Uniting Church in Australia Property Trust (NSW) v Miller - [2015] NSWCCA 320

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Skelton v R [2015] NSWCCA 320
Hearing dates: 9 November 2015
Decision date: 16 December 2015
Before: Beazley P and Davies J at [1];
R S Hulme AJ at [161]
Decision:
(1)   Appeal against conviction dismissed;
(2)   Grant leave to appeal against sentence;
(3)   Appeal against sentence allowed;
(4)   Quash the sentence imposed by the trial judge and in lieu thereof sentence the appellant as follows:
The appellant is sentenced to imprisonment for a term of 2 years and 6 months commencing on 21 November 2014, with a non-parole period of 13 months.
(5)   Direct that the appellant is to be released to parole on 21 December 2015.

Catchwords:
CRIMINAL LAW – appeal – appellant stabbed stranger – history of mental illness and subsequent diagnosis of schizophrenia – appellant found guilty of reckless wounding, contrary to the Crimes Act 1900, s 35(4) – found not guilty of wounding with intent to cause grievous bodily harm, contrary to the Crimes Act, s 33(1)(a)

CRIMINAL LAW – directions to jury – whether trial judge erred in giving directions on defence of mental illness – whether direction in relation to whether appellant had capacity to know what he was doing was wrong required direction that such capacity did not turn on whether he knew his actions were illegal

CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of appellant’s mental illness – whether trial judge bound by jury verdict to consider impairment in capacity to know actions were wrong was not substantial

CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of applicant’s offer to plead guilty to charge of which he was ultimately convicted
EVIDENCE – cross-examination – whether manner of cross-examination of appellant gave rise to unfairness – Evidence Act 1995, ss 41, 44
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases Cited: ARS v R [2011] NSWCCA 266
Da-Pra v R [2014] NSWCCA 211
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
GWM v R [2012] NSWCCA 240
Hassan v R [2010] VSC 352
Jubraeel v R [2015] NSWCCA 131
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Libke v The Queen [2007] HCA 30; 230 CLR 559
Morton v R [2014] NSWCCA 8
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Anderson [2012] NSWCCA 175
R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357
R v Israil [2002] NSWCCA 255
R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported)
R v Oinonen [1999] NSWCCA 310
R v Pratt [2009] NSWSC 1108
R v Windle (1952) 2 QB 826
R v Z [2006] NSWCCA 342
Stapleton v R [1952] HCA 56; 86 CLR 358
ZZ v R [2013] NSWCCA
Category: Principal judgment
Parties: Cameron Skelton (Appellant)
Regina (Respondent)
Representation:
Counsel:
P Boulten SC; S Buchen; G Huxley (Appellant)
M Cinque SC (Respondent)
Solicitors:
Murphy’s Lawyers Inc (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/297694
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

31 March 2015

Before:

Culver DCJ

File Number(s):

2012/297654

HEADNOTE

[This headnote is not to be read as part of the judgment]

This case related to the stabbing by the appellant of the victim, who was at that time unknown to him, at the Brighton Hotel on Oxford Street in the early hours of 23 September 2012. The appellant was found guilty after a trial before Culver DCJ and a jury of one count of reckless wounding, contrary to the Crimes Act 1900 (NSW), s 35(4). That offence was the alternative count on the indictment, the principal charge being a count of wounding with intent to cause grievous bodily harm contrary to the Crimes Act, s 33(1)(a). The appellant was sentenced to a total term of imprisonment of 3 years, with a non-parole period of 18 months.

The appellant appealed against his conviction pursuant to the Criminal Appeal Act 1912 (NSW), s 5(1)(a) and sought leave to appeal against his sentence pursuant to s 5(1)(c).

On the evening of the stabbing incident, the appellant had attended the end of year ball of the National Art School, where he was enrolled as a student. He acquired the knife at the ball, and gave evidence that he often picked up things he found. He started to “blank out” after leaving the ball and walking towards the Oxford Hotel, and he had no memory of what had occurred there. The incident was captured on the hotel’s CCTV camera system. It appears that the appellant approached the victim at the bar and stabbed him in the course of a brief struggle. The victim was treated with three stitches and spent a short time in hospital.

The appellant was given bail and was diagnosed with schizophrenia while being treated as an inpatient at a mental health clinic. He had a history of mental illness which included treatment for Attention Deficit Hyperactivity Disorder (ADHD) from age seven and treatment for depression and anxiety, including by medication. There was some evidence that he had experienced paranoid episodes and ‘black outs’ prior to the stabbing incident.

The appellant raised two grounds in respect of his appeal against conviction: first, that a miscarriage of justice was occasioned by the manner in which he was cross-examined by the Crown Prosecutor; and secondly, that the trial judge failed to give adequate directions to the jury in respect of the mental illness defence, particularly in respect of a direction that the “second branch” of the M’Naghten test, relating to the appellant’s capacity to understand the wrongfulness of his actions, did not turn upon whether he knew his actions were illegal.

The appellant raised a further two grounds in respect of his application for leave to appeal against sentence: first, that the sentencing judge gave insufficient weight to the evidence concerning his mental condition; and secondly, that her Honour gave an insufficient discount for the appellant’s offers to plead guilty to reckless wounding.

Held:

Beazley P and Davies J, dismissing the appeal against conviction:

(1) Neither any specific element of the Crown Prosecutor’s cross-examination of the appellant, nor its cumulative effect, was unfair in the sense that warrants appellate intervention. It is true that some elements of the cross-examination may have been objectionable, and the appellant may have been occasionally confused. However, any unfairness that might have arisen in those instances was resolved in further questioning or by appropriate management by the trial judge. [95].

Libke v The Queen [2007] HCA 30; 230 CLR 559

(2) The trial judge’s directions to the jury in respect of the mental illness defence were adequate. There was no requirement that a jury must be directed that the test for whether a person knew his actions were wrong was not concerned with whether the person knew that his actions were illegal. [118]-[123].

Stapleton v R [1952] HCA 56; 86 CLR 358; R v Windle (1952) 2 QB 826

R S Hulme AJ, dissenting on the appeal against conviction:

(3) The number and nature of the Crown Prosecutor’s errors in cross-examination of the accused amount to a miscarriage of justice. [34]-[35].

Beazley P and Davies J, R S Hulme AJ agreeing, granting leave to appeal against sentence and allowing the appeal

(4) The trial judge, in sentencing the appellant, failed to adequately take account of the extent to which his mental condition reduced his moral culpability. In particular, her Honour erred in determining that she was required to undertake the sentencing exercise on the basis that any impairment in the appellant’s ability to appreciate his actions were wrong was not significant. Rather, the jury’s verdict left open the possibility that the appellant was impaired in that ability to some degree. [135]-[141]

R v Israil [2002] NSWCCA 255; R v Z [2006] NSWCCA 342; Hassan v R [2010] VSC 352; GWM v R [2012] NSWCCA 240; ZZ v R [2013] NSWCCA; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1

(5) Contrary to the findings of the trial judge, general deterrence had no real role to play in the sentencing process, as the appellant’s significant mental illness precluded him from being an appropriate medium for the making of an example to others. [146].

R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported); Muldrock v R [2011] HCA 39; 244 CLR 120.

(6) The trial judge gave insufficient allowance for the utilitarian value of the appellant’s offer to plead guilty to the reckless wounding offence in the District Court, the offence of which he was ultimately convicted. The appropriate discount was 20 per cent rather than 15 per cent. [150]-[152].

Morton v R [2014] NSWCCA 8; R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357; R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535

Judgment

BEAZLEY P and DAVIES J: The appellant, Cameron Skelton, was found guilty after a trial before Culver DCJ and a jury of one count of reckless wounding, contrary to the Crimes Act 1900 (NSW), s 35(4). That offence was the alternative count on the indictment, the principal charge being a count of wounding with intent to cause grievous bodily harm contrary to the Crimes Act, s 33(1)(a). A conviction of the related offence of possessing a knife in a public place was also recorded but no further penalty was imposed.
The offence of reckless wounding carries a maximum penalty of imprisonment of 7 years. A standard non-parole period of 3 years applies: the Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A. The appellant was sentenced to a total term of imprisonment of 3 years, with a non-parole period of 18 months. The term was backdated to commence on 21 November 2014 so as to take account of the period of 119 days during which the appellant had been in custody prior to sentencing. Account was also taken of a period of 21 days in which the appellant was in residential rehabilitation. The non-parole period is thus to expire on 20 May 2016.
The appellant appeals against his conviction pursuant to the Criminal Appeal Act 1912 (NSW), s 5(1)(a) and seeks leave to appeal against his sentence pursuant to s 5(1)(c).
The charges related to the stabbing by the appellant of the victim, Blair Sidhu, at the Brighton Hotel on Oxford Street in the early hours of 23 September 2012. The incident was captured on the hotel’s CCTV system. The victim was, at that time, unknown to the appellant.
It was not at issue in the trial that the appellant stabbed Mr Sidhu and thereby wounded him. Rather, the question for the jury was whether the appellant had the requisite mental state to be found guilty of either the principal or alternative offence with which he was charged or whether he was not guilty by reason of the defence of mental illness.
The jury’s not guilty verdict on the principal charge meant that the jury was not satisfied that the appellant intended to cause the victim grievous bodily harm. The guilty verdict on the reckless wounding count meant that the jury considered that the appellant was reckless as to causing the victim actual bodily harm and that he had not established the defence of mental illness.

