, in that event, the Crown would have failed to prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize. Further, even if I did not positively accept the accused’s account, then the same result would follow if the Crown has not excluded the reasonable possibility that his version of the facts in that respect is true. In that event the Crown will also have failed to prove the accused’s guilt beyond reasonable doubt.
Further, even if I were to reject the accused’s version in its entirety, the obligation would still remain on the Crown to prove its case beyond reasonable doubt. In its written submissions the Crown contended that the accused lied both when he gave evidence and when he spoke to various psychiatrists about his relationship with Ms Vize and the circumstances of her death. [8] The Crown submitted that I could use those lies as evidence of a “consciousness of guilt” on the accused’s part. Before I could use any lies told by the accused in that way the alleged lie must be precisely identified,[9] it must be shown to be a lie (ie a statement by the accused that was untrue and known by the accused to be untrue), and it must relate to a material issue in the trial. [10] If satisfied of those matters, I would then have to consider whether there is a reason for the accused to tell the lie apart from a realisation of his guilt. [11] Only if I concluded that there were no such reason could I then use the lie as a form of admission. [12] Otherwise, if I were to conclude that the accused lied but the lie did not meet the requirements for demonstrating a consciousness of guilt, I could not use that finding as evidence supporting the Crown case (although it can be considered as a matter affecting his credit). [13]
8. Crown written submissions at [44] to [50]
9. Edwards v The Queen (1993) 178 CLR 193 at 210; [1993] HCA 63 (“Edwards”)
10. Edwards at 210
11. Edwards at 211
12. Edwards at 211
13. Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

(D) Character

It was common ground that the accused has no convictions for any criminal offence and that, prior to the events of 22 July 2013, no complaint that he engaged in any act of domestic violence had been made against him. Accordingly, the accused is taken to be a person of good character. I can and do use that fact as evidence that he was unlikely to have committed the crime of murder (or manslaughter). I can, and do, use that fact as supporting his credibility that is by reasoning that he is less likely to lie or give a false account either in giving evidence or in his dealings with others. [14] I have considered and taken into account the accused’s character in both respects.
14. R v Murphy (1985) 4 NSWLR 42 at 53 - 54; Evidence Act; s 110

(E) Substantial Impairment

Section 23A of the Crimes Act relevantly provides:

“(1)    A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a)    at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b)    the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2)    For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
…
(4)    The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
…
(8)    In this section:
Underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.” (emphasis in original)

Section 23A was introduced into the Crimes Act with effect from 3 April 1998. [15] However, authorities dealing with its predecessor and its equivalent in the United Kingdom are still considered when this provision is applied. [16] In many respects, the above provision is a synthesis of those decisions.
15. By the Crimes Amendment (Diminished Responsibility) Act 1997, No 106 of 1997
16. In her detailed submissions on this provision, Senior Counsel for the accused, Ms Manuell SC, cited R v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 (per Spigelman CJ at [10], Newman and Adams JJ agreeing); R v Maric [2009] NSWSC 346, per Harrison J (at [36]); Potts v R [2012] NSWCCA 229 (per Johnson J at [31], McClellan CJ at CL and Fullerton J agreeing); R v Kaewklom (No. 1) [2012] NSWSC 1103, per Johnson J.
The partial defence provided by s 23A can be conveniently broken down into three elements. First, the accused person must demonstrate that, at the time they committed the act causing death, they were subject to an “abnormality of mind arising from an underlying condition” within the meaning of subsection 23A(8). Second, the accused must establish a substantial impairment of at least one of three capacities at that time and “by” (reason of) that abnormality. The three capacities are the accused’s capacity to understand events, judge whether his actions were right or wrong and control himself. Third, the tribunal of fact must be persuaded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)). Each of these elements are interrelated.
The following passage from the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 (“Byrne”) at 403 is commonly cited as explanatory of the concept of abnormality of mind and its interrelationship with an impairment of an accused’s capacity:[17]

“’Abnormality’ of mind”, which has to be contrasted with the time-honoured expression in the M’Naughten Rules ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression “mental responsibility for his acts” points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of his ability to exercise will power to control his physical acts.
Whether the accused was at the time of the killing suffering from an “abnormality of mind” in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into account consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.
The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence.” (emphasis added)
17. See R v Trotter (1993) 35 NSWLR 428 at 431 (“Trotter”)

In R v Ryan (1995) 90 A Crim R 191 at 195 (“Ryan”), Hunt CJ at CL referred to an abnormality of mind existing “where there is a deviation from the range over which they may vary in ordinary people”. This aspect of Ryan has been repeatedly approved. [18]
18. See for example R v Cheatham [2002] NSWCCA 360 (“Cheatham”) at [73]
In Trotter, Hunt CJ at CL cited the above passage from Byrne and then addressed the need for the impairment to be “substantial”. His Honour stated: [19]

“Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial …To be substantial, the impairment may be less than total, but it must be more than trivial or minimal”.
19. Trotter at 431

One matter of potential significance to this element of the defence is the concept of control that underlies the phrase “capacity to … control himself or herself” in s 23A(1)(a). This must be a wider concept than voluntariness. If it were not, then it is unlikely that s 23A would ever arise for determination in that if the relevant act were not voluntary the accused would be acquitted outright.
In Byrne, Lord Parker CJ explained that, prior to the passing of the Homicide Act 1957 (UK), which included a defence of substantial impairment, the concept of a loss of self-control was only relevant to provocation. [20] The inclusion of a partial defence of substantial impairment had the effect of conditionally extending a partial defence to murder from an accused who lost their “self-control” in circumstances that would cause that to occur in a “reasonable person” (ie provocation) to an accused affected by an underlying condition which affected their self-control. [21] The phrase loss of “self-control” is found in s 23 of the Crimes Act, which addresses provocation.
20. Byrne at 402
21. Byrne at 402 to 403
In the above passage from Byrne, Lord Parker CJ described the concept of control as the “ability to exercise will power to control physical acts in accordance with [a] rational judgment” formed about whether an action is right or wrong. Hunt CJ at CL referred to this passage with approval in Trotter when referring to “a person’s ability to exercise willpower to control his physical actions”. [22] Further, in Byrne, Lord Parker CJ stated: [23]

“… in a case where the abnormality of mind is one which affects the accused’s self control the step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common sense way.”
22. Trotter at 430 to 431
23. Byrne at 404

His Lordship referred with approval to R v Spriggs [1958] 1 QB 270 (“Spriggs”) at 276, in which Lord Goddard concluded it is the duty of the trial judge not to engage in drawing “metaphysical distinctions” but instead to refer the jury to the terms of the section and in effect apply its ordinary meaning. In Cheatham at [106] Smart AJ (with whom Beazley JA and Bell J agreed on this issue) referred to Spriggs with approval although his Honour added that: [24]

“… it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions (in the present case the stabbings) they must take into account the perceptions of events of the accused and the nature and extent of any impairment of his perceptions, his capacity to understand events and his ability or capacity to form a sensible judgment as to whether his actions were right or wrong.”

Cheatham concerned the predecessor to the current version of s 23A, but nothing turns on that.

24. Cheatham at [111]

In relation to s 23A(1)(b), in Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at [33] to [35] Johnson J (with whom McClellan CJ at CL and Fullerton J agreed) stated:

“33 It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question".
34 The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s.23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter "is both a legal distinction and a moral one" (SU66). Manslaughter is regarded as "having less culpability than murder and it is, therefore, punished less severely" (SU66). If that "incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter" (SU68).
35 Section 23A(1)(b) has been described as giving rise to "an issue which is quintessentially one for the determination of a jury": R v Hucker [2002] NSWSC 1068 at [2] (Howie J). “

Save for one matter these observations apply to this Court’s task under s 23(1)(b). In [33] of the above extract, Johnson J cites Trotter at 431 as authority for the proposition that “an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter”. That approach to determining whether an impairment is substantial reflected the wording of the former s 23A, which referred to whether the accused was “suffering from such abnormality of mind as substantially impaired his mental responsibility” for his or her acts or omissions as warranted liability for murder being reduced to manslaughter. Section 23A(1)(a) now requires the accused to demonstrate a “substantial impairment” of one of their capacities. If that is demonstrated, then s 23A(1)(b) requires the Court to consider whether the “impairment was so substantial” as to warrant a reduction in the accused’s criminal culpability. It is that issue which is a “value judgment by the jury representing the community [and] not a finding of medical fact”. [25]
25. Trotter at 431
In her oral submissions, Senior Counsel for the accused, Ms Manuell SC, submitted that such an assessment should include a consideration of the nature of the abnormality, the extent or degree of the impairment, the accused’s thought processes and the extent to which the accused differs from the “ordinary person” in that respect. I agree that it includes those matters. [26]
26. Transcript at p 541

(2) Crown Evidence – Events of 22 July 2013

Leaving aside the psychiatric evidence, the evidence adduced by the Crown addressed two topics, namely the events on the morning of 22 July 2013 and the course of the relationship between the accused and Ms Vize that led to her being at the accused’s home that morning. To an extent I will outline the evidence on those topics separately although some witnesses gave evidence on both.
As stated, there were no witnesses who saw the instant when Ms Vize’s throat was cut in the front yard of the accused’s home. Instead, the first witness on the scene was the accused’s mother, Joanne Quinn, followed by his younger brother, Thomas Quinn, and their neighbour, Sheree Broad. I will describe the layout of the accused’s home, their evidence and that of another neighbour as well as the evidence of the paramedics and some of the police officers who attended the scene, as well as the evidence from medical and forensic experts. The evidence of Mrs Quinn and Thomas also addressed the accused’s mental health and his relationship with Ms Vize.

