Walsh, Lewis Alex v The Queen - [1993] TASSC 91

68/1993

PARTIES:  WALSH, Lewis Alex
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO:  CCA47/1992
DELIVERED:  19 August 1993
HEARING DATES:  30 October, 2 November 1992, 2, 3, 8 March 1993
JUDGMENT OF:  Cox, Crawford, Zeeman JJ

CATCHWORDS:

Criminal Law – Appeal – Unsafe and unsatisfactory verdict – Verdict of guilty of murder quashed and verdict of not guilty on ground of insanity substituted.

Chidiac v R[1991] HCA 4; (1991) 171 CLR 432, Chamberlain v R (No 2)[1984] HCA 7; (1984) 153 CLR 521 and Morris v R[1987] HCA 50; (1987) 163 CLR 454, applied.
R v Matheson(1958) 42 Cr App R 145, R v Shearsmith(1967) Qd R 576, Taylor v R(1978) 22 ALR 599 and Hall (1988) 36 A Crim R 368, considered.

Criminal Law – Criminal liability and capacity – Insanity – Presumption of sanity – Self-defence – Insane beliefs to be disregarded once jury has rejected insanity.

Criminal Law – Criminal liability and capacity – Self-defence – Insane beliefs forming basis of accused's belief as to circumstances – Insanity rejected by jury – Insane beliefs to be disregarded.

Criminal Law – Murder – Self-defence – Insane beliefs forming basis of accused's belief as to circumstances – Insanity rejected by jury – Insane beliefs to be disregarded.

Criminal Code, ss15, 16(1), (2), (3), 46.
Hawkins v R (No 2) Serial No 41/1993, applied.

REPRESENTATION:

Counsel:
             Appellant:  A G Melick & R Browne
             Respondent:  M A Stoddart & J N Perks
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: A68/1993
Number of Paragraphs: 45

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
CRAWFORD J
ZEEMAN J
19 August 1993

ORDERS OF THE COURT:

Appeal allowed.

Verdict of guilty of murder quashed and the following verdict substituted:

"The accused (appellant) committed the act charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law."

Order that the appellant be dealt with as a mentally disordered person who has become subject to the criminal process.

Direct the Registrar to notify the Attorney-General of the Court's orders.

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
19 August 1993

I agree with the reasons for judgment prepared by Crawford J and with the orders he proposes.