Factual background

The incident

The appellant gave evidence that, on the day leading up to the incident, he had spent the day with his father building a studio at the back of their house. He had smoked cannabis during the day. He was attending the National Art School at the time and the school’s end of year ball was that evening. The appellant had initially planned not to go to the ball, but his friend Hugo Fisher had arrived at the house and told him he should go.
The appellant first went to Mr Fisher’s house, where, on Mr Fisher’s evidence, he had one beer before they went to the ball, arriving at about 8.30 pm. The appellant gave evidence that he drank at the ball, but that he was not a big drinker and did not like the drinks on offer. He said that he talked to a few people he knew but he mostly just sat there all night.
The appellant gave evidence that he picked up the knife at the ball. It was a folding knife. When cross-examined as to why he had picked it up, he answered “[b]ecause I usually pick things up and collect them. I work with found objects and sculpture”.
The appellant was not sure when he left the ball but recalled leaving with a friend and walking down Oxford Street to the Brighton Hotel. In cross-examination, he agreed that the Brighton Hotel was a place where he felt comfortable because it was a place where he used to drink with his friends.
The appellant said that he started to “blank out a bit” as he was walking to the hotel and that he could not recall entering the hotel or anything that happened there. He said that viewing the CCTV footage of the incident had not assisted him to recollect anything.
The victim had arrived at the hotel at about 1 am with his girlfriend, Lauren Brown, and a number of other friends. They had been drinking at various hotels around the city earlier that night, and he had taken half a cap of MDMA. At about 2:25 am the victim observed the appellant sitting across from him, a table away, and noticed that he “looked a bit crazy in the face, in the eyes”. He commented on the appellant to Ms Brown and to another friend. Ms Brown said it was unlikely that the comment to her was heard as it was very loud in the hotel. Another friend, Claudia Pearce, said the appellant “wouldn’t stop staring at [the victim]”.
The victim gave evidence that he went to the bar approximately 10 to 15 minutes after making the comment about the appellant. The appellant approached the victim and came “really close” to him. The victim pushed him away. Ms Brown gave evidence that the appellant put his arm around the victim’s neck and said something to him at which point they started pushing each other and “got into a bit of a fight”. Another witness, Ms Vareslija, said that “the dispute” between the appellant and the victim lasted about 20 seconds. As noted above, the incident was recorded on the hotel’s CCTV camera.
The victim was not immediately aware that anything serious had happened to him. However, when Ms Brown walked over to the victim, she noticed blood dripping on his shoes. She lifted his shirt and told him he had been stabbed. Ms Brown told the bartender to call the police and then went outside with the victim, who was beginning to lose consciousness.
Mr Richard Gold, the hotel’s security guard, entered the venue when he saw the panic light go on. He gave evidence that as he approached the appellant, the appellant tried to covertly pass the knife to his friend. Mr Gold grabbed the knife from the appellant and told him that he needed him to come outside with him. Mr Gold said that the appellant then told him to “throw him [the victim] out first, as he started it”, and then said, “you have to take him first or I’ll stab him again”. At that stage, Mr Gold had already taken possession of the knife.
Shortly thereafter, police officers arrived and the appellant was taken into custody. He spent three or four days in the mental health unit at Silverwater Correctional Centre before being placed with the general prison population. Dr Olav Nielssen, forensic psychiatrist, saw the appellant on 5 October 2012 and arranged for his admission to the Hills Clinic, a private psychiatric health service. On 9 October, the appellant was released on bail and spent three weeks as an inpatient at the Hills Clinic, where he saw Dr Edward Cassidy. He has continued to receive outpatient treatment from the Clinic.
The victim was taken by ambulance to St Vincent’s Hospital, having sustained a three-centimetre wound to his left abdominal area that penetrated to the muscle layers. The wound was closed with three stitches and he was released from hospital the next day.

Evidence on the appellant’s medical history and condition

At the time of the offence, the appellant was 21 years old and was in his second year at the National Art School. He was living with his parents. The appellant and a number of witnesses gave evidence that he was substantially introverted, rarely went out, did not enjoy large crowds of people, and was only comfortable with people he knew well.
The appellant had a history of mental health issues. He was diagnosed with attention deficit hyperactivity disorder (ADHD) at age 7 and was treated with various medications, principally dexamphetamine, until he was in about Year 10. He saw a number of psychiatrists and psychologists during his adolescence. In a report of Dr Melissa Barrett of the Black Dog Institute, dated 10 August 2011, a question was raised whether the appellant may have been suffering bipolar disorder. He was prescribed Zoloft for depression and mood disorder, but stopped taking it a few weeks before the incident.
The appellant was examined in detail on his use of drugs. He gave evidence that, in September 2012, his general daily consumption of cannabis was slightly over a gram per day, although in cross-examination he agreed that he was using half an ounce to an ounce (about 15 to 30 grams) per week. He also said that he had used LSD, ecstasy, amphetamines and cocaine in the past, but was not using them on the evening of the incident. He said that, in the period before September 2012, he was “using a lot more drugs, not just cannabis anymore, I was kind of doing a bit of everything and large quantities of it … self-medicating”. The jury were given a direction that the evidence of use of illegal drugs could not be used to impute dishonesty to the appellant or as evidence of a tendency to commit the offences with which he was charged.
The appellant gave evidence that he started experiencing paranoia from the end of Year 11. He said that his paranoia involved strangers and that he felt hostility from people. He said he would not go to places by himself. He said he did not discuss his paranoia with health professionals or his family prior to the incident. However, Dr Nielssen gave evidence that he had become aware from the medical records with which he had been provided that the appellant had been seeing his General Practitioner, Dr Telan, for various mental issues, including paranoia.
Mr Fisher and the appellant’s parents, Mr and Mrs Skelton, gave evidence that the appellant had become thinner, more reclusive and isolated in the period leading up to the offence. The appellant gave evidence that he had attempted to commit suicide a week before the incident, and that that was the second time he had done so. In that period, on 14 September 2012, the appellant saw Kathi Pauncz, psychologist. Ms Pauncz’s notes from that consultation were in evidence and recorded that the appellant had told her that the past year had made a big difference and that he did not want to be involved in the drug scene. In cross-examination, the appellant said that he would go to sessions with Ms Pauncz and “present a false life”.
Four medical experts were called:

Dr Stephen Allnutt, forensic psychiatrist engaged by the Crown, who saw the appellant once, on 26 September 2013;

Dr Bruce Westmore, forensic psychiatrist engaged by the appellant, who saw him on 4 November 2013;

Dr Olav Nielssen, psychiatrist retained by the appellant;

Dr Edward Cassidy, consultant psychiatrist at the Hills Clinic and the appellant’s treating psychiatrist.

All of the experts agreed that the appellant was suffering from a disease of the mind at the time of the incident.
Dr Cassidy diagnosed the appellant with schizophrenia during his time at the Hills Clinic. There was no dispute between the experts about the correctness of that diagnosis.
Dr Allnutt was of the opinion that the appellant “was likely depressed at the time [of the incident] and that would be sufficient to conclude that he had a disease of the mind”. He also gave evidence that the appellant was “likely paranoid” and that although he was “not entirely clear that [the appellant] was psychotic in the full sense of the term”, he “could not definitely rule that out either”.

Dr Westmore considered that the appellant was in the transition phase between the prodromal phase of schizophrenia and psychosis, or may have gone into psychosis, at the time of the incident.
Drs Allnutt, Westmore and Nielssen agreed that the appellant knew the nature and quality of his act in stabbing the victim.
In Dr Westmore’s opinion, the appellant was undoubtedly paranoid about the victim, but his amnesia precluded any determination of the extent or content of those views. Dr Nielssen agreed that it was likely that the appellant was generally paranoid at the time of the attack and that he experienced a “specific paranoid ideation” in relation to Mr Sidhu.
The question whether the appellant had the capacity to know that his actions in stabling the victim were wrongful caused the experts the most difficulty, particularly in the context of his amnesia.
Dr Allnutt considered that it was a “borderline situation” but that his position was “equivocal falling on the side that he likely maintained that capacity”.
Dr Westmore considered that, particularly on the basis of the “extremeness of [the appellant’s] behaviour”, a court might be able to come to the conclusion that he was compromised in his ability to reason in relation to his actions but that “a psychiatrist can’t say it because … [the psychiatrist] can’t get a history as to precisely what [the appellant] was thinking at the time”. Nevertheless, in his opinion, the appellant “on the balance of probabilities … was compromised to some degree”.
Dr Nielssen’s position was that:

“… because of [the appellant’s] mental illness … he wasn’t able to reason with sense and composure about the wrongfulness at the time that [he] believes that he’s under threat, or that he’s being provoked by the victim on a delusional basis … and he’s responded.”

Dr Cassidy agreed that he was unable to resolve whether the appellant knew whether what he was doing was wrong. He considered that, given the sequence of events including the incident, the history of deterioration and the subsequent diagnosis of schizophrenia, that would be “very suggestive that he was acutely psychotic at the time, but … I would see this is a jury’s role”.

Appeal against conviction

The appellant raised two grounds in respect of his appeal against conviction:

(1) That a miscarriage of justice was occasioned by the manner in which the Crown Prosecutor cross-examined the appellant: ground 1;

(2) That in the course of directions on the mental illness defence, the trial judge erred by failing to give adequate directions in respect of the “second branch” of the M’Naghten test. In particular, her Honour failed to explain that the appellant’s capacity to understand the wrongfulness of his actions did not turn upon whether he knew his actions were illegal: ground 2.

Ground 1: miscarriage of justice occasioned by the manner of the Crown Prosecutor’s cross-examination

It is convenient to commence consideration of this ground of appeal by reference to the duties of cross-examiners in relation to the form and method of questioning. Those duties have a statutory basis pursuant to the Evidence Act 1995 (NSW), s 41. That section provides:

“41   Improper questions
(1)   The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a "disallowable question" ):
(a)   is misleading or confusing, or
(b)   is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or
(c)   is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or
(d)   has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

(2)   Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:
(a)   any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and
(b)   any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and
(c)   the context in which the question is put, including:
(i)   the nature of the proceeding, and
(ii)   in a criminal proceeding-the nature of the offence to which the proceeding relates, and
(iii)   the relationship (if any) between the witness and any other party to the proceeding.

(3)   A question is not a disallowable question merely because:
(a)   the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness, or
(b)   the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(4)   A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)   However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)   A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.”

The Legal Profession Uniform Conduct (Barristers) Rules 2015, r 61, also provides, relevantly, that:

“A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material then available to the barrister, …”

One relevant aspect of the duty to avoid questions which are misleading, confusing or harassing is the general prohibition on the use of compound questions. The vices of such questions were discussed by Heydon J in Libke v The Queen [2007] HCA 30; 230 CLR 559, at [127]:

“ ‘A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Secondly, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address’. But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer – either ‘Yes’ or ‘No’. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. …” (citations omitted)

The appellant submitted that the manner in which he was cross-examined by the Crown Prosecutor, in circumstances where he was mentally unwell, in that he was suffering from schizophrenia, was taking antipsychotic medication and was affected by drowsiness as a side-effect of the medication, was unfair such as to amount to a miscarriage of justice. He submitted that given these circumstances, the Crown Prosecutor was required, in accordance with the requirements of the Evidence Act, s 41, to cross-examine him with an appropriate degree of caution and restraint. The appellant submitted that in such circumstances, the cross-examiner was required to:

frame the questions put in cross-examination clearly and unambiguously so as not to cause avoidable confusion;

refrain from unduly repetitive or aggressive questioning and refrain from sarcastic or ridiculing comment;

refrain from asking questions with inadequate or inaccurate factual foundations; and

avoid compound questions and argumentative questions or comments.