(A) Layout of the accused’s home

The accused’s home is located in Farmborough Heights in the Illawarra region south west of Wollongong. The videos and photographs tendered during the trial indicate that it is located in a leafy, residential street. The home consists of three bedrooms, a kitchen and dining room and two living areas. [27] At the front of the house is a verandah. The verandah spans approximately the right hand third of the front of the house as one faces the street. The verandah is elevated from the front yard. At the edge of the verandah are steps into the front yard. Immediately below the verandah is a concrete path which runs parallel to the front of the house. The steps to the path from the verandah are on the right side of the house as one faces to the street. The other end of the path leads to a carport which is located on the left side of the house as one faces the street. Another path leads from the concrete path to the front part of the driveway onto the street. On 22 July 2013, a small car covered in a white plastic sheet was located on the top of that path and a white sedan motor vehicle was parked in the driveway. The front yard is enclosed by trees. Behind the trees at the very front of the property is a small brick wall. Beyond that is a nature strip. Behind the trees on the right as one faces the street is a concrete path that leads down the side of the house to the back yard and behind that is a fence.
27. Exhibit H
Located along the path that is parallel to the front of the house and immediately below the verandah is a pole for a television antenna. This pole is located about a metre past the left hand edge of the verandah as one faces the street. The evidence of the various witnesses suggests that Ms Vize’s throat was cut just to the right of that antenna as one faces the road. At that point there was significant bloodstaining on the wall of the house and the surface of the path. [28]
28. Exhibit A – photograph 8; see [94]

(B) Joanne Quinn

The accused’s mother, Mrs Quinn, was the first witness at the scene immediately after Ms Vize’s throat was cut. The Crown subpoenaed Mrs Quinn to give oral evidence but she raised an objection under s 18 of the Evidence Act 1995 (NSW) which I upheld. [29] Instead, her version of events was adduced in evidence via the Crown tendering the following: first, a short interview with police that was recorded on a mobile phone at 11:46am on 22 July 2013; [30] second, a six-page statement that was prepared at the Lake Illawarra Police Station and signed by Mrs Quinn the afternoon of 22 July 2013; [31] third, a DVD recording of a walk-through of her home on 24 July 2013 in which Mrs Quinn described the events of the morning of 22 July; [32] and fourth, the transcript of oral evidence given by Mrs Quinn at a committal hearing in October 2014. [33]
29. see R v Quinn (No 1) [2016] NSWSC 1101
30. Exhibit B
31. Exhibit KK
32. Exhibit KK
33. Exhibit KK

Brief interview

Not surprisingly, in the brief interview recorded occurred on 22 July 2013, Mrs Quinn appeared subdued and in shock. Her hands and clothes were covered in blood. She told the police that she was inside the house, “heard shouting, and I went outside and I saw that [Cherie] was bleeding from the neck so I put my hand over her neck and I called out and the lady next door heard me and she rang the ambulance”. [34] She said that her son and Ms Vize had been in a relationship for four years. She heard them both “screaming and yelling”. [35] At one point she was asked: [36]

“Q.15 Ok so what do you believe has happened here today?
A. I know that Cherie has been seeing someone else at the time so I think that’s what at the core of it.”

34. Exhibit B at p 1.1

35. Exhibit B at p 2

36. Exhibit B at p 2

Statement

In her statement, Mrs Quinn said that on the morning on 22 July 2013, she drove her car to a mechanic’s workshop and was picked up and driven home by her other son, Thomas, sometime between 8:30am and 9am. She stated that “Michael was at home asleep with his girlfriend Cherie Vize”. [37] When she returned home they were still asleep. Mrs Quinn made breakfast and did some washing. She recalled Ms Vize woke up, went to the toilet and then to the front of the house for a cigarette. Mrs Quinn recalled that “a little while later” [38] Ms Vize came back inside and went into the accused’s bedroom. Mrs Quinn stated that the accused came out of the bedroom, went into the toilet and also went back into the bedroom. Later they both come out of the bedroom and had some orange juice in the kitchen.
37. Exhibit KK, statement dated 22 July 2013 at [4]
38. Exhibit KK, statement dated 22 July 2013 at [5]
Mrs Quinn recalled speaking to Ms Vize who told her that “they were going to do some painting”. [39] Mrs Quinn told Ms Vize that her paint equipment was in the back of the car that had been taken to the mechanic. Ms Vize said that she would help the accused do his painting. Ms Vize then rang her mother from their house to tell her that she intended to “paint with Michael all day”. [40] Mrs Quinn stated that “[w]hile I was speaking with them, everything seemed fine.” However, she added: [41]

“I know that Cherie had been crying the night before. I didn’t see her crying but I could hear her crying. About a week ago, Michael had found out that Cherie had been seeing someone and yesterday he found out that she had slept with whoever she had been seeing. Michael told me this last night while I was talking to him. While I was talking to Michael, Anthony was sitting at the computer but I’m not sure if he heard the conversation or not. Michael also told me that he had seen a message on Cherie’s mobile phone in which she was talking about going to the chemist to get the morning after pill.” (emphasis added)
39. Exhibit KK, statement dated 22 July 2013 at [7]
40. Exhibit KK, statement dated 22 July 2013 at [7]
41. Exhibit KK, statement dated 22 July 2013 at [8]

Mrs Quinn said that she then saw Ms Vize walk outside the front of the house for a cigarette and that “a minute or so later I heard the front door bang”. A short time later Mrs Quinn heard Ms Vize say “Michael don’t do that”. Mrs Quinn explained that she had heard Ms Vize say this to the accused before, but this statement “sounded more urgent than other times”. Mrs Quinn heard Ms Vize repeat “Michael don’t do that” and that “she wasn’t shouting however she sounded like she was trying to reason or plead with Michael”. [42] Mrs Quinn said she then left her bedroom and went to the front of the house. When she walked out of the front of the house she: [43]

“… saw Michael and Cherie standing near our TV antennae pole. The pole is attached to the house outside Michael’s bedroom window. This isn’t the area where I would normally expect Cherie to smoke her cigarettes.
I could see that Michael was standing in front of Cherie and it looked like he had his hands on her shoulders with one hand on each shoulder. They appeared to be struggling so I went towards them and tried to get in between them. Michael is quite strong and as I was attempting to get between them I saw him take a step back. Around this time I noticed blood and Michael with a knife. I turned around and looked at Cherie and I saw that blood was pouring out from the side of her neck. I can’t remember what side the blood was coming from. When I saw the blood I instinctively reached out and put my hand on the wound to try and stop the flow of blood. As I did Cherie collapsed onto the ground on her back near [a mini minor motor vehicle parked in the front yard].” (emphasis added)
42. Exhibit KK, statement dated 22 July 2013 at [11]
43. Exhibit KK, statement dated 22 July 2013 at [12] - [13]

Mrs Quinn heard Ms Vize’s breathing begin to change. She told Ms Vize to “stay with me”. [44] Mrs Quinn recalled that a neighbour [Sheree Broad] came to her assistance. Mrs Quinn asked her to call an ambulance. Ms Broad rang triple-0 and they both spoke to the operator. The triple-0 call is addressed at [79] below.
44. Exhibit KK, statement dated 22 July 2013 at [13]

Mrs Quinn recalled that while she was helping Ms Vize she saw the accused holding a “small paring knife with a brown handle”. [45] She said he was either trying to cut his neck or stab himself in the chest. She told him “don’t do that”. [46] She said that Thomas came out and told the accused to stop. By this time, Ms Vize was lying on the ground. Mrs Quinn recalled watching the accused walk across the yard and out the front gate onto the front footpath on the grass. [47]
45. Exhibit KK, statement dated 22 July 2013 at [15]
46. Exhibit KK, statement dated 22 July 2013 at [15]
47. Exhibit KK, statement 22 July 2013 at [16]
Soon afterwards, police and ambulance officers arrived to a scene of carnage. The ambulance officers assumed the care of Ms Vize. Mrs Quinn walked to the front footpath to see the accused on the ground and another neighbour holding a towel to his neck. The accused said to her “I can’t feel my arms or legs” and “I can’t believe I missed my heart.” [48]
48. Exhibit KK, statement 22 July 2013 at [18]
I note three further matters about Mrs Quinn’s statement. First, Mrs Quinn stated that the accused told her that he had been caught cheating on Ms Vize on a number of occasions. Mrs Quinn also recounted an incident about a month prior to Ms Vize’s death where the accused booked some accommodation for both of them to stay in Sydney. Mrs Quinn recalled that, although Ms Vize was supposed to have finished work in an art shop in Campbelltown between 4pm and 5pm, she did not arrive at the hotel the accused had booked until 10pm. Mrs Quinn recalled the accused telling her that “Cherie said that she was smoking and talking to someone and she couldn’t get on the train” [49] but added “I believe that Michael had since found out that she had been talking to or seeing whoever she had been seeing behind his back”. [50] I infer that in stating this that Mrs Quinn was recounting something the accused had told her.
49. Exhibit KK, statement 22 July 2013 at [21]
50. Exhibit KK, statement 22 July 2013 at [21]
Second, Mrs Quinn stated that the accused had OCD which manifested itself in a desire to be clean. She described the accused obsessively washing his hands and having three to four showers a day with some of these showers taking up to an hour. Mrs Quinn said that the accused could not use garbage bins or even walk near them for fear of being contaminated. Mrs Quinn stated that when his OCD was at his worst the accused could not turn a light switch off because if he did “his brain would be telling him to check it again so he would turn the switch on or off again” and “it would not be uncommon for him to spend five or ten minutes trying to turn the light off”. [51] Mrs Quinn stated that when her son started his relationship with Ms Vize his symptoms “relaxed a bit” [52] however “if he was overtired I could sometimes see the OCD coming back”. [53] Mrs Quinn stated that he took one “Lovan” tablet a day for his OCD. [54]
51. Exhibit KK, statement 22 July 2013 at [22]
52. Exhibit KK, statement 22 July 2013 at [22]
53. Exhibit KK, statement 22 July 2013 at [22]
54. Exhibit KK, statement 22 July 2013 at [24]
Third, Mrs Quinn stated that her son was not a violent person and that she “only [knew] of one occasion when he was accused of being violent”, [55] which was when he walked out of a university lecture because he thought he touched a garbage bin. She understood he was being approached by the university lecturer and did something which “made her scared”. [56] Mrs Quinn understood he made reference to “jump[ing] off a bridge”. [57] Further details of this and another incident at the University of Wollongong emerged during the trial. They are addressed below. [58]
55. Exhibit KK, statement 22 July 2013 at [24]
56. Exhibit KK, statement 22 July 2013 at [23]
57. Exhibit KK, statement 22 July 2013 at [23]
58. at [194] to [203]

Walk-through

Mrs Quinn participated in a “walk-through” at her home on 24 July 2013 in the presence of Detective Senior Constable Sammut and at least two other police officers. The walk-through was recorded on a DVD, which was tendered at the trial. [59] Mrs Quinn’s husband, Anthony, was also present. He was not present during the terrible events on the morning of 22 July 2013. Mrs Quinn was calm and cooperative throughout the walk-through. She described coming to the front of the house and seeing Ms Vize standing near the antennae pole with her back to the house and the accused standing in front of Ms Vize. Mrs Quinn stated that “I tried getting in-between them because I didn’t really know what was happening, I didn’t see a knife or anything at that stage”. [60] She described what she saw as follows:

“I just saw that Michael had, had her and that she didn’t wanna be held like that, I didn’t see any blood at the time, I didn’t see a knife but I knew she, she looked fearful and she didn’t want him there. So I tried to get in-between them but he’s just too strong and then by then I saw the blood and yeah.
…
[Detective Sammut] … OK so when you say, she looked fearful, what and what, gave you that impression?
[Mrs Quinn] Just the way, just her mannerism - - -” [61] (emphasis added)
59. Exhibit C
60. Exhibit C at 9.1
61. Exhibit C at 9.5