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD J
19 August 1993

At about midnight at the end of 28 March 1991 the appellant killed Peter Graeme Bail by deliberately discharging a shotgun at his chest from fairly close range, some evidence suggesting about three metres. He was convicted of murder and has appealed.
At the time of the homicide the appellant was aged 58 years. He lived on his own in the country near Smithton. What he did in company with the deceased on 28 March up until the shooting was to some extent corroborated by a number of witnesses. To the extent it was not corroborated there was no reason why the jury should not have accepted the appellant's version of the events until shortly before the shooting. On this basis the evidence should have established to the satisfaction of the jury the following facts.
The appellant met the deceased about three weeks earlier. There was no evidence of any bad feeling between them at any time. The deceased visited the appellant two or three times. On the morning of 28 March he telephoned the appellant and then called at his home and they spent the rest of the day and evening together in apparent harmony until the fatal incident. The appellant treated the deceased to some baked beans. They then gathered mushrooms which they cooked and ate. They went to a rubbish dump with garbage. Then the appellant announced that he would like to take some potatoes to a friend at Smithton. He dug up the potatoes and they travelled to Smithton in the deceased's Toyota Land Cruiser. In Smithton the appellant withdrew money from a bank and paid for beer they both consumed at two Smithton clubs. At the appellant's suggestion they then drove to the Smithton home of Mr Charles Heald to deliver potatoes and other vegetables to him. They spent the night, until about 11.30 pm, at the Heald home. Other people also arrived. The appellant and the deceased consumed more alcohol. A party developed. There were no arguments or fights. Everyone was getting on well with each of the others.
One of those at the party was Mr Herbert Forward. He was obviously affected by the alcohol he had consumed. He decided to leave for his Smithton home by taxi but the appellant offered him a lift in the deceased's Land Cruiser. The three men left the party together with the deceased driving. The appellant and the deceased had consumed a fair amount of alcohol, mainly beer, but there was no evidence to suggest that they were drunk. According to Mr Forward the appellant and the deceased made a plan, in the course of the journey, to go shooting wallabies after they dropped him off at his home. Within the Land Cruiser was a single barrel shotgun possessed by the appellant. He later told the police it was loaded with the safety catch on. Also in the vehicle were two dogs owned by the deceased. The appellant knew that some chickens owned by Mr Forward had been killed by dogs in the preceding months. In his unsworn statement to the court the appellant said that the deceased had described one of his dogs as being "trained to kill feral cats but in fact killed everything". As they approached Mr Forward's home the appellant said to the deceased words to the effect of "don't let your dogs out, this man has pets too." There was no argument about the matter. There was no evidence at all of any bad feeling between those in the vehicle.
When they arrived at Mr Forward's home he invited both men in for a glass of beer. He got out of the vehicle and proceeded inside his house. It was dark and he used his cigarette lighter to illuminate his way. Inside he turned on a light and opened a bottle of beer. He then heard a gun-shot outside. He walked to the door and met the appellant. The appellant called out "Bert, I've shot a man" and words to the effect of "come and look, come outside, come and see what's happened". Mr Forward went out and found the deceased lying dead on the ground.
The only direct evidence of what had taken place outside came from the appellant in his unsworn statement and from what he told the police and other witnesses. He asked Mr Forward to telephone the police. Mr Forward asked him why he had done it and the response was that he did not know. Police officers arrived at the house about 15 minutes later and he told him that "he was going to get me so I shot him. I went to the vehicle and got the gun and I shot him and I can't say that I'm sorry". 1st Class Constable Noble had observed that the shotgun was still loaded and asked about this. The appellant said: "As he went down he groaned and I thought that he was going to get up again, so I reloaded the gun".
Very quickly on the scene was Mr Forward's wife. Unlike her husband she was sober. She remained in the presence of the appellant for about three hours until he was taken to the police station. She tried to ascertain from him why he shot the deceased. His explanation was confused and his conversation did not appear to be in any logical order. He talked of going from one end of the house to the other, that "if I hadn't got him he'd have got us", that "I told him three times" and that he did not mean to do it but it was self defence. She described him as being "very stressed and as if he wasn't quite with it". He said how he had been injured in the war and he pointed to his abdomen and talked about guns. She considered there was an element of fear about him. He was talking a lot about the war but she was unable to give detail of what he said, seemingly because he was not making much sense. After about two hours they had all calmed down somewhat and she made a further effort to ascertain from him why he had killed the deceased. He said "I told him three times" but she could not find out from him what he meant. He kept talking about going from one end of the house to the other end and he said to the effect "we wouldn't have had any hope against a strong young man like that when he was coming at us". At one stage his attitude appeared to change and he became very remorseful and concerned about his daughter and sister. In cross-examination she said that the deceased was talking in general terms about war and about being wounded in war and she gained the impression that he suffered a very bad abdominal injury in the war. He was talking about guns a lot and shooting, about battle, and appeared very stressed about activities of war. Mrs Forward described him as being on a different plane. She referred to his anxiety, constantly up and down and moving around, in a generally agitated state. She said that there was an element of fear about the appellant which came from his general attitude rather than from his words. At one stage he said "I never meant to shoot him, I just meant to stop him" and he said "I thought I shot him in the legs". In re-examination she said that her husband had been harrowing the appellant by accusing him and telling him that he would stay in gaol for a number of years and the appellant was adamant that he had acted in self defence, using that expression quite a few times, and said "he was comin' at me".
After about three hours the appellant was driven away from the house by police. He had told them that on arrival at Mr Forward's house he had told the deceased to keep his dogs under control and that he shot the deceased because he didn't want to have his head knocked off. He told the deceased three times in plain English to stop but he would not stop and so he shot him. Senior Constable Bonde related the following conversation with the appellant at the police station:
"I said to the Accused: 'Tom what was the actual reason you shot this Peter bloke?' The accused said: 'He wouldn't keep those fuckin' - sorry he wouldn't keep those fuckin' dogs under control mate. I told him and he wouldn't listen. He just came towards me.' I said: 'What was your intention when you shot him?' He said: 'I wasn't panicked' - he said: 'To stop him from knocking my head off. I wasn't panicking, I thought I'll kill you if you don't stop.' He said: 'He kept coming. And I let it go and by gees it stopped him, my oath.'"