The appellant, although contending that the cumulative effect of the cross-examination was unfair, identified six aspects of the cross-examination in which he contended that the Crown Prosecutor particularly transgressed in one or more of the above respects. Those six aspects, in the order in which we will deal with them, were:

Cross-examination on alleged premeditation and the discharge application;

Cross-examination on the appellant’s plans to go to the ball;

Cross-examination on the history given to Ms Kathi Pauncz;

Cross-examination suggesting that the appellant made up his illness;

Cross-examination on the occurrence of auditory hallucinations;

Cross-examination on the history of drug consumption given to Dr Allnutt.

In oral argument, the appellant’s first complaint was in relation to the initial cross-examination, where, after the appellant stated at the end of his examination in chief that the medication he was taking, Seroquel, caused him to be “half asleep most of the time” and had an impact on his recalling things, the Crown Prosecutor asked him the following questions:

“Q. You’re not half asleep now, are you sir?
A. No.
Q. You sure about that?
A. Positive.
Q. What drugs are you on at the moment?
A. Well, I’ve had Seroquel last night and I’ve had Nausetil this morning.
Q. You’re absolutely sure that you’re able to answer my questions, are you?
A. Yes, I am.”

In our opinion, given that the appellant was suffering from a mental condition and had given evidence that the medication he had been prescribed made him drowsy, the Crown Prosecutor was entitled to commence his cross-examination with questions that established that the evidence the appellant gave thereafter was not affected by problems associated with those matters.

Cross-examination on alleged premeditation

In argument, the appellant referred to cross-examination on this topic being the worst of the cross-examination. This line of questioning related to the Crown contention that before stabbing the victim, the appellant had already planned to claim that the victim had started the fight between them. The relevant exchange was as follows:

“Q. What I'm suggesting to you is that you had planned, before you stabbed Mr Sidhu, to make a claim that the victim started it?
A. I don't know.
Q. I'm suggesting to you - and you can disagree with this, that the reason why you went up to Mr Sidhu and I suggest said something to him in his left ear - very close - do you understand?
A. Yes.
Q. Was because you wanted him to react, didn’t you?
A. I disagree. I also can't say.”

The appellant complained that there was no proper factual foundation for those questions and the only evidence relating to them was that given by Mr Gold, the security guard, that, after the appellant and the victim were separated, the appellant had told Mr Gold that the victim had started it: see above at [15].
The appellant accepted that had the form of the first question above been different so as to ask, “had you planned before you stabbed the victim to claim that he had started it?”, it may have been unobjectionable. He contended however, that to put to a witness a positive proposition carried with it the suggestion that there was a basis for it in the evidence. In circumstances where that was not so, such a question was contrary to the Evidence Act, s 41 and contrary to fairness. The appellant contended that such questioning was confusing to a witness and delayed the process of trial, creating an extra burden on the witness and the court in considering what was appropriate and what was inappropriate in the questioning.
The appellant also contended that the cross-examination thereafter similarly offended the principles governing cross-examination. That cross-examination was as follows:

“Q. And you knew when you went into the hotel that you had a hunting knife in your pocket?
A. No, as I said I can’t remember going into the hotel, so I can’t answer that question with my memory.
Q. Well, you remember walking down Oxford Street to the pub?
A. Yes, I do remember walking down Oxford Street.
Q. You must remember then that you didn’t dispose of the knife on the way down, did you?
A. No.
Q. Because you had the knife in the pub?
A. I had it in my pocket.
Q. Yes, in the pub?
A. No, when I was walking down the hill.
Q. Yes, and in the pub too?
A. I can’t remember.
Q. But you accept, don’t you, that you have seen the CCTV footage?
A. I have seen the CCTV footage, but from my memory of the pub – I have none.
Q. But you accept, don’t you – having seen the footage, and having heard Mr Gold, you accept don’t you that you had the knife in the pub?
A. Yes.
Q. No doubt about it?
A. No.
Q. I want to suggest to you that the reason that you took the knife into the pub was because you intended to stab someone with it?
A. No.
Q. When you got into the pub you lined up Mr Sidhu and you stabbed him?
A. I can’t say.” (emphasis added)

The appellant contended, in particular, that the bolded question above was improper, in that it did not have any foundation in the evidence and that the cross-examiner was merely “winging it”.
Trial counsel did not object to any of this questioning. However, it appears that immediately after the last question was answered, the trial judge asked the jury to leave the court, and reproached trial counsel for audibly sniggering at the questions being asked in cross-examination. That led to a lengthy exchange between her Honour, trial counsel and the Crown Prosecutor as to the appropriateness of the line of questioning that had been engaged in by the Crown Prosecutor and, relevantly, as to the Crown case on intention. The following relevant exchange occurred:

“CROWN PROSECUTOR: … there has been a case from the start about intent. The Crown case has been, right from the beginning that it was an intentional wounding.
…
CROWN PROSECUTOR: … the Crown case now being a premeditated wounding and a premeditated wounding that [the appellant] had before he entered the hotel so he says, I’ve never put that at all. My case has always been that he went from where he was sitting, staring at [the appellant], got up, went over and stabbed him. I haven’t put that he had that premeditated view before the hotel. [emphasis added]
HER HONOUR: I think you put it to [the appellant] in cross-examination that he went into the hotel with the intention that he wanted to stab someone. Someone.
CROWN PROSECUTOR: If I’ve put that then that needs to be corrected. I’ll have to look at the transcript.
…
CROWN PROSECUTOR: I thought I put to him that he went into the hotel knowing that he had a knife.
…
CROWN PROSECUTOR: … if it’s wrong I can correct it, but I was never going to put the jury that he had the intention as he was walking down Oxford Street.
…
HER HONOUR: ... Mr Crown, to be clear then, your intention would be to put a further question to [the appellant] that would clarify that what you’re putting to him is that he formed the intention to stab Mr Sidhu at some time whilst in the pub?
CROWN PROSECUTOR: Yes, that he had the intention in the pub – not when he commenced to have the intention, or when it finished, but when he was sitting staring he had the intention.”

Upon resumption of the cross-examination, following this exchange, the Crown Prosecutor stated to the appellant that he had made a mistake in suggesting that the appellant had formed an intention to stab the victim as he was walking down Oxford Street. The trial judge then intervened and asked the appellant whether he understood what was being withdrawn and what was now been put to him.
Her Honour then invited trial counsel to let her know if there was an issue as to what she had said. Trial counsel responded that it might be better if the Crown Prosecutor withdrew the allegation as to having had any intention whilst walking down the street. The Crown Prosecutor did so.
The Crown Prosecutor then said to the appellant that what he was putting was that when the appellant was in the hotel he formed the intention to stab the victim. The appellant said that he understood what he was being asked, but that he could not say whether he agreed with that proposition or not.
Senior Counsel for the appellant submitted that the appellant was confused about the propositions being discussed. We do not agree. It is apparent from the transcript that the appellant knew what had been asked, what had been withdrawn and what the new question was that was being put to him. His response, that he could not say whether he agreed or not that he had the intention to stab the victim in the hotel is indicative of his understanding of the questioning and consistent with his evidence that he was totally amnesic about what occurred in the hotel.

Cross-examination on the appellant’s plans to go to the ball

During the course of the cross-examination on this topic, there was a double barrelled question that was the subject of objection and was reformulated. Complaint was made about the following cross-examination:

“Q. You understand that I’m suggesting to you that you had conversations with your two good friends, right?
A. Yes.
Q. And you planned to go to the ball?
A. No I didn’t – I didn’t usually follow through with things that I agreed to doing.
Q. I’m not asking you that --
[TRIAL COUNSEL]: I object --
CROWN PROSECUTOR
Q. I’m not asking you that sir, you planned to go to the ball?
A. I said I’d planned -
HER HONOUR: [Trial counsel] if you’re going to object you need to stand so I know you’re pursuing the objection.
[TRIAL COUNSEL]: I know your Honour but my friend was going on so I didn’t want to --
HER HONOUR: That’s the point of you standing; so I can cause a pause of the proceedings.
[TRIAL COUNSEL]: Your Honour I think the question is meaningless in terms of using the word ‘planning’ in light of the full answer. It’s word play your Honour, with respect.
HER HONOUR: I’m not seeing that at this stage but I think Mr Crown was moving on to the next point in any case.
CROWN PROSECUTOR
Q. Sir, I’m suggesting to you that at some point before the ball you had conversations with your friends which led to you planning to go to the ball, whether you’d decided to follow through with that or not?
A. Yes, that’s true.
Q. No doubt about that is there?
A. No.
Q. You can remember those conversations can’t you?
A. No I can’t.
Q. But you know they happened don’t you?
A. Well Hugo said they did so.
Q. I’m not asking you about Hugo, you know that you planned?
A. Yes.
Q. No doubt about that?
A. Yes.” (emphasis added)

The appellant submitted that this cross-examination was ambiguous and particularly complained that the bolded question was unfair and that he only agreed that he had planned to go to the ball based on Hugo’s evidence.
In our opinion, this is not a fair reading of the cross-examination, nor do we consider that it was it productive of any unfairness.
The appellant further complained of the cross-examination that occurred shortly thereafter, as follows:

“Q. But on this occasion you were someone who wanted to attend things like that weren’t you?
A. That’s questionable.
Q. It’s not questionable sir, you dressed up, you planned it and you went, correct or not?
A. Yes.” (emphasis added)

The Crown accepted that second of these two questions was objectionable, although not the subject of any objection by trial counsel. The Crown submitted, however, that it was only one of two such objectionable questions asked and of which complaint is now made. It was submitted that in the course of a lengthy cross-examination, the asking of two impermissible questions was not so unfair such as to constitute a miscarriage of justice.
Compound questions are generally impermissible, not least because it is usually not possible to ascertain which part of the question has been answered: see Libke, above at [38]. The question in this case may not have had that vice, as it was, in effect, a ‘wrapped up’ summary of the previous questioning. But in any event, as the Crown has pointed out, an occasional objectionable question in the course of a lengthy cross-examination rarely, if ever, gives rise to a miscarriage of justice. It should be noted that the question in this case did not fall into any such particular category of questions on credit to which, arguably, different considerations apply.