Mrs Quinn said that from the time she came to the front of the house neither Ms Vize or the accused said anything. Mrs Quinn said Ms Vize appeared to be “in shock” and did not appear to know she had been cut. [62] She said that Ms Vize did not have any weapon in her hand. [63] Mrs Quinn was then asked: [64]

“[Q] Did Michael have any weapons in his hands?
[Mrs Quinn] I don’t know. I do remember seeing the knife on the ground though.”
62. Exhibit C at 10
63. Exhibit C at 10.1
64. Exhibit C at 10

Mrs Quinn identified the knife located on the ground. [65] Mrs Quinn was shown a photograph of the knife recovered from the ambulance that took the accused to the hospital, [66] but denied seeing it on the morning of 22 July 2013. She confirmed that knife was taken from a knife block next to the kitchen sink. [67]
65. Exhibit C at 24 - Being the knife depicted in Exhibit A at photographs 59 and 61
66. Exhibit A – photograph X0000102859
67. Exhibit C at 24
The balance of the account given by Mrs Quinn during the walk-through was consistent with her written statement. Mrs Quinn recalled that the accused asked a police officer to “shoot him to be done with it”. [68] She said that prior to her going to the front of the house “the two of them were in the house like they always were, there was no arguments, there was no shouting”. [69] Mrs Quinn said that there was “no indication that he was, that this was gunna happen”. [70] She was asked about whether there was any “issues” between Ms Vize and the accused and stated: [71]

“[The accused] found out that she’d been with someone else at the same time that she was with him but that wasn’t the first occasion and he found that out probably a week or so before then. But they still kept talking, they still kept seeing each other. So ---
yeah they were, as far as we know, working through it ---
You know they, he still saw her nearly every day”.
68. Exhibit C at 13
69. Exhibit C at 14.8
70. Exhibit C at 14
71. Exhibit C at 15.2

Mrs Quinn was asked about whether there were any previous occasions when the accused had self-harmed. She recounted an incident when he cut himself with a razor in the shower and another occasion when he scratched his face with a pen at university. [72]
72. Exhibit C at 15.6

Mrs Quinn’s committal evidence

The evidence given by Mrs Quinn at the committal hearing was generally consistent with what she said in her written statement and the walk-through, although three matters should be noted.
The first concerns whether Mrs Quinn observed the accused holding a knife when he was near Ms Vize. Mrs Quinn stated that when she walked to the front of the house she saw “Michael was holding Cherie by the neck, with both hands”. [73] She said that Ms Vize and the accused were not saying anything, Mrs Quinn said to the accused “let go” which he did to reveal blood and “a wound underneath”. [74] Mrs Quinn was asked “Did Michael have anything in his hands” and replied “no”. [75] The Crown was given leave to cross-examine Mrs Quinn on the apparent inconsistency between that answer and the reference in her written statement to the accused holding a knife. [76] Mrs Quinn stated that she was “not happy” with that paragraph of her statement. [77] She said that she signed the statement under “duress” [78] which she clarified as meaning that she was experiencing stress and anxiety. [79]
73. Exhibit KK transcript 27/10/2014 at p 35.39
74. Exhibit KK transcript 27/10/2014 at T35.50
75. Exhibit KK transcript 27/10/2014 at p 36.5
76. See [43]
77. Exhibit KK transcript 27/10/2014 at p 45.46
78. Exhibit KK transcript 27/10/2014 at p 57.14
79. Exhibit KK transcript 27/10/2014 at p 68.45
Under cross-examination by the solicitor for the accused, Mrs Quinn was asked why she intervened between the accused and Ms Vize. She stated: [80]

“Because Michael’s hands were around Cherie’s throat, I thought he was choking her, I don’t know, but what he was doing was holding the wound. That’s what I meant when I had to get in-between them, I thought –
Q. You[r] initial reaction was wrong, wasn’t it?
A. It was.
Q. Michael [was] actually helping her?
A. That’s right.”
80. Exhibit KK transcript 27/10/2014 at p 66.7

The second matter concerns Mrs Quinn’s assessment of the accused’s responsiveness. Mrs Quinn stated that she told the accused to call an ambulance but he did not because “he was just blank” [81] and that “[she] couldn’t get any response out of him whatsoever.” [82]
81. Exhibit KK transcript 27/10/2014 at p 36.29
82. Exhibit KK transcript 27/10/2014 at p 59.42
The third concerns Mrs Quinn’s assessment of Ms Vize’s fear when she saw her with the accused. In the transcript from the walk-through set out at [50] she described Ms Vize as “fearful”. Under cross-examination by the Crown at the committal hearing, Mrs Quinn stated that she did not recall saying that but agreed that was her “recollection now”. [83] However, under cross-examination by the accused’s solicitor, Mrs Quinn agreed that she was “not able to say what that look on [Ms Vize’s] face was”. [84]
83. Exhibit KK transcript 27/10/2014 at p 47.34
84. Exhibit KK transcript 27/10/2014 at p 66.36

(C) Thomas Quinn

Thomas Quinn took part in a short video-recorded interview at 11:54am on 22 July 2013, as well as a recorded walk-through on 24 July 2013. He also gave evidence at the trial.

Interview and walk-through

Only part of the short recorded interview with Thomas on 22 July 2013 was tendered. [85] In that interview he recalled that he heard “what I thought [was] children shouting … cause it was a high pitched kind of thing” [86] and said he then heard “dogs barking carrying on”. [87] He said he then paused the TV and started the TV again but then “they started up again, were shouting”. [88]
85. Exhibit B
86. Exhibit B at 1
87. Exhibit B at 1
88. Exhibit B at 2
In his walk-through on 24 July 2013, Thomas described the noise he heard as “inaudible shouting”. [89] He said he then heard his mother “screaming” [90] and he “sprinted out” [91] to the front area. He saw his mother holding Ms Vize against the brick wall near the antenna pole. He recalled blood was “pouring out of the side of [her] neck” and “her eyes were rolled” and she was “gasping for air”. [92] Thomas saw his neighbour standing behind his mother. He said the accused was in the front yard of the house to the right as one faces the street. [93] Thomas said his mother said that she “needed towels”. He “sprinted” through the house, collected tea towels and returned. [94] He said he threw the towels to his mother. By this time the neighbour had left. He noticed the accused in the front yard who “started stabbing himself in the chest repeatedly”. [95] Thomas ran down from the verandah to the accused and said to him “[w]hy are you doing this, stop”. [96]
89. Exhibit D at 2.7
90. Exhibit D at 3.1
91. Exhibit D at 3.6
92. Exhibit D at p 4.2
93. Exhibit D at p 4.7
94. Exhibit D pp 4 - 5
95. Exhibit D at p 6.3
96. Exhibit D at p 7.6
Thomas recalled the paramedics arriving. He said he ran back inside and telephoned his father. [97] He returned to the front yard to find that his brother was near the car in the driveway. [98] Thomas went to him and found that he was still holding the knife. Thomas stated “I think he might have been still been trying to finish off his throat.” [99] He said the accused collapsed and there was a knife found in his neck. [100] He recalled that at one point the neighbour was assisting him and the accused started saying “stop helping me. Just let me go. Stuff like that”. [101]
97. Exhibit D at p 8.2
98. Exhibit D at p 8.2
99. Exhibit C at 8.3
100. Exhibit D at p 8
101. Exhibit D at p 9.6
Thomas said that at one point he said to the accused “why have you done this”. [102] He said that the accused “just didn’t respond” and “it was as if he couldn’t, I am not sure he was ignoring or me couldn’t hear the question but he was focused on whatever he was doing to himself” [103] and “I shouted, like I’ve never shouted like that in my life the way I shouted at him to stop hurting himself but it was as if he couldn’t hear me”. [104]
102. Exhibit D at p 11.3
103. Exhibit D at p 11.3
104. Exhibit D at p 11.5
Thomas was asked as follows: [105]

[Detective Sammut] Were you aware of any problems that Michael and Cherie were having in their relationship?
[Thomas] Through what I’ve been told by my mother at, up to this point, Michael had found out that Cherie was cheating on him and I’d spoken to my brother, like he was pretty devastated about it.
[Detective Sammut] What did you say?
[Thomas] Well I mean from his, from my perspective, when I was talking about it like I thought he’d, he’d, had his heart broken a bit.
[Detective Sammut] He was heartbroken?
[Thomas] Yeah” (emphasis added)
105. Exhibit D at pp 17.18

Thomas described the accused as secretive about the company he kept and his relationships. He said that he had “a general understanding that Cherie had slept with another man” and that “Cherie had given him some sort of timeline to, to get his act together, whatever that meant” but his understanding was “that she was still seeing this other gentleman.” [106] Thomas was then asked: [107]

“[Detective Sammut] Do you know at what point in time he learned of her being with another man. Was it a recent thing or has it been a long, long?
[Thomas] Well I know she cheated on him ages ago. I don’t know exactly how long ago, like, a fair, a fair while ago now like they, and they’d gone passed it but in terms of this particular one, several weeks ago they were, staying up in Sydney somewhere and she was about five hours late. That might have been the first indication that she was cheating on him. I, I wouldn’t know but that might of ‘cause he was pretty distraught that night and he was just worried about her and he didn’t know where she was and freaking out and then, since then, I don’t know how he found out whether he asked her directly or he’s seen messages or something on her phone he’s become aware that she’s cheating on him and he’s confronted her about it and she, she didn’t deny it I don’t think. But again, all this, I really haven’t got from him, I’ve mostly gotten from my mother.”