Senior Constable Bonde asked whether the deceased had had a go at him in the past and the appellant replied: "No mate, he had that look in his eyes and kept coming ... and wouldn't stop".
A formal interview was conducted by the police with the appellant. it was recorded on a typewriter. The events of the homicide were recorded:
"Q45Where did you go then?
ATurned hard left into Bert's place. Now just before you get to Bert's place there's a hollow, a bit of a dip in the road. I said to Peter something to the effect keep your dogs under control. He didn't take his eye's off the road, and I said this man's got some pets. He said, you got any cats. Bert said he wouldn't wear them. He doesn't like cats that means. We pulled up and the first thing we did was get out and the one he was nursing went out first and as soon as that did the other followed suit naturally.
Q46Just to clarify that, the two dogs you're talking about are the ones that he had with him when he first turned up at your place. is that correct?
AYeah, that's right, the same dogs.
Q47Was he nursing one of them while he was driving?
AYeah, that brown bloody thing. The youngest one.
Q48What happened after Peter and the dogs got out of the Landcruiser?
AOld Bert got tangled up in the gear lever, he had his feet either side of that. Well he got free of that, anyway, Peter went to the back of the landcruiser and the dogs started chasing something. I know it wasn't a bloody rabbit. One went one way and one went the other. I had this sawn off shotgun. I was sitting in the landcruiser.
Q49What happened then?
AThe sawn off shotgun was loaded, on safety. When old Bert jumped out I said now keep those bloody dogs under control. All I could hear is woof woof woof and I thought Jesus he's not taking no notice of me so I bailed out. I got out and it wasn't dark, it was moonlight. I walked towards the two bullock wheels and axles on display.
Q50Did you still have the shotgun with you?
AYeah, still on safety too.
Q51What then?
AAnyhow, I never quite got to these wheels and I swung round and could see that Peter wasn't taking no notice of me. I kept telling him to keep the dogs under control. Old Bert was inside by this and all the house was in darkness. I could hear him mumbling and grumbling, I don't know whether he couldn't find the light switch. Anyhow, this Peter was coming towards and I said stop three time loud and all in english. I don't know but he didn't look to bloody happy and I didn't know what he was going to do.
Q52What happened then?
AI thought now he's a lot younger than me and I thought he could upend me and give me a thump in the ear and knock me bloody head off. Old Bert was nowhere to be seen, still inside looking for the bloody light.
Q53What were you doing with the shotgun at that point?
AI had the shotgun across me left arm and still on safety, it was just a push of the thumb to push it off and then, bloody oath, she's alight then.
Q54Was the shotgun pointed at Peter?
ANo.
Q55When you told him to stop, did you say anything else as well?
ANo, I just said stop three times and he kept coming.
Q56What happened then?
AI thought jeese I'd better think fast and I wasn't panicking and I was as cool as a cucumber and just let go.
Q57When you say, let go, what do you mean?
AI pulled the trigger.
Q58Did you release the safety catch first?
AYeah, you've got to. I did it with me right thumb.
Q59How were you holding the shotgun when you fired?
AI had me left hand on the stock like and I held it up at him and said stop and when he didn't I just went boomph and gave it to him.
Q60What then?
AHe went down and gurgled and I thought he was going to get up again so I reloaded and went to give him another one. He didn't get up so I left it.
Q61Where did you hit Peter with the shotgun blast?
AI never looked when he went down, by jeese I never went near him.
Q62When you fired the shotgun at Peter, did you intend to kill him?
AYeah, he gurgled and twitched went he went down and I thought by jeese he's going to get up again and get into me so I loaded her up again with the other shell. It's still in it. It only takes a split second to split her open and drop another one in. She's got a trigger and another one that looks like a trigger and that's what you pull to break her open. It's quick.
Q63What did you do after that?
AI went to the sliding door. I'd picked up the used shell and put it in me pocket. I hollered out to Bert and then went to the door. Old Bert thought I was shooting at the possums and thought I was having him on. I said have a look outside and he went over to him and said fuckin oath, you've killed him. I said, ring somebody and he said he'd ring Charlie. I said fuck Charlie, you'd better ring the police or somebody. ...
Q73During the day and the evening you spent with Peter, did you have any arguments with him, other than about the dogs later on?
ANot at all, no.
Q74Has he ever assaulted you?
ANo.
Q75Has he ever threatened you at all?
ANo, jesus christ, if he'd only have stopped and walked away I would have left it.
Q76When he was walking towards you before he was shot, did he say anything?
ANo, just glared.
...
Q78Could you see Peter very clearly when he was coming towards you?
AYou might not believe it but over in Korea it was mostly night fighting, see, and your eyes become accustomed to the dark. I can just blink and see as clear as day. That's how I saw that he was just glaring at me.
...
Q81How much alcohol did you drink during the night?
AI don't know, a bloody lot of it.
Q82Did it affect you at all?
ANo, I knew what I was doing. I can hold me liquor pretty well.
Q83Did you have proper control of your movements?
AMy word, yes. I was right."
The appellant gave no sworn evidence. In his unsworn statement to the court he described the immediate events of the homicide:
"As we were driving out to Bert's place I thought we might see a hare or a rabbit along the road so I loaded the shotgun and put it on safe. As we drove into Bert's place I said to Peter 'This man's got pets too. For Christ sake don't let those dogs out.' Bert has got a small dog and had some ducks and some chooks. Peter said 'Have you got any cats Bert?' Bert said 'No I wont wear them.' We pulled up in front of Bert's house. Peter was nursing one of the dogs. Peter got out and that dog got out. Peter then called the other dog out. Bert finally got out and went to the door and then went inside. I could hear him mumbling away inside. I think he was looking for the light switch. The dogs started barking and chasing something in amongst the trees. I got out and walked over towards some wheels and an axle off a bullock dray. I had been nursing the gun in the car and I just carried it with me. I sang out to Peter 'For Gods sake Peter take control of those dogs'. The dogs were still barking and hunting something. They were making a hell of a racket. I stopped a little way from the wheels and axle and turned back towards the car. Peter was walking from the rear of the vehicle to the driver's side door. He just turned and headed straight towards me. His eyes were squinting. I sensed danger. I can't say why I just knew it. I knew he was going to bash me. I said 'Stop Pete". He kept coming. I said 'Stop Peter'. He still kept coming. I said 'Stop Peter' a third time. He kept coming. I can't explained why it happened. It just clicked. I had to stop him.
He was only two or three yards away. I fired. I have no idea where I hit him. I just had to stop him. I re-loaded quickly in case he got up and kept coming. I put the empty shell in my pocket. I then went straight to the door of the house and said 'Bert come quick I've shot a man'. He thought I was bullshitting. I asked him to come a couple of times. He finally came out and he knelt over the body. He said 'You've killed him'. He went berserk. I asked him to get the Police, a Doctor and Ambulance."
He added that he could not remember releasing the safety catch on the gun and that he shot the diseased "because it was the only way I could stop him from attacking me".