Cross-examination on the history given to Ms Pauncz

As noted above, the appellant saw Ms Pauncz the week before the stabbing incident. On this topic, the appellant first complained about the following cross-examination, which also involved a compound question:

“Q. The reason was that you’d been in therapy, you’d been seeing your psychologist, you’d been on your medication and you were well?
A. No I wasn’t.”

Objection was taken to this question, but after the answer was given. The basis of the objection was that the question contained a false statement, in that the appellant’s evidence was that he had stopped taking Zoloft some time before seeing the psychologist. It was further submitted on the appeal that the compound question was unfair, in that it included the assertion that the appellant was well at the time that he had planned to go to the ball, when that was a live issue that was being litigated before the jury.
Whilst this last complaint is well based, the position at trial was that after objection was taken, there was argument on the point and the Crown asked the direct question whether the appellant was “on any medication at all on 23 September 2012” and a further question, whether the appellant was “well on 23 September 2012”. The appellant answered “no” to both questions.
There was an exchange between these two questions, where it would appear that the Crown Prosecutor was confused as to what answer had been given to the compound question: the answer had been answered in the negative, whereas the Crown Prosecutor appeared to recall the question having been answered in the affirmative. In the course of this exchange, the appellant said that the Crown Prosecutor had been “quite aggressive and it confuses me a bit”, to which the Crown Prosecutor responded, “I see, it’s my fault. I’m sorry”.
On the appeal, the appellant submitted that this was an example of the Crown Prosecutor engaging in sarcastic comment. It is, of course, not possible to know from the transcript of the tone in which the comment was made. However, the appellant’s answer was telling. He said “that’s all right”. It appears, therefore, that the appellant either did not interpret the comment as being sarcastic or, alternatively, had the measure of the Crown Prosecutor. In either case, in circumstances where the Crown Prosecutor broke up the relevant parts of the compound question into its component parts, we do not consider any unfairness arose out of the questioning of which the appellant complained.
The appellant also complained that the suggestion that he was well at that time was contrary to the psychiatric evidence so that there was no basis upon which this question ought properly have been asked. However, the appellant conceded that there was a basis upon which this question could be asked, given that the context of the questioning related to his consultation with the psychologist, Ms Pauncz, who had suggested in her report the appellant was well at the time that she saw him, approximately a week before the stabbing incident subject of the charge.
A similar submission was made about the sarcasm inherent in the Crown Prosecutor’s question “[a]re you serious?” when the appellant said that he could not remember whether in September 2012 he had decided to “vacate the drug scene”. This questioning was also based upon what Ms Pauncz had recorded in her report as the appellant had told her.
This submission also suffers from the difficulty that it is not possible to know whether the tone in which the comment was made was sarcastic, or reflective of surprise at the answer. Further, there was no objection by trial counsel to this or the questions which immediately followed. It was not until some pages further on in the transcript that trial counsel made a more general complaint of unfairness in the questioning having regard to the evidence that the appellant had given in his examination in chief. The trial judge pointed out that the Crown Prosecutor was entitled to test inconsistencies in the evidence.
Argument then proceeded in the absence of the jury. In particular, trial counsel complained that the cross-examination, when it related to previous evidence, had been “very fast”, “unduly aggressive” and that “nearly every answer is tagged with a comment”.
Her Honour rejected these complaints, although she noted that the Crown Prosecutor had heard the concerns raised and would no doubt “accommodate them”. Her Honour was in the best position to make that determination. To the extent that this Court is able to make any assessment of the complaint, the transcript does not bear out the complaint, as her Honour correctly observed, that “nearly every answer was tagged with a comment”. We consider that there is no substance in these submissions.
Another compound question was identified when the Crown Prosecutor asked “[y]ou were well, healthy and had decided to abandon the drug scene?”, to which the appellant responded “[n]o”. The comment made above at [58] likewise applies to the complaint about this question.

Cross-examination suggesting that the appellant had made up his illness

The exchange complained of on this topic was as follows:

“Q. You didn't have any symptoms of voices or paranoia before you went to
Silverwater, did you?
A. Before Silverwater?
Q. Yes.
A. No.
Q. Silverwater made an impression on you, didn't it?
A. Yes.
Q. You hadn't been diagnosed with any psychotic disorders before you went
to Silverwater, had you?
A. Bipolar and depression.
Q. You weren't diagnosed with that.
[TRIAL COUNSEL]: I object, your Honour.
CROWN PROSECUTOR
Q. You were diagnosed with depression, not bipolar, were you?
A. Okay.
...
CROWN PROSECUTOR: I withdraw the question.”

The appellant submitted that the implication in this exchange was that the appellant’s symptoms of mental disturbance were a recent invention motivated by the appellant’s experience of custody. That is a possible interpretation, although the questions do not appear to have been so understood by the appellant. The question of whether the appellant had been diagnosed with bipolar disorder, as opposed to depression, was not pursued further at that point but was picked up again on a later day of hearing and was, we consider, fairly dealt with then. We do not consider that there was any unfairness in these questions.

Cross-examination on auditory hallucinations

The appellant had a history of suffering auditory hallucinations which had become manifest when he was in custody after having been arrested following the stabbing incident. There was an issue, however, about when it was he suffered from auditory hallucinations and this was the subject of cross-examination, including in respect of what he had told Dr Nielssen. The cross-examination related to the appellant’s credit, the basis of the cross-examination being that what he had told Dr Nielssen in June 2013, that he had not suffered any auditory hallucinations from the time of his release on bail in October 2012, was inconsistent with his evidence in examination in chief, where he said that the auditory hallucinations had continued up to trial.
The cross-examination on this point included the following exchange:

“Q. What I’m putting to you is that the evidence that you gave a couple of days ago is inconsistent with what you told Dr Nielssen. Do you understand that?
A. Yes, I do.
Q. You understand what I’m putting to you?
A. Yes, I do.
Q. That the two are different?
A. Yes.
Q. They can’t both be right.
A. They're different.
Q. They can’t both be right, can they?
A. They could, yes. I think, well, I’ve said that the other day as well, that it’s - it's normal to hear voices other than my own and my own voice.
Q. I’m not asking you about that.
A. Well, then I’m confused again, I’m sorry.
Q. I’ll try again. I’ll try again. You were trying to tell the jury a couple of days ago that the voices started when you went to prison on the 23rd and they continue up until the present day, weren’t you?
A. Yes.
Q. What you told Dr Nielssen was they didn’t continue once you had been granted bail? Understand that?
A. Yeah, I think I can offer an explanation for that, as well.
Q. Please. Please.
A. Yes, I do.
Q. Do you understand those two propositions?
A. Yes.
Q. I’m putting to you they can’t both be true, can they?
A. I can't answer that.
Q. You have to, sir.
A. I’m not sure.
Q. What do you mean? They either stopped after you were granted bail or they didn’t. Which one is correct?
A. They continued.
Q. So what you told Dr Nielssen wasn’t correct?
A. Yeah, I just thought about it why - why that was an actual - why that’s possible. I’d been on medication since I got bail.
Q. I’m not interested in possibilities. I want to know why you told Dr Nielssen something that wasn’t correct.
A. It’s possibly because I was - had just been put on medication as soon as I was granted bail.” (emphasis added)

On the appeal, the appellant contended that there was no inconsistency in his telling Dr Nielssen that he was no longer suffering auditory hallucinations and subsequently telling the court that he was, that explanation being that the hallucinations stopped for a short time but subsequently returned. In fact, the appellant explicitly ventilated this possibility in his evidence in cross-examination, in the following exchange, which occurred prior to the exchange quoted in the previous paragraph:

“Q. You see, sir, what I am asking you is if the voices stopped shortly after you were released on bail in early October 2013, then the evidence that you gave yesterday at 497 line 25 that the voices continue to this day can't be true?
A. It’s been two years. If they finished for a short amount of time. I’m sure there’s a reasonable explanation for how that medically happens but I can’t answer that.”

As the appellant accepted, the Crown Prosecutor was entitled to test the evidence on auditory hallucinations, which was at least potentially conflicting. However, he contended that the way the questioning occurred resulted in a degree of complexity which made it difficult for the appellant on an important issue.
It is true that the questioning on this topic was, at times, complex, and that the transcript indicates that the appellant may have found it confusing. However, it also demonstrates that he understood the core proposition being put to him, which was that the two statements were inconsistent. He attempted to answer that proposition. To the extent that his answers required further clarification, that opportunity was potentially available in re-examination. In those circumstances, no unfairness arose by reason of the questioning on auditory hallucinations.

Cross-examination on history of drug consumption given to Dr Allnutt

The appellant had told Dr Allnutt that he had not taken any drugs, including cannabis, on the day of the stabbing incident. His evidence to the jury was to the contrary. The appellant accepted that the Crown Prosecutor was entitled to cross-examine on this inconsistency. Again, the complaint made related to the manner in which the cross-examination was undertaken.
One, if not the most, significant complaint made of the cross-examination is that it misrepresented the appellant’s evidence in chief. In his evidence in chief, the appellant said that he believed he would have smoked cannabis during the course of the day of the incident. He was asked what was his “general daily consumption, at about that time in September 2012, of cannabis”. The appellant said that that that it was “slightly over a gram during the day”, which he broke down to being “around 20, 30 [cones] maybe, throughout the entire day”.
In cross-examination, the appellant was asked:

“Is it correct that when you gave your evidence a couple of days ago … you gave evidence about having smoked 20 or 30 cones on that day?”

The appellant stated that he thought that was “out of context” and that he had said he “smoked 20 or 30 cones a day, like daily not that day”. The appellant, exhibiting an accurate recall of his evidence two days previously, said he did not think he had been asked how much he had “smoked on that day”. The Crown Prosecutor read an additional part of his evidence to the appellant and then posed the question, “[n]ow do you want to change the answer that you gave a minute ago?”.
There was an objection and short argument, after which her Honour pointed out that the appellant’s answer on which he was being cross-examined had related to his general consumption of cannabis. At that point, the Crown Prosecutor withdrew the question. On the appeal, the appellant complained that the question had only been withdrawn “after a struggle”, that is, after objection was taken.
No unfairness has been shown in this part of the cross-examination. The appellant had remembered his evidence accurately. When the Crown Prosecutor challenged the appellant, trial counsel, as it was his function, rightly objected. The trial judge, as was required of her, dealt with the objection and pointed out the Crown Prosecutor the error in his question and the Crown Prosecutor withdrew the question.
The next complaint related to a series of questions which caused the appellant to state that he was becoming “confused”. The questioning again related to the appellant having told Dr Allnutt that he had not taken “illicit drugs” on the day of the incident. He was asked whether he was hiding something from Dr Allnutt. The appellant said he was not and that he “must have been confused” when he told Dr Allnutt something that was not correct. He suggested his confusion might have been due to the Seroquel.
The Crown Prosecutor then asked the following two questions (although not sequentially):

“Q. You see, you told Dr Allnutt that you hadn’t taken any illicit drugs on that day, because that’s the truth, isn’t it?
A. No, it’s not.
…
Q. And you hadn’t smoked illicit drugs?
A. No.”