106. Exhibit D at p 18.7

107. Exhibit D at p 19

Oral evidence

The description of the events of the morning of 22 July 2013 given by Thomas in his oral evidence was generally consistent with what he stated during the walk-through on 24 July 2013. It is only necessary to note five matters about his oral evidence. First, Thomas recounted the course of events which involved him hearing noises, running to the front of the house when he heard his mother scream, seeing his mother with Ms Vize, returning to the house to get towels and returning again to the front yard to see the accused stabbing himself. The first time that Thomas stated that he noticed the accused was in the front yard. He did not state that he passed the accused on the verandah or in the house.
Second, Thomas stated that when he noticed the accused in the front yard he had a knife in his right hand and was slowly walking backwards towards the road. [108] Thomas said that there was blood on the accused’s hands and he saw him stab himself in the chest at least twice. [109] He said that after he stabbed himself the accused “continued to walk backwards, perhaps a couple of steps and then took the knife up to his neck and began to drag it across his throat”. [110] Thomas said he screamed out to him to stop. He ran over to the accused who by now had collapsed on the driveway in the area where his car was parked in the front. [111] He said to the accused “why have you done this”. [112] He said that he initially got no response however at some point the accused said words to the effect of “leave me alone, I’m ok” and “[d]on’t help me, I can’t feel anything”. [113]
108. Transcript at p 107.40
109. Transcript at p 108.38
110. Transcript at p 109.45
111. Transcript at p 109.2
112. Transcript at p 110.15
113. Transcript at p 110.20
In cross-examination, Thomas said that when he screamed at the accused to stop it was the loudest scream he could make (“I had nothing else I could have put into that scream”). [114] Thomas said that there was no visible response from the accused and the expression on the accused’s face was “blank”. [115] Thomas said that “he couldn’t get a read on what [the accused] was thinking or what potentially could be running through his mind” and that he “couldn’t see any sign of distress” in the accused. [116]
114. Transcript at p 115.39
115. Transcript at p 115.20
116. Transcript at p 115.39
Third, Thomas described an occasion some years before 22 July 2013 when he witnessed the accused cut himself with a razor blade in the bathroom. [117] He recalled the accused turned to him and “seemed to show a level of relief … with the damage to his body”. [118] Thomas also described the accused as a “cutter” in that he appeared to cut around the knuckles of his hand with a maths compass. [119]
117. Transcript at p 116
118. Transcript at p 116.29
119. Transcript at p 117.10
Fourth, Thomas described the accused’s compulsive behaviour. Thomas recalled that from when the accused was approximately 15 years of age, he became obsessive about cleanliness. The accused insisted that Thomas wash his hands before using his game console. Thomas observed that the accused would shower at least two times a day and sometimes up to four. [120] Thomas also noticed injuries to the accused’s skin after showering from excessive scrubbing. [121] Thomas recalled that the accused became obsessive about any contact with rubbish bins, such that if anyone touched a bin the accused insisted they wash their hands before they went near him. [122] Thomas stated that, even if the accused walked past a rubbish bin or put a wrapper in a bin without touching it, he would wash his hands. [123]
120. Transcript at p 118.45
121. Transcript at p 119.19
122. Transcript at p 121.39
123. Transcript at p 122.1
Thomas also said that the accused had been compulsive about turning on and off light switches as well as closing and locking doors. He said the accused insisted upon locking a door and sometimes moved back and forth between the door to ensure that it was locked between 10 and 20 times. [124] Thomas said that he sometimes heard the accused in his bedroom at night, getting out of his bed on numerous occasions to ensure the door was shut in a particular way. He commented that this process could take up to 12 to 15 attempts, depending on how stressful the accused’s day had been. [125]
124. Transcript at p 119.40
125. Transcript at p 120.31

Thomas recalled that at some point the accused started taking anti-anxiety medication, which “appeared to be working quite well” although there would be periods of weeks when the symptoms might return with the same degree of intensity as before but then settle down. [126]
126. Transcript at p 122.25 – 40
Fifth, Thomas stated that he and the accused had a close relationship with their maternal grandfather, spending many holidays and outings with him. [127] On or about 12 July 2013, their grandfather was taken to a hospital in Orange and transferred to a nursing home a few days later. He was given a poor prognosis. [128]
127. Transcript at p 122 – 124
128. Transcript at p 124.38

(D) Sheree Broad and the triple-0 call

Ms Broad lived next door to the accused and the Quinn family. Ms Broad gave evidence by video-link. [129] She stated that at about 10:35am on the morning of 22 July 2013 she heard a female voice screaming. Ms Broad said that she went to the front of her house and looked over the fence, and saw “a young girl who was bleeding profusely from the neck and I saw my neighbour, Joanne, with her hands on her neck trying to stop the bleeding”. [130] Ms Broad recalled Ms Vize leaning with “her right shoulder up against [Mrs Quinn’s] house”. [131] Ms Broad dialled triple-0. According to Ms Broad’s phone the triple-0 call was made at 10:38am. [132] This is consistent with the annotation on the recording of that call which records it being made at 10:39am. [133]
129. Transcript 10/08/2016 at p 128
130. Transcript at p 129.8
131. Transcript at p 130.30
132. Transcript at p 134.50
133. Exhibit I
The transcript of triple-0 call records Ms Broad telling the operator that her neighbour was “bleeding profusely from the neck”. At the request of the operator, Ms Broad went to the front yard of Mrs Quinn’s home and put the operator on loud-speaker. As the sight of blood made her sick, Ms Broad held the phone out with one hand and covered her eyes with the other. [134] The transcript of the triple-0 call records Mrs Quinn telling the operator that Ms Vize had “been stabbed in the neck with a knife”. [135] In the recording of the triple-0 call, noises can be heard that appear to include Ms Vize in distress and experiencing difficulty breathing.
134. Transcript at p 132.7
135. Exhibit I at 3.5; Transcript at p 132.20
Ms Broad said that she noticed a knife on the concrete which was covered in blood. Ms Broad then said she heard a male voice coming from the verandah just above where Mrs Quinn and Ms Vize were standing. She recalled the male voice asked what happened. She looked up and saw two males standing on the verandah. Ms Broad said the eldest son of Mrs Quinn, ie the accused, was “standing above Joanne [Quinn]” and the “younger one [ie Thomas] was partially inside the door”. [136]
136. Transcript at p 133.26
Ms Broad said that Mrs Quinn said “Michael stabbed her” [137] and the other son “yell[ed] out … ‘Michael, what have you done? What have you done?’”. [138] Ms Broad said that she recalled the older son walking down from the verandah towards them and that as he was walking down the stairs she saw “a knife sticking out of his stomach”. [139] She did not notice any other “injuries or blood on him”. [140] Ms Broad said that this made her feel unsafe and she returned to her house whilst speaking to the triple-0 operator. [141]
137. Transcript at p 133.28
138. Transcript at p 133.37
139. Transcript at p 134.1
140. Transcript at p 134.15
141. Transcript at p 134
The transcript of that part of the triple-0 call, annotated by my listening to the recording of the call, reads as follows:

“[Operator] Where, where is the offender?
[Mrs Quinn] Sorry?
[Operator] Where is the offender?
[Mrs Quinn] Sorry, I can’t hear.
[Ms Broad] Where is the offender?
[Mrs Quinn] Here.
[Operator] So the offender is in the same house?
[Indistinct noise in background] [142]
142. Not in transcript but can be heard on recording that is part of Exhibit I
[Mrs Quinn] Yes, he is.
[Operator] O.K. Is there more than one wound?
[Mrs Quinn] No, just the one.
[Operator] Just the one. O.K. You stay with me please Joanne.
[Mrs Quinn] She’s [fallen] [143] over.
143. Not in transcript but can be heard on recording that is part of Exhibit I
[Operator] I’m going to give you some medical advice in just a moment.
[At this point indistinct noise can be heard in the background including Ms Vize in distress] [144]
144. Not in transcript but can be heard on recording that is part of Exhibit I
[Operator] O.K. This is what I’d like you to do.
[indistinct noise] [145]
145. Not in transcript but can be heard on recording that is part of Exhibit I
[Operator] Joanne this is what you need to do. You need to control that bleeding. I want you to get a clean, dry, I want you to clean, dry cloth or towel and place it right on the wound. I want you to press down firmly, do not lift it up to have a look.
[Mrs Quinn] Michael, help [me] [146] please
146. Not in transcript but can be heard on recording that is part of Exhibit I
[Indistinct noise]
[Mrs Quinn] Michael [scream] [147]
147. Not in transcript but can be heard on recording that is part of Exhibit I
[Ms Broad] Just, can you send please send another ambulance? He has just stabbed himself as well.
[Operator] OK. So the - - -
[Ms Broad] I’m sorry.
[Operator] OK. So the offender on scene, offender on scene has - - -
[Ms Broad] Yeah.
[Operator] - - - also - - -
[Ms Broad] …
[Operator] - - - stabbed himself
[Ms Broad] I’m sorry, I’ve had to run away …
[Operator] That’s, that’s all right. Thank you. You’ve done a really good job for me. Do you know where he stabbed himself.
[Ms Broad] In the stomach.”

The only participants in the remainder of the call were Ms Broad and the operator. By this time, Ms Broad had returned to her house. During this part of the call Ms Broad told the operator that “the guy next door stabbed his, I dunno, girlfriend or something …” and “stabbed himself”. [148] According to the annotations on the disc that was tendered, the call concluded at 10:44am.
148. Exhibit I at 5.3
The recording of the triple-0 call does not include the statements that Ms Broad attributed to either Mrs Quinn or Thomas, as noted in [78]. However, that is not much of an indication that those statements were not made given that the phone was on speaker, and there is clearly noise in the background that is not recorded. Further, at times Ms Broad is talking directly to the operator and her voice may have obscured noise in the background. From what Ms Broad told the operator, it is clear that she believed the accused stabbed Ms Vize. She could have only obtained that understanding from what she saw and heard at her neighbour’s place.

(E) Gerhard Warth

A statement was read from Mr Gerhard Warth who lived two houses from the accused’s home in July 2013. [149] Mr Warth recalled returning to his home at around 10.20am after dropping his grandson at preschool. He said that he and his wife were having coffee on their front verandah. He recalls that “after about 15 to 20 minutes” he heard a loud female voice shouting “Michael no, no” which was repeated “a minute or so later”. [150] Mr Warth described the tone of the voice as “not playful, it was loud but not screaming or anything”. [151] He says that after a further “minute or so” heard the same voice say “[s]top Michael, stop it, stop it, stop it”. He queried with his wife where the voice was coming from. Mr Warth said the female voice went quiet for a short period but then he heard her say “No Michael no, stop it”. [152]
149. Exhibit LL
150. Exhibit LL at [13]
151. Exhibit LL at [13]
152. Exhibit LL at [15]
Mr Warth and his wife deduced that the female voice was coming from the accused’s home. As he walked towards that house he saw Thomas in the front yard and came across the accused lying on the nature strip. He asked Thomas to “get some rags to stop the bleeding” and saw him run back into the house. [153] He saw Ms Vize lying on the ground in the front yard and briefly spoke to Mrs Quinn. He knelt down beside the accused and saw a knife sticking out of his neck. He spoke to the accused who told him that he could not move his legs or “feel anything from the neck down”. [154]
153. Exhibit LL at [23] – [24]
154. Exhibit LL at [29]
Mr Warth recalled the police and ambulance personnel arriving around this time and attending to both Ms Vize and the accused. One of the paramedics asked Mrs Quinn “What happened here, what happened”. Mr Warth recalled that she replied: “He found out she was cheating on him with one or two men”. [155]
155. Exhibit LL at [34]