Insane Beliefs and Self Defence

The first ground of appeal is:
"The learned trial judge erred in ruling for the purposes of justification pursuant to s46 of the Criminal Code that the jury may pay regard only to the sane beliefs of the accused, namely ones which are not the product of a disordered mind".
The defence called evidence on the voire dire. The evidence was described by the learned trial judge in reasons for judgment published by him after the conclusion of the trial:
"... Medical files of the Department of Veterans Affairs and St Vincent's Hospital, Sydney, were tendered by consent. Those records showed a history consistent with a long standing mental disorder caused by war experience. Indeed, diagnoses such as war neurosis and anxiety neurosis had been made at various times since 1965. Such terms have been replaced by the adoption of a new diagnostic term, 'Post Traumatic Stress Disorder'. The medical files from St Vincent's Hospital related to the attack on the accused in 1988 and the injuries suffered by him as a result of that attack.
The second form of evidence was given by Dr Burges-Watson, a psychiatrist with extensive experience in the diagnosis and treatment of mental disturbances suffered by combat veterans. Based on his own examination of the patient and the medical records, he was able to make a diagnosis that the accused had, for a significant period of time, suffered from a mental disorder entitled post traumatic stress disorder. A cause of the disorder is often the trauma of combat. A manifestation of the disorder can be 'sudden acting or feeling as if the traumatic event were occurring, including a sense of reliving the experience, illusions, hallucinations and dissociative flash back episodes'.
On the basis of the criteria associated with the diagnosis, the doctor formed an opinion that the homicide could have occurred during a 'dissociative flash back episode in which Mr Walsh acted as he might have done if he'd been on active service in Korea'.
The behaviour as described by Mrs Forward was consistent with an acting out of the role of a sentry. If the homicide had occurred during a state of dissociation, then the accused 'would be acting as though he was back in the situational combat and feeling as though he was back at the situational combat'. In psychiatric terms the disorder is defined as a form of mental disease. Although the opinion of Dr Burges-Watson was to the effect that the state of dissociation was consistent with the conduct, he added that the accused may not have acted in a state of dissociation but nevertheless believed 'that the man coming towards him was a North Korean soldier ... who could be armed and who could be going to take his life'."