The Crown Prosecutor next asked, “And you formed some dislike of [the victim]?”, to which the appellant responded:

“Yes, I had smoked illicit drugs. Look, I’m getting confused again. This constant roll of questioning is just not helping answer questions for me, so, I’m just unable to keep up.”

There is no doubt that the two questions quoted above at [84] were at least confusing, and inaccurate, if they were intended to ask whether it was the position that the appellant had not smoked illicit drugs on the day of the incident. However, if they were intended to relate to what the appellant told Dr Allnutt, the questions were accurate, but confusing. The appellant realised the confusion and made it clear that he had smoked illicit drugs on the day of the incident.
The trial judge again appropriately intervened and suggested to the Crown Prosecutor that he commence with a proposition at a time. She also informed the appellant that if he needed to pause before answering he could do so.
There is no doubt that it would have been better had the cross-examination flowed smoothly and without the occasional mistaken question and the compound questions of which complaint is made. However, on each occasion that there was some uncertainty or confusion or error in the questioning, the trial judge dealt with the matter appropriately. To the extent that there were compound questions, that has also been dealt with that above.

The Evidence Act, s 44 issue

During the course of oral argument, the question arose whether some or any of the questioning offended the Evidence Act, s 44. Section 44 provides:

“44   Previous representations of other persons
(1)   Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2)   A cross-examiner may question a witness about the representation and its contents if:
(a)   evidence of the representation has been admitted, or
(b)   the court is satisfied that it will be admitted.”

The Crown submitted that s 44 had not been contravened as the representations about which the appellant was being asked were statements made by him and not by another person. To the extent that that was the nature of the questioning, we agree that s 44 was not contravened. However, there were other complaints made as to questions asked of the appellant to explain why someone else would say or report something. In particular, the appellant was asked questions in respect of the contents of the report of the psychologist and why he could not remember what he told her, but could remember other things. The questions asked were:

“Have you got any explanation for why she would have recorded [that he had decided to vacate the drug scene] if you hadn’t told her?
…
You’ve got no explanation why a professional psychologist would record that if it wasn’t what you said?
…
How is it you can’t remember what you said to Kathi Pauncz on 14 September but you can remember you had a good time at the ball?”

It should be noted that there was an objection to this last question, but on the basis that it did not make sense, in that there was no logical connection between the two propositions raised by the question. The appellant submitted on the appeal that the question was therefore confusing. No objection was taken to any of the questioning on the basis that it offended s 44.
The last question was reformulated in terms:

“You can’t remember what you told your psychologist on 14 September but you can remember whether you enjoyed yourself at the ball, is that what you’re telling the jury?”

There was nothing objectionable or impermissible in the question as reformulated, which involved a testing of the appellant’s credit.
There was a further exchange where the Crown Prosecutor asked the appellant whether he wanted “to answer [the] question”. An objection was taken and the trial judge, in effect, counselled the Crown Prosecutor that there had been an attempt to answer the question. Her Honour asked the Crown Prosecutor whether he wished to raise another question, at which point the Crown said that he would “move on”. In our opinion, this was an appropriate management of the trial and the cross-examination by her Honour. In those circumstances, no unfairness to the appellant arose.

Conclusion on ground 1

We do not consider that any specific element of the cross-examination raised by the appellant was unfair in the sense that warrants appellate intervention. We also do not believe, having had regard to the transcript as a whole and particularly to those aspects of the cross-examination which the appellant identified as being unfair, that its cumulative effect was unfair. The cross-examination continued over three days and, necessarily, traversed a substantial number of complex issues. It is apparent from the transcript that it occurred in a somewhat combative atmosphere as between the appellant’s counsel and the Crown Prosecutor. However, this did not result in questioning that was unfair, improper, or contrary to s 41. To the extent that it appears that the appellant may have been occasionally confused, such confusion was generally cured in subsequent questioning and, on occasion, by appropriate interventions by the trial judge, and no unfairness arose.
Ground 1 of the appeal should be dismissed.

Ground 2: failure to adequately address the jury on the “second branch” of the M’Naghten test

The appellant submitted that the trial judge failed to adequately address the jury on the second branch of the M’Naghten test. He submitted that in particular, her Honour failed to explain that his capacity to understand the wrongfulness of his actions did not turn upon whether he knew his actions were illegal.
As the appellant did not request any further or other direction in respect of the mental illness defence at trial, leave is required to raise this ground of appeal pursuant to the Criminal Appeal Rules, r 4.
It is well established that the requirements of r 4 are not mere technicalities and that the grant of leave is not lightly given: ARS v R [2011] NSWCCA 266 per Bathurst CJ at [148]. The Chief Justice observed that although a failure to seek a further direction at trial may be explicable:

“An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130].”

In Jubraeel v R [2015] NSWCCA 131, at [24], Macfarlan JA stated that in order for leave to be granted under r 4, an appellant was required to satisfy the court that the failure to give a particular direction had caused a miscarriage of justice or at least that there was a possibility that that was the case.
The appellant submitted that as the trial judge was obliged to properly direct the jury on the elements of the defence mental illness and given that there was no conceivable tactical reason for trial counsel to decline to ask for the direction, the grant of leave was justified.
The Crown objected to the grant of leave, contending that the trial judge’s directions to the jury were adequate.

Relevant legal principles

The principles relevant to the defence of mental illness were summarised in R v Pratt [2009] NSWSC 1108 by R A Hulme J, as follows:

“15 The only real issue in this trial is whether the accused has available to her the defence of mental illness. It is a matter for her to establish not beyond reasonable doubt but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659.
16 Section 38(1) of the Mental Health (Forensic Provisions) Act 1990 provides:
If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

17 The Act does not define the term ‘mentally ill’. That is something that must be determined in accordance with the M’Naghten Rules laid down in R v M’Naghten (1843) 8 ER 718:
Every man is to be presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.

18   To establish that the accused was mentally ill so as not to be responsible according to law for her acts of killing Mr and Mrs Keyte she must show that, as a result of a defect of reason from a disease of the mind, she did not appreciate the nature and quality of those physical acts or that she did not know that those acts were wrong.
19   In relation to the concept of a ‘disease of the mind’ which produces such a defect of reason, the law requires that the accused’s state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community.
20   As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong.
21   A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong.”

These principles were applied by this court in Da-Pra v R [2014] NSWCCA 211 at [9]-[10] per Emmett JA; [265] per R A Hulme and Bellew JJ.

Trial judge’s directions to the jury

The trial judge gave written questions to the jury to answer. The questions in respect of the appellant’s defence of mental illness were in the following terms:

“Are you satisfied on the balance of probabilities (i.e that it is more likely than not), that at the time of the stabbing [the appellant] suffered from a disease of the mind which produced a defect in his capacity to reason and, as a result of that defect of reason, he:
a)   did not appreciate the nature or physical quality of the stabbing; or
b)   he did not know it was wrong according to the ordinary standards of reasonable people in our community, (noting that [the appellant’s] reasoning must be able to be done with a moderate degree of sense and composure)?
•   If ‘yes’ to either (a) or (b) then the verdict for Charge 1 must be ‘not guilty on the ground of mental illness’ and you do not go to charge 2.
•   If ‘no’, to (a) and (b) then proceed to question 3.”

In her summing up, her Honour directed the jury by reference to the written questions in the following terms:

“Question two asks you whether you are satisfied on the balance of probabilities, that it is more likely than not that at the time [the appellant] stabbed [the victim], [the appellant] suffered from a disease of the mind which produced a defect in his capacity to reason and as a result of that defect he did not appreciate the nature or physical quality of the stabbing or he did not know it was wrong according to the ordinary standards of reasonable people in our community. Now there you should note that [the appellant’s reasoning must be able to be done with the moderate degree of sense and composure.”

Her Honour returned to the defence of mental illness later in her summing up and directed the jury as follows:

“The next step is question 2 and that’s a step concerned with mental illness. Now this is where the onus shifts and it is the only point in this trial where it shifts and it shifts to [the appellant] at that lesser standard, on the balance of probabilities. So here if you conclude that the Crown has proved beyond reasonable doubt that the stabbing was voluntary then you must consider the question raised on behalf of [the appellant] that he was mentally ill so as not to be criminally responsible according to law. [The appellant] will not be criminally responsible according to law if he satisfies you on the balance of probabilities, that is that it is more likely than not, that at the time of the stabbing he suffered from a disease of mind which produced a defect in his capacity to reason … It must be such a disorder of the capacity to reason in moderate degree that it prevents him from knowing, appreciating or understanding the nature or physical quality of that stabbing or that it prevents him from knowing, appreciating or understanding that it was wrong according to the ordinary standards of reasonable people in our community.
If [the appellant] satisfies you on the balance of probabilities that through a disordered condition of the mind he could not reason about the stabbing with a moderate degree of sense and composure it would be open to you to find that he did not know that what he was doing was wrong.”

These directions accorded with the relevant principles as summarised in Pratt and applied in Da-Pra, the latter case to which her Honour was referred by trial counsel for the appellant.

Appellant’s submissions

The appellant contended that her Honour erred in failing to direct the jury that the “second branch” of the M’Naghten test, that is, that the appellant did not know that his actions were wrong, was not concerned with whether he knew that his actions were legally wrong. In other words, the appellant contended that the directions failed to distinguish between whether he knew his actions were legally wrong and whether he knew his actions were wrong according to the ordinary standards of reasonable people in the community. He submitted that the omission to give this explanation meant that the direction was not tailored to the circumstances of the case.
The appellant contended that in Stapleton v R [1952] HCA 56; 86 CLR 358 the High Court (Dixon CJ, Webb and Kitto JJ) affirmed that the relevant test under the M’Naghten rules was whether the accused knew that his actions wrong according to the ordinary principles of reasonable men, not whether he knew that it was wrong because it was contrary to law. The Court, at 370 and 375, reasoned as follows:

“The critical thing in the traditional test was capacity to distinguish right and wrong that is of course in reference to the act committed. In cases of murder the difference between capacity to understand the wrongness and the legality of the act often might not be of much significance. But in a case like Hadfield's it might be decisive. For Hadfield's mania led him to do the very act for the purpose of causing others to take his life by judicial process.
…
The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.”