(F) Police, paramedic and medical response

As noted, the triple-0 call commenced at around 10.38 or 10.39am and concluded around 10:44am. At around that time, Constable Zwickl and Senior Constable Riley arrived as did Sergeant Brown and Senior Constable Wells. Over the next 10 or 15 minutes a number of other police officers arrived.
An ambulance arrived at around 10:54am with two intensive care paramedics, Stephen Dawson and Michael Rogers. Mr Dawson attended upon Ms Vize and Mr Rogers attended upon the accused who was on the nature strip.
Mr Dawson observed a deep laceration to the left side of Ms Vize’s neck. He concluded that the artery was severed due to the level of blood loss. Ms Vize suffered cardiac arrest at the scene. Arrangements were made to transfer Ms Vize to hospital. Prior to her departure Mr Dawson observed Ms Vize to be “evidently exanguinated” [156] (ie drained of blood).
156. Exhibit S at [8]
Mr Rogers observed the accused lying on the nature strip with the “handle of a knife protruding from the right side of his neck”. [157] He observed two stab wounds to the accused’s chest and stomach area. Mr Rogers tried to stabilise the knife in its position. He moved the accused into an ambulance for transfer to Wollongong hospital. During the journey to the hospital the knife that was protruding from the accused’s neck fell onto the floor of the ambulance. This knife was seized by police. [158] It had a black handle, was 20cm in length and had a steel blade. [159] This knife matched other knives in a knife block found in the kitchen of the accused’s home. [160]
157. Exhibit T at [8]
158. Exhibit N at [13]
159. Exhibit N at [16]
160. Exhibit G; Exhibit O (knife); Exhibit F – other knives from block; Exhibit A – photograph of knife removed from POI; Transcript at p 67.48]
In her statement, Constable Zwickl stated that at one point she was standing near the accused when he was laying on the nature strip. She recalled the accused said to her “[t]ake your gun out and shoot me, I’ll forgive you”, to which she replied “[n]o”. [161] Constable Crosland recalled the accused stating “[y]ou should just shoot me”, “[h]ow hard is it to hit your own heart”, “I can’t feel anything” and “[i]s she alright”. [162]
161. Exhibit L at [9]
162. Exhibit K at p 3.6
Constable Zwickl also recalled speaking to Mrs Quinn and asking her “[w]hat has happened here today” and Mrs Quinn responding “[h]e just found out she was cheating on him”. [163]
163. Exhibit L at [10]).
A Registrar at Wollongong Hospital, Dr Stewart, stated that Ms Vize was “close to … death” on her admission due to extensive blood loss. [164] Ms Vize was immediately operated upon by “open[ing] the wound further and assess[ing] the degree of further injury and then [trying to] stop the blood loss that was occurring from the major vascular structures within the neck”. [165] Dr Stewart stated that the decision was made “to ligate… the severely lacerated internal and external carotid arteries and the internal jugular vein” due to the severity of blood loss. [166] After the operation, Ms Vize was transferred to intensive care to receive infusions of blood but she succumbed to her injuries. [167] Dr Stewart’s understanding was that she passed away later that evening. [168]
164. Transcript at p 95.15
165. Transcript at p 94.41
166. Transcript at p 96.20
167. Transcript at p 98.1
168. Transcript at p 100.30
It is not necessary to further describe the treatment of Ms Vize. There is no doubt she died as a consequence of blood loss arising from a laceration to the carotid artery and jugular vein. Her other injuries were documented in the post-mortem. [169] The effect of the operation on the fatal wound was to make any post-mortem assessment of its size and depth prior to the operation difficult. [170] The hospital records state that on her admission the wound to her neck was observed to be “1 x 3cm” in size. [171]
169. See [100] to [114]
170. See [101] to [102]
171. Exhibit Y

(G) Crime scene observations

The officer in charge, Detective Senior Constable Sammut, arrived at the accused’s home at 11.25am on 22 July 2013. Detective Sammut identified a number of crime scene photographs, [172] which I infer were taken in the immediate aftermath of the transfer of Ms Vize and the accused to hospital. Four matters should be noted about those photographs.
172. Exhibit A
First, there was a significant amount of blood staining in the area where Mrs Quinn first saw the accused and Ms Vize (and where Mrs Quinn assisted Ms Vize). [173] Just near that location Ms Vize’s handbag was found. It was covered in blood. [174] There were blood stains on the adjacent wall. [175] Her blood stained clothes were located on the grass just near where she laid down and was attended to by Mrs Quinn and then by the paramedics. [176] There was a cigarette lighter on the ground and a pot plant in the area had fallen to the ground and smashed. [177]
173. Exhibit A photographs 8 and 9
174. Exhibit A photograph 11
175. Exhibit A photograph 15
176. Exhibit A photograph 9
177. Transcript at p 10
Second, on the grass verge just near the cement at the front of the house, a small brown handled blood stained knife was found. [178] The knife was approximately 20cm in length. The blade was bent. [179] DNA testing of the blood on the blade was a match for Ms Vize. [180] A hair was located on the blade but not tested for DNA. [181] A swab of the handle of the knife contained the accused’s DNA. [182]
178. Exhibit A photographs 10, 59 and 60
179. Exhibit A photograph 61
180. Transcript at p 71.38
181. Transcript at p 71.38
182. Transcript at p 71.45
Third, Detective Sammut stated that there were blood droplets on the steps leading to the verandah but not beyond. [183] The blood droplets contained the accused’s DNA. [184]
183. Exhibit A photograph 21-24; Transcript at p 11.46
184. Transcript at p 66.30
Fourth, both Ms Vize and the accused’s mobile phones were seized and analysed. [185]
185. see [157ff]); Transcript at p 45
Further, in his evidence the accused stated that after Ms Vize’s throat was cut he walked inside the house and washed blood off his hands in the sink. The Crown called evidence in reply concerning the forensic examination of the inside of the house. [186] The examination revealed that there was “no blood on the floor leading to the kitchen or on the kitchen floor”. The kitchen had a stainless steel twin-bowl sink and a single mixer tap in the centre. The right hand bowl was partially filled with soapy water. The left hand bowl was empty. The tap was pointed into the left hand sink. There was no blood located in the sink, on the mixer tap or in the areas around the sink. [187]
186. Transcript at p 518.1
187. Transcript at p 518.13

(H) Post-mortem analysis

The post-mortem was undertaken by Dr Kendall Bailey who gave oral evidence. The Crown also led evidence from a very experienced forensic pathologist, Dr Johan Duflou, as to whether some of Ms Vize’s injuries could have been deliberately inflicted, self-inflicted or the result of an accidental stabbing. [188]
188. Transcript at p 214.40

Dr Bailey

The results of Dr Bailey’s autopsy of Ms Vize were as follows. Dr Bailey observed the fatal wound to the carotid artery and jugular vein as well as four “superficial incised [ie slash] wounds” on the exterior of Ms Vize’s neck. [189] She concluded that the cause of death was massive blood loss. [190]
189. Transcript at p 198.19 and Exhibit GG at p.50
190. Transcript at p 210.15
With the fatal wound, Dr Bailey stated that she observed “a deep incised injury on the left side of the neck with underlying incised injury to the internal carotid artery immediately above the bifurcation of the common carotid artery”. [191] Dr Bailey explained that the “internal carotid artery is one of the major vessels of the neck that goes from the heart to the neck and up to supply the brain” [192] and the bifurcation of the common carotid artery is where the “carotid artery ... splits off and becomes the internal and the external carotid artery”. [193] Dr Bailey stated that Ms Vize’s “internal carotid artery had an incised injury” and there was “also an injury to the internal jugular vein which lies right next to it, which is the vein that drains blood from the brain”. [194] Dr Bailey explained that each of those veins is usually “half a centimetre or a centimetre wide”. [195] Dr Bailey estimated that those vessels “could be about 5 centimetres below the [exterior of the] skin” given the amount of subcutaneous tissue on Ms Vize’s neck. [196] Dr Bailey estimated that the fatal wound was 5 to 10 centimetres deep. [197] She observed that the carotid artery was partially severed and the jugular vein was “totally transected”. [198]
191. Transcript at p 197.35
192. Transcript at p 197.45
193. Transcript at p 197.46
194. Transcript at p 197.47
195. Transcript at p 198.4
196. Transcript at p 198.11
197. Transcript at p 198.10; T199.43
198. Transcript at p 200.33
Dr Bailey observed the effect of the operation on Ms Vize’s neck wound at Wollongong Hospital. She was aware that there was a “T extension” of the wound during surgery but could not determine if they “extended the original wound and made that longer or if they just added a T”. [199] The wound she observed was in a “V” shape with one limb 13cm in length and the other 8.5cm. [200] Dr Bailey also identified a large area of bruising around the neck area. [201]
199. Transcript at p 198.43
200. Exhibit GG a p1 and p5
201. Transcript at p 201.12
Dr Bailey observed four superficial incised wounds on the front of Ms Vize’s neck. They were marked as wounds A2 to A5 on Exhibit II. [202] Two of them were roughly horizontal. If one faced Ms Vize, the left end of wound A2 started approximately 40mm from the “midline of the neck” [203] and was 80mm in length. It was located 4cm from the fatal wound. [204] Wound A3 was located approximately 50mm below wound A2. It was “an essentially horizontally orientated linear incised wound … 75mm in length” which extended slightly over the midline. [205] Wound A4 was a 25mm wound that intersected with wound A3. Dr Bailey described it as a “very superficial, almost scratch-like wound that sort of almost joins up” with wound A3. [206] Wound A5 was located approximately 20mm below wound A2 and was approximately 9mm in length. [207] Dr Bailey described all of the incised wounds as “very superficial”. [208] Only wound A2 extended into the subcutaneous tissue. [209] Dr Bailey stated that each wound was “essentially orientated in the same way [resulting from] either a blade moving across the skin or the blade being stationary and the skin moving ... or both”. [210]
202. Exhibit II at p 5
203. Transcript at p 201.50
204. Transcript at p 201.35 – 202. 25; Wound “A2” in Exhibit GG at p 5
205. Transcript at p 202.32-41
206. Transcript at p 203.3
207. Transcript at p 203.13
208. Transcript at p 204.31
209. Transcript at p 204.34
210. Transcript at p 205.3
Dr Bailey stated that she could not say whether the person who inflicted the wounds stood behind or in front of Ms Vize or was left or right handed. [211]
211. Transcript at p 205.11

Second, Dr Furst assumed or inferred that the accused was suicidal before he stabbed Ms Vize. [496] Dr Furst reached that conclusion based on the close proximity in time between the two stabbings and the statements the accused made to his family after he stabbed himself. Dr Furst suggested that the accused may have been suicidal for “at least several minutes” prior to stabbing Ms Vize. [497] This aspect of Dr Furst opinion is consistent with the finding at [230].
496. Transcript at p 316.10
497. Transcript at p 316.31
Third, Dr Furst addressed the effect of the accused’s OCD on his mental disorder and capacities at the time of the offence. Dr Furst was asked to nominate what impulse the accused could not control that led to the accused stabbing Ms Vize. [498] He did not nominate any such impulse. Instead, he identified “an overwhelming sense of rejection, abandonment and basically becoming disordered and losing it in that sense rather than the need for a control and contamination” arising from OCD as the operative condition. [499] However, Dr Furst also stated that the OCD “probably [gave the accused] a baseline level of dysfunction,” [500] and that interacted with BPD and narcisstic traits in relation to interpersonal relationships. [501] Dr Furst stated that an “actual inference of how that disorder [ie OCD] and that part of that disorder [ie BPD] controls one behaviour and another disorder is probably going a little bit beyond what we can be certain about in psychiatry but we can talk about the likelihood of contribution of factors being relevant or not relevant”. [502] To that end, he agreed that it was likely that both conditions were operating on the accused’s mind on 22 July 2013. [503] In cross-examination, he was asked whether the accused was having difficulty with his OCD symptoms on 22 July 2013. [504] In response, Dr Furst referred to a history given by the accused of experiencing OCD symptoms in the two years prior to the offence and the statement of Mrs Quinn. [505] Later in his evidence Dr Furst nominated the accused’s excessive number of telephone calls to Ms Vize as “probably related to the OCD that he has”. [506]
498. Transcript at p 325.20
499. Transcript at p 325.26
500. Transcript at p 325.32
501. Transcript at p 325.36
502. Transcript at p 326.5
503. Transcript at p 326.13
504. Transcript at p 330.18
505. Transcript at p 330.20 and p 330.33
506. Transcript at p 333.8
Fourth, Dr Furst explained that BPD makes a person both more inclined to be jealous and fear abandonment, and affects the ability to temper or control their response to that fear. In cross-examination, it was suggested to Dr Furst that, if Ms Vize was deliberately stabbed, then the accused could have been motivated to act by jealousy. Dr Furst stated that, if that were the case, then it was not necessarily inconsistent with his capacity to control himself, being substantially impaired by BPD. [507] Dr Furst explained this as follows: [508]

“So the jealousy and fear of rejection or abandonment, classic description, is an underlying tendency they have by virtue of their personality structure. But, if sufficiently stressed, they might tip over and go into crisis of generally self‑harming or cutting oneself or attempting suicide and getting into what we call a mentally disordered state under the Mental Health Act type description.” [509]
507. Transcript at p 331
508. Transcript at p 331.35
509. Transcript at p 331

Fifth, like Dr Allnutt, Dr Furst was questioned about the interplay and potential inconsistency between the accused planning to stab Ms Vize on the one hand and whether his ability to control himself was substantially impaired on the other. Dr Furst accepted that the taking of the knife by the accused from the kitchen indicated “a degree of planning” [510] but stated that a person can be in a “disordered state” for “several minutes or hours before or after an event” [511] such that it is “variable in terms of the degree of disorder, degree of planning and degree of loss of control”. [512]
510. Transcript at p 332.5
511. Transcript at p 332.15
512. Transcript at p 332.16
It seems unlikely that Dr Furst’s reference to a “disordered state” equates to a state where the accused lacked the capacity to control his actions. At one point, I asked Dr Furst how long the lack of control he believed the accused experienced lasted. [513] He answered: [514]

“A. Yes, I can't say exactly, but I would imagine, your Honour, it was most likely at least several minutes before the stabbing of Ms Vize or at least some period of time beforehand.
Q. Wouldn't you need to know more about their interactions between each other that morning to be able to pick that type of period?
A. There was ‑ I think I recall, your Honour, that they were in the kitchen area or drinking some juice or something, but yes, happy to be taken back to the sequence of the Crown statement and the facts as alleged, I just ‑ I'm just making my opinion based on the likely duration of how long that would be.
Q. You weren't seizing on some particular interaction or event as precipitating the loss of control?
A. Not ‑ the evidence I'm giving now, I'm not picking a particular event as the trigger point of when that control was lost, no, your Honour, I'm just speculating as to how likely or how long it may have been‑‑
Q. Referring backwards, as it were‑‑
A. Trying to think backwards and do a retrospective analysis of his mental state at the time.” (emphasis added)
513. Transcript at p 333.21
514. Transcript at p 333.26

Later, Dr Furst was asked by the Crown: [515]

“[h]ow does your understanding of control accommodate this idea that it may be planned?
A. My guess, your Honour, I'm looking at control from a broader psychological or psychiatric perspective, perhaps, that once the accused made the decision to either kill himself or the victim and was in such a mental state that he decided that was the option for him and then carry through that action, I would regard that episode as being a sign of his mental disorder from the very beginning of his ‑ basically become suicidal and/or homicidal when arming himself, and whether he had one knife or two or three knives to do that job, I think you can't really draw too much inference as to what he was thinking at that point. He may have just wanted to make sure that he killed himself, for example.” (emphasis added)
515. Transcript at p 337.42

The first of these passages involves Dr Furst inferring back from the stabbing of Ms Vize that the accused experienced an impairment of his capacity to control himself “of at least several minutes”. In the second passage, Dr Furst (implicitly) assumes that the accused formed the intention to kill Ms Vize and himself at the time he armed himself in the kitchen, rather than at some earlier time. Thus, each of these passages only deals with the accused’s thoughts and actions from the time he grabbed a knife and leaves out any consideration of what occurred prior. In one sense this is understandable in that, while the events during that time have their mysteries, they are well documented. However, what is not documented or well-known is the accused’s mental processes prior to his seizing the knife. If they were known, then an assessment could be made as to when the accused became “suicidal and/or homicidal” before he armed himself which in turn would, or at least could, affect any assessment of whether his capacity to control himself was impaired when he stabbed Ms Vize.
In another part of his evidence, Dr Furst was asked whether the arguments that the accused had with Ms Vize on the evenings of Saturday, 20 July 2013 and Sunday, 21 July 2013 and his viewing of the text message from Ms Vize to Mr Meyers were precipitating factors that led to the accused stabbing Ms Vize. [516] Dr Furst replied: [517]

“they could have been the factors and that's still a reasonable possibility but, in my view, I would see these arguments and these constant phone calls and messages described in the brief as being evidence of him being in this unstable mental state for at least some days leading up to the event and that unstable mental state being a product of the disorders I mentioned earlier in evidence of his borderline personality disorder and his OCD.” (emphasis added)
516. Transcript at p 336.3
517. Transcript at p 336.7

If the reference to an “unstable mental state” in this passage was to the accused being substantially impaired in his capacity to control himself then that would not be consistent with [265] and [266]. However, I understand it to be a reference to some form of heightened, mental agitation that made the accused more susceptible to a loss of control on the morning of 22 July 2013.
The sixth is the relevance of Thomas’ evidence that the accused was non-responsive to screams and pleas on the morning of 22 July 2013. [518] Dr Furst considered that evidence to be “consistent with [the accused] being highly disturbed emotionally and in some type of abnormal state emotionally”. [519]
518. see [64] and [68] to [69]
519. Transcript at p 340.14

(C) Dr Olav Neilssen

Dr Neilssen interviewed the accused on 9 October 2013 and 12 December 2014. The detailed history that Dr Neilssen obtained from the accused and his version of the events of the morning of 22 July 2013 was generally consistent with his evidence and the matters noted in [240] to [243]. Only four additional points need to be mentioned.
First, the accused did not inform Dr Neilssen that he had been sexually abused by his school counsellor. [520] In contrast to what he told Dr Furst, the accused told Dr Neilssen that he first developed symptoms of OCD when he was “around the age of 11 … which he associated with watching a frightening scene in a movie.” [521]
520. Transcript at p 488.27
521. Transcript at p 489.14
Second, the accused told Dr Neilssen that Ms Vize wanted to commit suicide and that she was “begging” him not to leave. [522] I reject that assertion.
522. Transcript at p 483.14
Third, Dr Neilssen recorded the accused telling him that the incident at Wollongong in 2009 involved him having a fight with a friend and yelling at one of the staff members. [523] The accused stated that he received mandated counselling sessions from a psychologist and moved to the University of Sydney the following year. [524]
523. Transcript at p 489.37
524. Transcript at p 489.39
Fourth, Dr Neilssen recorded that the accused told him that he had been “thinking about committing suicide for some time prior to the offence and especially in the days before the offence itself.” [525]
525. Transcript at p 490.13
Dr Neilssen was provided with a substantial number of statements and reports, including from the psychiatrists who have treated the accused since the time of Ms Vize’s death. Dr Neilssen also interviewed Mrs Quinn. Dr Neilssen diagnosed the accused as having “Obsessive Compulsive Disorder in remission and depressive illness,” [526] although he later referred to the latter as a “mood disorder”. [527] Dr Neilssen's diagnosis of depressive illness was based on the same behavioural traits that Dr Allnutt and Dr Furst relied on to diagnose the accused with BPD, namely, sudden fluctuations in mood, sudden severe depression in response to setbacks such as rejection as well as acute reactions to perceived rejection. [528] Dr Neilssen stated that he included those matters “under the rubric of depressive illness” because he considered that a diagnosis of BPD was “scientifically … just not a reliable enough diagnosis to present to Courts.” [529] Dr Neilssen considered that BPD “only manifests itself when people are in crisis”. [530] Nevertheless, Dr Neilssen accepted that it is a “very distressing and disabling condition” [531] and he was “happy to concede that [the accused] meets accepted diagnostic criteria for Borderline Personality Disorder”. [532]
526. Transcript at p 497.24
527. Transcript at p 502.1 and p 502.50
528. Transcript at p 498.1 to 8
529. Transcript at p 498.9
530. Transcript at p 498.31
531. Transcript at p 498.41
532. Transcript at p 511.37
Dr Neilssen concluded that the accused had an abnormality of mind arising from an underlying condition, being his chronic OCD and mood disorder. [533] Dr Neilssen also concluded that the accused’s capacity to understand events and judge whether his actions were right or wrong was substantially impaired by his abnormality of mind. [534] The basis for each of these two conclusions is addressed below. Dr Neilssen also concluded that the accused’s capacity to control himself was substantially impaired by his abnormality of mind. [535] Dr Neilssen described the accused’s impairments as “moderate to severe”. [536]
533. Transcript at p 502.50
534. Transcript at p 503 to 504
535. Transcript at p 505.6
536. Transcript at p 506.18
Four matters should be noted about Dr Neilssen’s conclusion concerning the accused’s impaired capacity to control himself.
First, in cross-examination Dr Neilssen confirmed that in diagnosing the accused with OCD and a depressive illness he did not place much reliance on the accused’s account, but instead there was “ample additional information to confirm the presence of those conditions”. [537]
537. Transcript at p 508.25
Second, Dr Neilssen described the mechanism by which the accused’s capacity to control his actions was substantially impaired as follows: [538]