The appellant submitted that in this case, the jury could not properly apply the test to the evidence without an appreciation of the distinction between capacity to understand wrongfulness and knowledge of illegality. He contended that this issue was raised in that aspect of the evidence that related to him having passed the knife to another person after the stabbing. On the Crown case, this exhibited a consciousness of guilt. It was also the subject of cross-examination of the appellant and of expert psychiatric evidence.
The appellant had accepted that he knew that it was illegal to carry a knife in public place, but he did not concede that he knew at the relevant time that the stabbing was morally wrong. His response to this questioning in cross-examination that that he could not say that he knew he had “done something terribly wrong with that knife” or that stabbing was the wrong thing to do.
Drs Allnutt, Westmore and Nielssen all accepted that passing a knife to another person could be consistent with the appellant knowing that what he had done was wrong. However, as they each explained, a mentally ill person often committed an act of violence knowing that it was wrong in the legal sense. What was relevant psychiatrically, however, was whether the person understood their act was wrong in the moral sense. Dr Westmore explained:

“… paranoid people usually know that if they harm somebody … you know that you’ll get into trouble if you hurt them but because of your perception of them, your misinterpretation and misunderstanding, you don’t actually care … the capacity to think about it morally is compromised …”

The difficulty in this case was that because of the appellant’s amnesia in respect of the incident it was not possible to know what he was thinking.
Dr Nielssen was of the opinion that the appellant’s emerging mental illness deprived him of the ability to reason with any composure about the wrongful action. Dr Nielssen was also of the opinion that the appellant had acted under a delusional belief that he was under threat from the victim. However, Dr Nielssen agreed that the fact of passing the knife and of telling the security guard that the victim “started it” was consistent with knowledge that he was in some kind of trouble and one possible explanation for this behaviour was it the appellant knew he had done something wrong and wanted to escape from it.
The appellant submitted that given his amnesia, the cross-examination of Dr Nielssen failed to draw the distinction between knowledge of wrongfulness and knowledge of the illegality.
The Crown submitted that Stapleton was not authority that a direction had to be given in the terms for which the appellant now contended, but rather was to be understood in the context of the direction that had been given to the jury in that case. That direction had been in the following terms:

“… [the appellant] must satisfy them upon a balance of probabilities that he suffered from a disease disorder or disturbance of the mind of such a character as to prevent him from knowing the physical nature of the act he did or knowing that he did was wrong, that is against the law.”

Consideration

In our opinion, Stapleton is not authority for the proposition that a jury is to be directed that the test for whether the person knew his actions were wrong was not concerned with whether the person knew that his actions were legally wrong.
As the Crown has explained, the direction that was given in Stapleton suggested that the relevant test was whether the person knew that what had been done was legally wrong. That was a test that had been applied in the English decision R v Windle (1952) 2 QB 826. The High Court in Stapleton, after extensively reviewing the authorities, determined that that decision should not be followed. It was in that context that the Court made the observation at 375 upon which the appellant relied.
The High Court had earlier observed, at 367, that:

“No doubt there are cases in which it would be no advantage to explain what is meant by knowing that the act was wrong to a jury.”

Their Honours considered, however, at 367, that in the case before them, an explanation of what is meant by knowing the act was wrong might have given the jury a better opportunity of understanding the considerations upon which a conclusion in favour of the prisoner depended. Later, at 375, their Honours further observed:

“While as we have said it is not probable that because of this direction alone we would have ordered a new trial, it is desirable to say that if a jury were to lay hold of this point that the accused must be incapable of understanding that he was acting contrary to law as distinguished from appreciating that his act was wrong according to the ordinary standards adopted by reasonable men, the distinction would tell against the appellant.”

In this case, there was no such wrong direction as had been given by the trial judge in Stapleton. Further, as the above passage makes clear, even in Stapleton, that wrong direction would not have been sufficient for the appeal to succeed. There were other grounds in the case that supported the appeal.
In our opinion, the trial judge’s directions were adequate. Leave to raise this ground of appeal should be refused.

Appeal against sentence

The appellant raised two grounds of appeal should leave be granted to appeal on sentence:

1. That the sentencing judge gave insufficient weight to the evidence concerning his mental condition: ground 3 of the notice of appeal;

2. That the sentencing judge gave an insufficient discount to the appellant for his offer to plead guilty to reckless wounding: ground 4 of the notice of appeal.

As these grounds were developed in oral argument, the appellant contended that the trial judge erred in the following respects in sentencing him:

In her Honour’s understanding of the legal effect of the jury verdict which rejected the defence of mental illness;

In considering that the jury verdict meant that her Honour was not herself permitted or required to determine whether the actions were substantially carried out whilst he was substantially impaired by his mental illness;

In her Honour’s determination that general deterrence was relevant in sentencing the appellant;

In her Honour’s assessment of the extent to which the appellant’s mental illness would impact upon the conditions of custody;

In her Honour’s failing to give appropriate effect to the appellant’s offer to plead guilty to the offence of reckless wounding.

Ground 3: insufficient weight given to the appellant’s mental illness

By way of overall submission, the appellant submitted that the trial judge, in sentencing him, reduced his mental illness to something of insignificance.
In the remarks on sentence, the trial judge observed, at 4, that the offences of the nature of which the appellant was convicted “generally speaking are serious” and that in this case the use of a knife to inflict the wound made the offence “particularly serious” and ordinarily called for a strong measure of general deterrence in the sentencing process. Her Honour, at 5, considered that wounding itself was relatively serious. Her Honour further observed that a person’s mental condition was not relevant to the assessment of the objective circumstances of the purpose of applying standard non-parole period provisions: Muldrock v R [2011] HCA 39; 244 CLR 120.
Her Honour observed, at 7, that by finding the appellant guilty of reckless wounding, the jury were satisfied beyond a reasonable doubt that he realised he might possibly cause actual bodily harm to the victim and yet went ahead and stabbed him. Her Honour commented that evidence of mental illness did not give rise to a reasonable doubt in that regard. Her Honour also observed, at 8, that the paranoia from which the appellant was suffering “was not to the extent that it was a psychosis that negated his capacity to know the wrongfulness of his actions”. No complaint is made in respect of these remarks.
Her Honour, however, made four observations which are challenged by the appellant as involving error.
First, her Honour considered that, as the jury were not satisfied of the defence of mental illness, it could be concluded that they rejected the reasonable possibility that the appellant was delusional, insofar as he had an inability to reason right from wrong.
Her Honour stated that this was because an aspect of the defence of mental illness was that the appellant did not know it was wrong according to the ordinary standards of reasonable people in the community. The appellant challenges the correctness of this observation.
Secondly, her Honour stated that the jury verdict rejected the conclusion that the appellant was impaired in appreciating the nature of physical quality of the stabbing or in knowing that it was wrong according to ordinary standards of reasonable people in the community.
Thirdly, her Honour stated that the jury verdict rejected the reasonable possibility that the appellant was psychotic in a way that prevented him from knowing the nature or physical quality of the stabbing or from knowing that it was wrong according to the ordinary standards of reasonable people in our community.
Fourthly, her Honour stated that the expert evidence regarding mental health, when considered in the context of the jury verdict, gave rise to the conclusion that the appellant was probably paranoid at the time of the offence but not to an extent as to prevent him appreciating the nature of the offence and the fact that it was wrong.
We agree with the appellant that the first and second of these comments revealed error. The fact that the jury did not accept the defence of mental illness meant that they were not satisfied on the balance of probabilities that the appellant’s thinking was compromised to the point where he did not know the difference between right and wrong.

A.   No I didn’t.
Q.   That’s right, and that’s what Hugo said, “Not usually the sort of person that would attend things like that”?
A.   Correct.
Q.   But on this occasion you were someone who wanted to attend things like that weren’t you?
A.   That’s questionable.
Q.   It’s not questionable sir, you dressed up, you planned it and you went, correct or not?
A.   Yes.
Q.   The reason was that you’d been in therapy, you’d been seeing your psychologist, you’d been on your medication and you were well?
A.   No I wasn’t.

“It’s not questionable sir” is another comment or expression of opinion. The proposition that the Appellant was on medication was contrary to the Appellant’s evidence and there would seem to have been no basis in any other evidence or instructions the Crown could have had to put the proposition. The four psychiatrists who gave evidence at the trial, three of whom had given evidence before the questions were asked, agreed that the Appellant had an underlying disease of the mind at the time.

AB1424
Q.   Were you on any medication at all--
A.   No.
Q.   Can I ask the question first?
A.   Yes, you can.
Q.   Were you on any medication at all on 23 September 2013?
A.   No.
Q.   When you said a minute ago that you were –
A.   Yes.
Q.   -- what did you mean by that?
A.   Well, you were quite aggressive and it confuses me a bit when—
Q.   I see, it’s my fault. I’m sorry.
A.   That’s all right.
Q.   You were well on 23 September 2012, weren’t you?
A.   No.

The witness had not, a “minute ago” or shortly before said he was on medication.

AB1424
Q.   You went to see Kathi Pauncz on 14 September 2012, a week before, didn’t you?
A.   Yes.
Q.   You had a consultation with her?
A.   Yes.
Q.   She took some notes about how you presented?
A.   Yes.
Q.   You know what she said, don’t you?
A.   Yes, I do.
Q.   You know that she said that you were enjoying your studies, correct?
A.   Yes.
Q.   That was true, wasn’t it?
A.   Yes.
Q.   She said that you feel like you’ve been maturing and that was true, wasn’t it?
A.   Yes.
Q.   She said you’re much more confident now and that was true, wasn’t it?
A.   Yes.
Q.   She said that given this year has made a difference, correct?
A.   That’s what she said.
Q.   She said and that’s what happened. That’s the truth?
A.   That’s what she said, yes.
Q.   That is what she said.
A.   Yes.
Q.   I’m asking you whether that’s true?
A.   I’m not sure what I said back then.
Q.   I’m suggesting to you that that’s what she said that you said?
A.   Yes.
Q.   I’m asking you whether it is true that given this year has made a big difference to you?
A.   No, that’s not true. That’s not – that’s not what I was actually feeling.
Q.   Do you have any explanation why she would record that?
A.   Yes, when I used to go to Kathi’s, I wasn’t getting gratification in my life from anywhere else, so I’d go there and present a false life that I was living so that she would feel – I’d get support from somebody or someone would—
Q.   You lied to your psychiatrist, did you, your psychologist?
A.   I didn’t lie, I was—
WATERSTREET: I object.