“His combination of disorders are likely to have had a significant effect on his ability to control his actions. His severe mood swings producing states of severe depression and also anger, and also the impairment in impulse control that goes with Obsessive Compulsive Disorder in those situations, between the combination of the two are likely to have affected his capacity for self‑control and significantly affected his capacity for self‑control.
…
There's extreme sudden mood swings with irrational anger and severe depression that can be triggered by small events and appear completely disproportionate and so it is a loss of emotional control.” [539]
538. Transcript at p 505.15
539. Transcript at p 511.43

Third, Dr Neilssen stated that the “emotional disturbance” involved in a loss of control “can last for sort of minutes, hours and days, you know, depending on the individual person and in the way they respond to setbacks, minor or major setbacks.” [540]
540. Transcript at p 512.13
Fourth, various question were put to Dr Neilssen concerning the level of planning involved in the stabbing of Ms Vize, which exposed the limits on the making of an assessment of the impairment of the accused’s capacity to control his actions in the absence of a reliable narrative from him. In his evidence-in-chief, Dr Neilssen was asked whether, if the accused’s account was rejected and instead there was a finding that the stabbing was deliberate, then “does the taking of the knife from the house suggest to you anything in terms of planning?” [541] Dr Neilssen responded: [542]

“Well, if it's ‑ I'd have to ask Mr Quinn, actually. I can't really know what's in his mind at that time, other than, it does appear that he's armed himself either to stab himself or stab another person.” (emphasis added)
541. Transcript at p 505.28
542. Transcript at p 505.30

Later Dr Neilssen was asked: [543]
543. Transcript at p 512.28

“Q. But the history of this man is that he considered killing himself the night before but didn't want to do it in the house with other people present. But then he gives a version of intending to kill himself the next day. Now, if you reject that completely as being a completely made up version, then the fact that he's put the knife in his pocket the next morning and then he's gone outside and stabbed Cherie Vize, that's indicative, is it not, not of a complete loss of control as indicated by a Borderline Personality Disorder, but it shows some planning; does it not?
A. Well, again, it's over a short period of time without proper forethought or consideration of the consequences. I mean - -
Q. But how do you know that? How do you know he didn't just consider this the previous night when he got up and he was thinking about, not so much about killing himself, but killing Cherie Vize?
A. Look, I don't know that, again, that's really for Mr Quinn to ‑ he's the only one who really knows exactly what was going through his mind. But certainly, taken as a whole, it does appear to be an impulsive and extreme overreaction to perceived rejection by a person who has those psychiatric vulnerabilities.
HIS HONOUR
Q. Can I ask about that, doctor. If the killing of Ms Vize, on this hypothesis as deliberate, and the personal attempt at suicide was part of the one plan, and that had been in contemplation for a period of time, that would at least impact upon an assessment as to whether there was a loss of control, I take it?
A. Yes, a degree to which there's been a loss of control according to a rational ‑ a calm and rational contemplation of the likely outcome.” (emphasis added)

(D) Abnormality of mind

I have already adverted to the difficulties in relation to the identification of the facts upon which the psychiatrists opined, especially in circumstances where I do not accept the evidence of the accused unless it is confirmed or corroborated by independent evidence.
In her comprehensive submissions, Ms Manuell SC sought to overcome this by pointing to the evidence of various prosecution witnesses, including the accused’s family, as demonstrative of his state of mind both prior to and on 22 July 2013. I have already accepted much of that evidence, including that which was relied on by the three psychiatrists to make their diagnoses. Ms Manuell SC also referred to a mental health care plan prepared by the accused’s GP, Dr Peter Allan, on 8 April 2008, [544] what was revealed concerning the accused’s second suspension from the University of Wollongong in 2009, [545] and the telephone records relating to the accused. [546] Ultimately, each of the psychiatrists referred to material of this kind as supporting their diagnoses of the accused and conclusions that the accused had an abnormality of mind. I accept that the independent evidence does justify those conclusions, although the extent to which it supports a finding of a substantially impaired capacity is another matter.
544. Exhibit 2
545. Exhibit NN
546. Exhibits V, W, EE and MM
Accordingly, I am satisfied on the balance of probabilities that, as at the time of the act that caused Ms Vize’s death, the accused suffered from an “abnormality of mind arising from an underlying condition”[547] being a “pre-existing mental or physiological condition, other than a condition of a transitory kind”,[548] namely, OCD and BPD.
547. Crimes Act; s 23A(1)(a)
548. Crimes Act; s 23A(8)

(E) Substantially impaired capacity to understand events

Both Dr Allnutt and Dr Furst did not accept that the accused’s capacity to understand events was impaired. Dr Allnutt’s opinion was that “his account” is not “consistent with a delusional belief” and that “while he might have misjudged his actions at the material time he had capacity to judge events.” [549]
549. Transcript at p 276.49; p 279.23
Dr Neilssen was the only one of the three psychiatrists who gave evidence after the accused. This allowed him the benefit of reviewing the transcript of the accused’s evidence. Dr Neilssen was of the opinion that the accused’s capacity to understand events was impaired because: [550]

“… he’s clearly got quite a distorted world view, which is evident perhaps in his evidence in the last couple of days, and I believe that was in operation at the time and also his – the effect of his severe mood swings would also alter his perception of events.” (emphasis added)
550. Transcript at p 503.12

Dr Neilssen nominated the accused’s apparent belief that Ms Vize was a threat to herself as one matter supporting his opinion that the accused’s capacity to understand events was substantially impaired. [551]
551. Transcript at pp 503 - 504

I do not accept these opinions of Dr Neilssen because I do not accept that it has been established on the balance of probabilities that, at the time he stabbed Ms Vize, the accused’s “world view” was distorted. I understand this “world view” to be a reference to so much of the accused’s evidence in which he stated that he ended the relationship with Ms Vize, that she wanted to get back together and that he saw his suicide as the only way in which Ms Vize would accept their relationship was over. [552] I accept that any such view, if it were held, was distorted. However, it follows from my earlier findings that I do not accept that the accused had that view at the time he stabbed Ms Vize. In particular, I do not accept that the accused believed that Ms Vize was a danger to herself at the time he stabbed her.
552. Transcript at p 421
In his evidence, Dr Neilssen was also asked: [553]

“Q. Doctor, what events of that morning was he distorted about?
A. Well, the perception of rejection, which may have been real, but the way he's viewed it, the effect of his behaviour on the likely consequences of his behaviour, how it might affect his family and other people who might have witnessed what's going on, of course, how it might affect Ms Vize, that he's somehow ‑ that somehow that he should kill her, that she wanted to die, perhaps, that‑‑
Q. Sorry, just going back. Where is there evidence that he had a distorted view that killing himself wouldn't, in the front yard, wouldn't have caused distress to his family?
A. Well it's more in the effect of his behaviour, the fact that he's set out to do it, without considering the full consequences of it. If he'd been able to calmly reflect on the possible consequences, he might reconsider his behaviour. But in his frame of mind at the time it seemed the right thing to do; I would call that a distortion of reality.” (emphasis added)
553. Transcript at p 504.12

These answers were predicated on an acceptance that, as at 22 July 2013, the accused correctly perceived he was being rejected by Ms Vize. That approach accords with my findings. However, the balance of the answer reverts to either making assumptions or drawing inferences about the accused’s mental state that are not established on the balance of probabilities. In particular, I do not accept that as at 22 July 2013 the accused believed that Ms Vize wanted to die. There is no independent evidence that Ms Vize, in fact, wanted to die or harm herself and there is no independent evidence that as at 22 July 2013 the accused believed she wanted to die or harm herself.
Similarly, there is no evidence that the accused set out to kill Ms Vize and then himself “without considering the full consequences” of his behaviour. I have found that he intended to kill Ms Vize and he intended to kill himself. There is evidence that he had ruminated on killing himself for some time. It is plausible that the accused adverted to the distress his actions would cause others but was indifferent to it. The contrary has not been shown. In the end result, there is no satisfactory evidentiary material capable of demonstrating that as at 22 July 2013, the accused’s “capacity to understand events” was impaired, let alone less substantially impaired.
I am not satisfied on the balance of probabilities that as at 22 July 2013 or beforehand the accused’s capacity to understand events was substantially impaired.

(F) Substantially impaired capacity to Judge whether his actions were right or wrong

Dr Allnutt did not accept that borderline personality traits or depression “impairs a person’s capacity to know right from wrong”. [554] Dr Allnutt considered that the accused’s infliction of self-harm after the deceased was stabbed was a reaction of “guilt, that he had done the wrong thing.” [555]
554. Transcript at p 279.27
555. Transcript at p 272.29
Dr Furst was referred to an opinion expressed by Dr Neilssen that the accused’s impaired capacity to know right from wrong derives support from his preparedness to harm himself in the presence of his mother and brother. He was asked: [556]

“… do you see that that particular factor impacts on Mr Quinn's capacity to judge right from wrong on the day of the incident?
A. I think that I would probably have a different interpretation or a different grade, if you like, of judging right from wrong, so I tend to see judging right from wrong as being driven by some moral justification or delusional thinking, for example, that the victim is possessed by a demon and it's right to kill the victim. That would be a clear example where one can't judge from right from wrong. Once you get into someone being mentally disordered and suicidal, suicide is wrong clearly in a moral sense and by community standards and it may be that his capacity to judge right from wrong is impaired that way but I wouldn't necessarily reach that threshold from my understanding of judging right from wrong. Others might, it's really up to the individual as to how they assess that.” (emphasis added)
556. Transcript at p 327.4

Although this answer refers to the accused only being suicidal, the question posed was predicated on an assumption that the accused deliberately stabbed Ms Vize.
As stated, Dr Neilssen was of the opinion that the accused was substantially impaired in his capacity to judge right from wrong. His reasons for that conclusion emerge from the following exchange: [557]
557. Transcript at pp 504 to 505

“Q. If I could take you please to ability to judge right from wrong. And I appreciate there might well be an overlap in your view relating to the respective capacities in 23(A)(1), but do you have anything to say specifically about an impairment he may have suffered to his ability to judge right from wrong?
A. Yes. Well, again, from his point of view at the time, his behaviour was the right thing to do, and that demonstrates an impairment in his ability to judge right from wrong.
Q. But you understand that people deliberately commit offences such as murder?
A. Of course.
Q. And that does not necessarily mean that they are substantially impaired in their ability to know right from wrong?
A. Yes.
Q. So how do you see the difference here?
A. Well, I mean, from the point of view of a person who has no regard for their own safety and for their own life and that he's already spoken about wanting to kill himself himself, from that point of view, he wouldn't care perhaps about the consequences of his actions because he doesn't care about his own safety, and in that sense, his ability to judge right from wrong is impaired from his point of view.” (emphasis added)

This extract again highlights the difficulty in determining what version of the events the psychiatrists, in this case, Dr Neilssen, were opining upon. The last answer suggests that Dr Neilssen was directing his attention to the accused’s act of stabbing himself. However, the issue presented by this part of s 23A(1)(a) of the Crimes Act concerns the accused’s capacity to judge whether his actions in deliberately stabbing Ms Vize were right or wrong. Section 23A(1)(a) refers to the impairment existing “at the time of the acts or omissions causing the death concerned”. Given the proximity in time between the accused’s action in stabbing himself and stabbing Ms Vize, it follows that an impaired ability to judge whether stabbing himself was right or wrong might throw some light upon whether his capacity to judge whether stabbing Ms Vize was right or wrong was impaired, but it is far from determinative. The fact that the accused may have showed no regard for his own safety in stabbing himself may or may not mean that he thought harming himself was capable of being morally justified. He might have thought he deserved it. He might have known that stabbing himself was wrong but did not care. However, except perhaps in the respect identified by Dr Allnutt in [295], none of this says much in this case about whether the accused’s ability to judge whether deliberately stabbing Ms Vize was right or wrong was impaired. In terms of an assessment of what is right and wrong, there is a qualitative difference between harming yourself and harming others.
The emphasised portions of the extracts in [296] and [298] highlight the significance of assessing an individual’s thought process to determine if their capacity to judge whether their actions were right or wrong was impaired. However, there is no evidence from either the accused or any other source capable of suggesting that his capacity in that respect was impaired.
As for Dr Allnutt’s opinion, noted in [295], it follows from the findings in [230] that I do not accept that the accused stabbed himself as a consequence of feeling guilty about stabbing Ms Vize. I have already found that as he walked to the front yard he had decided to kill her and then himself. It may be that his decision to stab himself after killing Ms Vize was made in the knowledge that he could not live knowing that he ended her life. However, in the absence of any evidence from the accused to that effect, that is pure speculation and can be put aside. Even if it were correct, it would not reveal an impairment of the accused’s capacity to judge whether his actions in stabbing Ms Vize were right or wrong.
I am not satisfied on the balance of probabilities that as at 22 July 2013, the accused’s capacity to judge whether his actions were right or wrong was substantially impaired.

(G) Substantially impaired capacity to control himself

The last capacity to consider is the accused’s capacity to control himself. I have summarised the evidence of each of Drs Allnutt, Furst and Neilssen on that topic at [249] to [255], [258] to [270] and [277] to [283] respectively.
I do not consider that the accused’s OCD made any significant or substantial contribution to any loss of control on his part at the time he stabbed Ms Vize. There is no evidence that his actions in stabbing her arose from his giving effect to any impulse or from frustration from being prevented from carrying out any such impulse. Further, there is no evidence that his actions were connected to any intrusive thought that weighed upon him. The only suggested connection between his OCD and his conduct towards Ms Vize was his evidence that he had some “ritual” or compulsion related to his OCD to contact her in the morning or at night that replaced his compulsion to clean or turn light switches off. I do not accept that his killing Ms Vize involved him giving effect to any impulse relating to his OCD. Although he was emotionally dependent on Ms Vize, there is insufficient evidence to suggest that she was part of the focus of his OCD.
I accept, as Dr Furst stated, that the accused’s OCD was a contributor to a level of dysfunction and agitation on his part. [558] However, given that none of those close to him were observing any significant amount of compulsive behaviours in the weeks prior to Ms Vize’s death, I am not persuaded that it made much of a contribution to any such level of dysfunction at the time of, and leading up to, the stabbing.
558. see [262]
As stated, I accept the diagnosis that the accused was affected by BPD. During a period when a relationship is ending or under strain, the accused’s BPD had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses. I have found that the accused was distressed about the breakup with Ms Vize and was refusing to accept that it would occur. He was emotionally dependent on Ms Vize and was desperate to contact and be with her. On the two previous nights they had argued. In those circumstances, I accept that the accused may have been “unstable” in the immediate period prior to the stabbing in the sense stated by Dr Furst at [268] and accordingly vulnerable to an impairment of his self-control. However, has a substantial impairment of his capacity to control himself at the time he stabbed Ms Vize been demonstrated on the balance of probabilities?
I have discussed the concept of control at [28] to [31]. While there is not necessarily an inconsistency between planning to kill someone and possessing a substantially impaired capacity for self-control, I accept the approach stated by Dr Allnutt, namely, that the “more planning is involved the less likely” it will involve a loss of control. Applying a “common sense” approach, [559] a spontaneous, random killing is more likely to be the product of an impaired capacity for self-control than a planned killing. In fact, the greater the level of planning and the longer the period between the formation of the plan and its implementation, the more likely it is that the accused “did not resist his impulse” as opposed to “could not resist his impulse.” [560]
559. see [30]
560. Byrne at 404; see [30]
There is no reliable direct evidence of the accused’s thought processes from the evening before Ms Vize’s death to the time he stabbed himself. At best, they can only be determined by drawing inferences from what has been demonstrated about his mental state generally, from the apparently calm period from when he woke up until he when he seized the knife and his violent actions thereafter. It is not clear how long the former period was, but the latter lasted no longer than 4 to 5 minutes.
From those actions it can be deduced that the killing involved some elements of planning, namely, the seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer a fatal would and the plan to kill himself. Of itself, that level of planning is not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control. However, what is not known is his thoughts and actions prior to his seizing the knife.
The analysis of the psychiatrists’ evidence set out above highlights the significance in this case of obtaining some form of reliable narrative from the accused as to when he formed the intention to kill Ms Vize and what steps he took to give effect to it. Dr Allnutt stated that it required a “forensic analysis of the behaviours that he engaged in in the time leading” up to the stabbing. [561] When he was asked about the significance of the accused seizing the knife and the possibility that he formed an intention to kill Ms Vize the night before, Dr Neilssen understandably said that he could not “really know what’s in [the accused’s] mind” and “he’s the only one who really knows exactly what was going through his mind” respectively. [562]
561. see [249]
562. see [289] to [283]
Further, for the reasons explained at [267], Dr Furst’s approach assumed or inferred that the accused became “suicidal and/or homicidal when arming himself”. However, in the absence of a reliable narrative from the accused, especially one that describes when he formed the intention to kill and what steps he took to give effect to that intention, why should it be assumed or inferred that the accused did not form a suicidal or homicidal intention before he seized the knife? Did the accused decide to kill Ms Vize in the days before but plan to do it at his home when his family were present? What was the accused thinking during the period from when he woke up to when he armed himself? Was he steeling himself to carry out a plan he had already formed or was he ruminating over his rejection and losing his capacity to control himself? None of these questions can be addressed yet each are of potential significance to an assessment of whether his capacity to control himself was impaired and, if so, whether any such impairment was substantial.
In the absence of a reliable narrative from the accused, I am not persuaded on the balance of probabilities that at the time he stabbed Ms Vize the accused’s capacity to control himself was substantially impaired.
It follows that the accused has failed to satisfy s 23A(1)(a) and his defence of substantial impairment fails.

(H) Section 23A(1)(b) of the Crimes Act

Section 23A(1)(b) requires the Court to consider whether the “impairment was so substantial” as to warrant a reduction in the accused’s criminal culpability. This involves a “value judgment”. [563] Given that I am not satisfied that the impairment was substantial it is neither necessary nor possible to make any finding in respect of this provision.
563. Trotter at 431

(8) Conclusion

It follows that I am obliged to find the accused guilty of murder. A verdict to that effect will be entered on the indictment.
I will fix the matter for submissions on sentence on 14 October 2016. If that date is not suitable to the parties then they should approach my Associate to obtain a further date.
Accordingly:

The Court finds the accused guilty of murder;

The accused is convicted of murder;

The Court directs that the proceedings standover for submissions on sentence on Friday, 14 October 2016 at 10.00am.

**********

Endnotes

Amendments

29 November 2016 - [304] typographical error

08 September 2016 - minor typographical errors

Decision last updated: 29 November 2016

Medium Neutral Citation:	R v Quinn (No 2) [2016] NSWSC 1244
Hearing dates:	8 August 2016, 9 August 2016, 10 August 2016, 11 August 2016, 15 August 2016, 16 August 2016, 17 August 2016, 18 August 2016, 19 August 2016, 22 August 2016, 23 August 2016, 24 August 2016, 25 August 2016 and 30 August 2016
Date of orders:	08 September 2016
Decision date:	08 September 2016
Jurisdiction:	Common Law - Criminal
Before:	Beech-Jones J
Decision:	(1) The Court finds the accused guilty of murder; (2) The accused is convicted of murder; (3) The Court directs that the proceedings standover for submissions on sentence on Friday, 14 October 2016 at 10.00am.
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – accused alleged to have stabbed ex-girlfriend – cause of death blood loss from stab wound to the neck – accused immediately stabbed himself in chest and neck afterwards – accused contended that stabbing accidental – accused also raised defence of substantial impairment – Crown case circumstantial – necessary to consider all circumstances established by evidence – whether any reasonable inference or conclusion open that is inconsistent with the conclusion that the accused deliberately stabbed deceased – Crown established deceased broke relationship off with accused and accused distressed by breakup – Crown established stab and incised wounds to the neck and defensive wounds to deceased’s hand – given nature of wounds and other circumstances of killing no inference reasonably open other than accused deliberated stabbed the deceased in the neck – only rational inference is that accused intended to kill deceased – substantial impairment – accused affected by obsessive compulsive disorder and borderline personality disorder – established abnormality of mind due to underlying condition – failed to establish substantial impairment of capacity to understand events or judge whether his actions right or wrong – absence of reliable narrative from accused meant failed to establish substantial impairment of capacity to control himself – partial defence of substantial impairment failed – accused guilty of murder
Legislation Cited:	Crimes Amendment (Provocation) Act 2014 (NSW) Crimes Amendment (Diminished Responsibility) Act 1997 (NSW) Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Haoui v Regina (2008) 118 A Crim R 331; [2008] NSWCCA 209 Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 R v Byrne [1960] 2 QB 396 R v Cheatham [2002] NSWCCA 360 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Kaewklom (No. 1) [2012] NSWSC 1103 R v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 R v Maric [2009] NSWSC 346 R v Murphy (1985) 4 NSWLR 42 R v Quinn (No 1) [2016] NSWSC 1101 R v Ryan (1995) 90 A Crim R 191 R v Spriggs [1958] 1 QB 270 R v Trotter (1993) 35 NSWLR 428 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v Baden-Clay [2016] HCA 35 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Category:	Principal judgment
Parties:	Regina Michael James Quinn
Representation:	Counsel: Mr M Hobart SC (Crown) Ms J Manuell SC (Accused) Solicitors: Ms K Speirs, Solicitor for Public Prosecutions (Crown) Mr C Cole, William O’Brien and Ross Hudson Solicitors (Accused)
File Number(s):	2013/275908
Publication restriction:	Nil