The questioning involved assertions as to what had been recorded by Ms Pauncz and which was not in fact in evidence – c.f. Evidence Act1995 (NSW), s 44.

AB1426
Q.   What about this: she says that you said you’ve seen the impact of drugs on others and you don’t want involvement in that scene?
A.   Yes.
Q.   Did you say that to her?
A.   I can’t say.
Q.   She’s recorded it. Do you accept that you must have?
A.   I could have.
Q.   It was true, wasn’t it?
A.   Possibly.
Q.   What do you mean possibly? Was it or wasn’t it?
A.   It was possibly true.
Q.   You mean you can’t remember whether in September of 2012 you’d decided to vacate the drug scene?
A.   No I can’t.
Q.   Are you serious?
A.   Yes.

“She” in the first question was Ms Pauncz, the Appellant’s psychologist who was not called and from whom no report was in evidence. The questioning again involved assertions as to what had been recorded by Ms Pauncz and which was not in fact in evidence.

AB1427
Q.   You were well, healthy and had decided to abandon the drug scene?
A   No.
Q.   You’ve got no explanation why a professional psychologist would record that if it wasn’t what you said?
A.   I – I used to say – but I think this is quite a common thing that happens when people see psychologists is they say something along the lines of my friend is a heavy drug user or my friend is not feeling well and then they say they’re feeling well as a – a kind of way of disguising the – the embarrassment of not being well.
Q.   You went to the ball. You dressed up and you went with your friends?
A.   Yes.
Q.   You had a good time?
A.   No.
Q.   You didn’t have a good time?
A.   No.
Q.    You can remember that, can you?
A.   Well, I’m here.
Q.   Sorry?
A.   I am here so—
Q.   What does that mean?
A.   It didn’t go so well.
Q.   How is it you can’t remember what you said to Kathi Pauncz on 14 September but you can remember you had a good time at the ball?
WATERSTREET: I object to that. …

The second question again involves an assertion of what Ms Pauncz had written and which was not in evidence. The last question misquotes evidence the Appellant had just given.

AB1429
Q.   You had been to the Brighton with your mates many times?
A.   Yes.
Q.   It was one of your favourite drinking spots?
A.   Yes.
Q.   You felt comfortable going there this night?
A.   Yes
Q.   Because your mates were probably going to be there?
A.   Yeah, Fruits was there.
Q.   This wasn’t like the mall was it?
A.   No.
Q.   You didn’t feel uncomfortable in the pub like you say you felt uncomfortable in the mall?
A.   No, they were familiar faces there for me.
Q.   When you went to the Brighton you felt comfortable?
A.   I can’t say.
Q.   Well you must of sir all your friends were there, it wasn’t the mall, and—
A.   No, I can’t remember.
Q.   Page 490 at line 25 you were asked this question, “Do you know the Brighton Up Bar, or the Brighton bar?” Answer, “Yeah, the Brighton bar, I knew a lot of people there so that – that was a place that I was comfortable to go to”?
A.   Yes.
Q.   Do you want to change the answer you gave a minute ago?
A.   Can you re-put that question again?
Q.   I asked you a minute ago whether you felt comfortable going to the Brighton Bar and you said “No”?
A.   I wasn’t sure if you were putting it on that night or previous nights.
Q.   I’m putting to you that when you went there that night you felt comfortable?
A.   I can’t say. I don’t remember—
Q.   You’ve said it already—
WATERSTREET: Why did you ask it again?
CROWN PROSECUTOR
Q   You said it already sir, do you agree with that?

The statement in the third last question “… you said ‘no’” misrepresents the evidence as does the statement “you’ve said it already”. Of course’ the concluding words quoted take a deal of the sting out of the last point and one must accept that Mr Waterstreet’s interruption may have been the cause of those words being uttered twice.

AB1445
Q.   Do you agree that that is what you told Dr Nielssen during the consultation on 3 June 2013?
A.   Yes.
Q.   It’s the truth, isn’t it?
A.   I’m not sure. I can’t remember the visit, I just said that at the beginning.
Q.   I hadn’t finished my question, would you like me to finish?
A.   Yes.
Q.   It’s the truth, isn’t it, that they did not continue to this very day?
A.   No that’s not the truth.

Though perhaps not unusual and, if it stood alone, not meriting comment, the question “would you like me to finish” was sarcasm calculated to dominate or oppress the witness.

AB1462
Q.   You told him that you hadn’t taken any illicit drugs before the ball. Now do you agree that that’s what you told him or don’t you?
A.   Yes.
Q.   You do agree?
A.   Yes.
Q.   No doubt about it?
A.   Yes.
Q.   Is it correct that when you gave your evidence a couple of days ago, 484, you gave evidence about having smoked 20 or 30 cones on that day?
A.   I think that’s out of context. I think I said I smoked 20 or 30 cones a day like daily not that day. I don’t think that was ever put to me how many I had smoked on that day.
Q.   You were asked these questions, I’ll just pick you up on that, you were asked these questions, 485.
WATERSTREET: 484 I think.
CROWN PROSECUTOR: 485 question:
Q.   “How long have you been participating in the smoking of cones of cannabis?
A.   Since I was about 12, 13.
Q.   I take it this was not something your parents approved of?
A.   No.
Q.   But you did it anyway?
A.   Yes.
Q.   What effect did it have on you and why did—
A.   On that day or?
Q.   No, generally?
A.   It must calmed me down from, yeah.
Q.   Before this day you had been seeing various doctors for various ailments which I will go through later?
A.   Yes.
Q.   But on that day did you partake of cones surreptitiously from your father?
A.   Can you?
Q.   Yes, away from your father?
A.   Yes, I did.”

A.   Yes.
Q.   Now do you want to change the answer that you gave a minute ago?
WATERSTREET: What answer?
CROWN PROSECUTOR
Q.   You said—
A.   I thought you asked me if I had 20 or 30 cones before.
Q.   Before what?
A.   Before the ball on the day.
WATERSTREET: I object to “Do you want to change your answer?” What answer is he referring to, your Honour?
HER HONOUR: Well the witness has sought verification [sic] and I will allow Mr Crown to deal with it because I think it’s clear that the witness is trying to get clarification of that. Thank you, Mr Crown.
CROWN PROSECUTOR
Q.   You gave evidence didn’t you, as I’ve just read to you, that before the ball you smoked 20 or 30 cones.
WATERSTREET: I object.

There followed discussion on the objection which concluded with her Honour remarking that she thought that at page 484 general consumption (as distinct from consumption on the day of the ball) was being talked about and the Crown Prosecutor withdrew his question. The questioning, calculated to pressure the witness, had proceeded on an erroneous premise.

AB1465
Q.   And you had been to see the psychologist a week before, hadn’t you?
A.   Yes.
Q.   And you were healthy and well?
A.   No.
Q.   And you were looking forward to the ball?
A.   No.
Q.   And you went to the Brighton Hotel because your friends were there?
A.   Yes.
Q.   The place you felt comfortable.
A.   Yes.
Q.   And you hadn’t had much to drink?
A.   No.
Q.   And you hadn’t smoked illicit drugs?
A.   No.
Q.   And you formed some dislike of Mr Sidhu?
A.   Yes, I had smoked illicit drugs. Look, I’m getting confused again. This constant roll of questioning is just not helping answer questions for me, so, I’m just unable to keep up.
WATERSTREET: It is repetitious, your Honour.

Much of the passage was repetitious of cross examination that had occurred three times before – on pages AB 1429, 1435, and 1436. What followed does not indicate that the repetition was with a view to challenging the evidence or indeed for any apparent legitimate purpose, although her Honour said that she “sense[d] it’s a wrap up”.

AB1466
Q.   You didn’t have any symptoms of voices or paranoia before you went to Silverwater, did you?
A.   Before Silverwater?
Q.   Yes.
A.   No.
Q.   Silverwater [Prison] made an impression on you, didn’t it?
A.   Yes.
Q.   You hadn’t been diagnosed with any psychotic disorders before you went to Silverwater, had you?
A.   Bipolar and depression.
Q.   You weren’t diagnosed with that.
WATERSTREET: I object, your Honour.
CROWN PROSECUTOR
Q.   You were diagnosed with depression, not bipolar, were you?
A.   Okay.
…
CROWN PROSECUTOR: I withdraw the question.

Despite the answer, the proposition, the subject of the first two questions, was surprising given that the prosecutor had obtained evidence from Dr Allnutt (AB 1214) that the Appellant’s thinking was becoming more paranoid before the offence. The second proposition was contrary to the evidence of the Appellant and to the common view of Dr Allnut (called by the Crown) and Dr Westmore (called by the Appellant) so it is difficult to see any basis for it. Although the words “You weren’t diagnosed with that” may have been part of a question interrupted by Mr Waterstreet’s objection, they certainly read as an assertion similar in form to those made in earlier cross-examination I have quoted, “There’s no doubt about it sir” (AB 1419), “It’s not questionable sir” (AB 1422), and “She’s recorded it” (AB 1426). Furthermore, during the Crown Prosecutor’s examination-in-chief of Dr Nielssen, the following exchange had occurred:

Q. You were aware that at some stage during the course of his treatment prior to his incident, that he was tentatively diagnosed with bipolar at the Black Dog Institute.
A. Yes.

The Appellant’s involvement with the Black Dog Institute was prior to the commission of the offence and prior to him being in Silverwater Gaol. Given the evidence that the Prosecutor had adduced, it is impossible to see any justification for his challenge to the Appellant’s evidence just quoted. Certainly the withdrawal of the question removes some, but in my view not all, of the sting in what had earlier been said, as does the form of a further question substantially later:

AB1516
Q. This is the position isn’t it – you can disagree with this if you wish, that you were diagnosed with depression prior to September 2012 but not with bipolar disorder?
A. I believed I was diagnosed with bipolar as well.

The next example to which I would refer was at AB 1517.

AB1517
Q.   What I’m suggesting to you is that you had planned, before you stabbed Mr Sidhu, to make a claim that the victim started it?
A.   I don’t know.
Q.   I’m suggesting to you – and you can disagree with this, that the reason why you went up to Mr Sidhu and I suggest said something to him in his left ear – very close – do you understand?
A.   Yes.
Q.   Was because you wanted him to react, didn’t you?
A.   I disagree. I also can’t say.

There was evidence that shortly before the Appellant stabbed the victim he went close to the victim and whispered something in his ear. There was also evidence that shortly after the stabbing the Appellant had said to a security guard who was trying to remove the Appellant from the premises, “You need to get that other guy away from me or I’m going to stab him again.” While it is of course possible that the Appellant had the intention reflected in the first question just quoted, I am unable to see any basis for the positive suggestion in that question.

AB1519-1520
Q.   You knew that it was illegal in 2012 to carry a hunting knife into a hotel?
A.   Yes I just assumed that it was illegal full stop, yeah.
Q.   And you knew when you went into the hotel that you had a hunting knife in your pocket?
A.   No, as I said I can’t remember going into the hotel, so I can’t answer that question with my memory.
…
Q.   I want to suggest to you that the reason that you took the knife into the pub was because you intended to stab someone with it?
A.   No.
Q.   When you got into the pub you lined up Mr Sidhu and you stabbed him?
A.   I can’t say.

There was no evidence, except for his own statement that he had a habit of picking things up and had picked up the knife and put it in his pocket at the ball he had attended earlier in the evening, as to when, or in what circumstances, or for what purpose the Appellant acquired possession of the knife. There was uncontradicted evidence from the victim that he had never had anything to do with the Appellant previously and a deal of evidence to the effect that before the stabbing the Appellant had looked “a bit crazy in the face, in the eyes”, and had a “crazy weird look about him”, looked “quite scary” and “a bit kooky”. There was no basis for the positive suggestion that the Appellant had, prior to going into the hotel, formed the intention to stab anyone. The fact that, while in the hotel, he did stab the victim was quite insufficient to justify the question about intent.

AB1540
Q.   Sir, when I was cross-examining you earlier today I made a mistake which I want to correct, do you understand?
A.   Yes.
Q.   I put to you that before you entered the hotel you had the intention to stab Mr Sidhu, do you remember that?
A.   Yes I do.
Q.   I was wrong about that. What I want to put to you is that when you were in the pub sitting at the table, staring at Mr Sidhu, at that point you formed the intention to stab him?
A.   I can’t say.

There was then an objection and her Honour asked:

Q. Do you understand sir that what was being put to you is that you had not formed any particular intention to stab anyone before you went into the pub but your intention to stab someone, namely Mr Sidhu, arose whilst you were in the pub?

A. That being the question.

Q. That was what was put to you, do you agree with that or not?

A. Yes I do.

There was then further discussion following which the Crown said to the Appellant that he withdrew what he had said “to you earlier in the day”. There was more discussion and the cross-examination resumed.

Q.   I’m putting to you that when you were in the pub, shown on the CCTV footage sitting at the table staring at Mr Sidhu – do you understand?
A.   Yes.
Q.   Do you understand where we are at?
A.   Yes.
Q.   I’m putting to you that at that point you formed the intention to stab Mr Sidhu, do you understand what I’m putting to you?
A.   Yes, I do.
Q.   I’m asking you whether you agree with that, or don’t agree with that?
A.   I can’t say.
Q.   A second matter was a question that I asked you on Friday which was this: are you okay – you’re drifting off there, are you listening to me?
A.   Yeah, yeah.
Q.   The question was “You didn’t have any symptoms of voices or paranoia before you went to Silverwater, did you?” And you answered, “Before Silverwater?” And I said “Yes?” And you said “No.”, all right?
A.   Correct.
Q.   In fact you had already told Mr Waterstreet that when you went to the mall you felt that people were watching you?
A.   Yes.
Q.    And Mr Waterstreet said “How long did that feeling of paranoia occur?” And you said “It kind of come over me over the leaving years from about year 12” do you remember that?
A.   Yeah.
Q.   My question to you is, you didn’t have any symptoms of voices or paranoia, was wrong, and I withdraw that – do you understand?
A.   Yes.
Q.   I’ll ask you a different question: I’m suggesting to you that you didn’t’ have any symptoms of voices before you went to Silverwater – do you understand that question?
A.   Yes, I do.
Q.   Can you tell me whether you agree or disagree with that?
A.   I agree.

These questions were calculated to at least minimise the impact of earlier ones that should not have been asked. They of course confirm that the earlier questions were not justified.
Relevant also to the conclusion at which I have arrived is the situation of the Appellant. He had a mental illness and was on medication. At AB1345 he said that his head was not as useful in the morning as later on in the day and that he was having trouble, a proposition her Honour seemed to accept when she postponed further cross-examination and said that she would give priority to his evidence being completed at a time of day amenable to his comfort and comprehension. At AB1450 he said he was “getting confused again. This is too quick and too aggressive and it’s confusing me”. Her Honour asked the Appellant if he needed a moment and then again adjourned the cross-examination. In addition to the passages I have quoted, he said on a number of other occasions during the cross-examination that he was confused – AB1434, 1442, 1446, and 1450.
Of course, such assertions of confusion are not necessarily true but at least as far as the transcript goes, they appear to be genuine and he was not challenged on the statements. It is however fair to record that after the adjournment of the cross-examination to which reference has just been made her Honour observed that “since Mr Waterstreet raised it I think that there’s been a tempering of demeanour in cross examination and I’ve not been seeing an aggression that is at all uncommon or out of place so I am troubled that the accused at this point of time is perceiving those matters. I don’t say there’s anything disingenuine [sic] about it, but I am troubled that that would be the perception”.

Her Honour went on to observe that it was important for the Appellant to comprehend, raised the possibility that mental illness or shyness or nerves could be operating, reiterated that the Crown’s questioning was not out of place and remarked that audible mumbles at the Bar Table, which I infer to have been from defence counsel, were calculated to be distracting.
The reference to Mr Waterstreet raising “it” was to an occasion early in the cross-examination when Mr Waterstreet had complained at the speed at which the Crown Prosecutor was reading material. Her Honour had then remarked that she had not discerned a pace that is uncommon in court proceedings.
In the main, the questions asked in cross-examination were commendably short and my impression from the printed page is that they followed quickly on one another. However, weight must obviously be given to her Honour’s remarks.
It must be accepted that many of the passages I have criticised were not the subject of objection, despite defence counsel objecting frequently, sometimes with justification and sometimes not. This failure is undoubtedly a reason why the Appellant should not be allowed to raise the issue here. However, the Appellant was entitled to a fair trial. Counsel appearing for the Crown was under an obligation when cross-examining to do so in a way that did not infringe the Appellant’s entitlement.
As Heydon J endorsed in Libke v R [2007] 230 CLR 559 at [122]:

A prosecutor must “conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative – especially in a prosecutor – to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross–examination”.

The cross-examination was combative and aggressive. While such an approach may often not be inappropriate, it was clearly so in this case. The Prosecutor did put, indeed I think make, a number of controversial and prejudicial assertions based upon inaccurate or inadequate factual foundations and although some were subsequently withdrawn - some, days later - the mere putting of them was calculated to suggest, at least inferentially, that there was a basis for them. The Legal Profession Uniform Conduct (Barristers) Rules 2015 Rule 61 quoted by Beazley P and Davies J is not there for no reason.
As I indicated at the commencement of these reasons, I do not suggest that all departures from proper questioning make a trial unfair. I am not unconscious of the views of other members of this Court. Nevertheless, my overall impression of the cross-examination of the Appellant is that it was unfair and the accumulation of errors by the cross-examiner and their impact on the Appellant liable to have had an impact on the jury’s view of him.
Accordingly, I would uphold ground 1.

**********

Decision last updated: 16 December 2015

Medium Neutral Citation:	Skelton v R [2015] NSWCCA 320
Hearing dates:	9 November 2015
Decision date:	16 December 2015
Before:	Beazley P and Davies J at [1]; R S Hulme AJ at [161]
Decision:	(1) Appeal against conviction dismissed; (2) Grant leave to appeal against sentence; (3) Appeal against sentence allowed; (4) Quash the sentence imposed by the trial judge and in lieu thereof sentence the appellant as follows: The appellant is sentenced to imprisonment for a term of 2 years and 6 months commencing on 21 November 2014, with a non-parole period of 13 months. (5) Direct that the appellant is to be released to parole on 21 December 2015.
Catchwords:	CRIMINAL LAW – appeal – appellant stabbed stranger – history of mental illness and subsequent diagnosis of schizophrenia – appellant found guilty of reckless wounding, contrary to the Crimes Act 1900, s 35(4) – found not guilty of wounding with intent to cause grievous bodily harm, contrary to the Crimes Act, s 33(1)(a) CRIMINAL LAW – directions to jury – whether trial judge erred in giving directions on defence of mental illness – whether direction in relation to whether appellant had capacity to know what he was doing was wrong required direction that such capacity did not turn on whether he knew his actions were illegal CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of appellant’s mental illness – whether trial judge bound by jury verdict to consider impairment in capacity to know actions were wrong was not substantial CRIMINAL LAW – sentencing – whether trial judge failed to take sufficient account of applicant’s offer to plead guilty to charge of which he was ultimately convicted EVIDENCE – cross-examination – whether manner of cross-examination of appellant gave rise to unfairness – Evidence Act 1995, ss 41, 44
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015
Cases Cited:	ARS v R [2011] NSWCCA 266 Da-Pra v R [2014] NSWCCA 211 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 GWM v R [2012] NSWCCA 240 Hassan v R [2010] VSC 352 Jubraeel v R [2015] NSWCCA 131 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Libke v The Queen [2007] HCA 30; 230 CLR 559 Morton v R [2014] NSWCCA 8 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Anderson [2012] NSWCCA 175 R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357 R v Israil [2002] NSWCCA 255 R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported) R v Oinonen [1999] NSWCCA 310 R v Pratt [2009] NSWSC 1108 R v Windle (1952) 2 QB 826 R v Z [2006] NSWCCA 342 Stapleton v R [1952] HCA 56; 86 CLR 358 ZZ v R [2013] NSWCCA
Category:	Principal judgment
Parties:	Cameron Skelton (Appellant) Regina (Respondent)
Representation:	Counsel: P Boulten SC; S Buchen; G Huxley (Appellant) M Cinque SC (Respondent) Solicitors: Murphy’s Lawyers Inc (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/297694
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: 31 March 2015 Before: Culver DCJ File Number(s): 2012/297654