The sections of the Criminal Code relevant to the first ground of appeal are:
"15    Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
16-(1) A person is not criminally responsible for an act done or an omission made by him –
(a)when afflicted with mental disease to such an extent as to render him incapable of –
(i)    understanding the physical character of such act or omission; or
(ii)   knowing that such act or omission was one which he ought not to do or make; or
(b)when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.
(2)     The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.
(3)     A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed."
"46      A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."
Self defence under s46 involves a subjective and an objective test. The subjective test can be said to involve two questions, whether the accused was acting in defence of himself when he used the force in question, and what were the circumstances as he believed them to be which might be taken into account for the purposes of the objective test. The objective test is whether the force used was, in the circumstances as the accused believed them to be, reasonable to use. Once the evidence raises self defence as an issue the jury should be directed that they must acquit unless satisfied beyond reasonable doubt that the accused was not acting with justification under s46.
It was clear from the evidence on the voire dire that the appellant's post traumatic stress disorder, if it existed, was a mental disease as that expression is used in the Criminal Code, s16. At the conclusion of the evidence on the voire dire the learned judge ruled that it was admissible as being relevant to the defence of insanity under s16. However he ruled that if the evidence which was heard by the jury was similar in form and content it could not be used for the purposes of a defence under s46 except by way of s16(3). His Honour said that the only basis for finding that the appellant believed he was defending himself from an imagined enemy was the existence of the mental disease. His ruling continued:
"In order then for the jury to consider whether or not Mr Walsh killed at a time when he believed he was defending himself from an imaginary enemy, they will first of all be obliged to find, applying the correct standard of proof, that he was suffering from a mental disease or disorder. They could not proceed to find the belief without that. But if they found that he suffered from a mental disease or disorder within the meaning of the Code, then they would be obliged in law to consider the question of criminal responsibility. On that basis they would be precluded from determining Section 46 at all. The only use to which the evidence of Dr Burgess-Watson on this question of belief in combat, in relation to the question of Section 46, is by the operation of Section 16(3). It may be that some other parts of the evidence would be useful to the jury in their consideration of Section 46, but the central aspect of the possible consequences of the disorder, namely the process of dissociation, may not be used directly in relation to Section 46 except by way of Section 16(3). If such evidence comes before the jury I will direct them accordingly."
In substance and in more detail the evidence on the voire dire was repeated before the jury. In the course of his summing-up the learned judge directed the jury that the appellant could not be convicted of murder or manslaughter unless satisfied beyond reasonable doubt of all the ingredients of the crime in question. The summing-up then continued with his Honour directing the jury to consider inter alia the following questions in the following order:
1Was there a homicide, that is to say a killing of a person by the voluntary and intentional discharge of the loaded shotgun by the appellant? 2 If so, was the homicide culpable, that is to say:
(a)was it caused by an act intended to cause death or bodily harm or by an act which is commonly known to be likely to cause death or bodily harm; and
(b)was it not justified as an act of self defence under s46?
3For the purpose of a consideration whether the homicide was not justified, the law is that a person is justified in using, in the defence of himself, such force as in the circumstances as he believes them to be it is reasonable to use. When considering justification at this stage of their deliberations the jury might only pay regard to the sane beliefs of the appellant, namely ones which were not the product of a disordered mind. The jury therefore could not consider at this stage of their deliberations whether the appellant may have believed that he was being attacked by a hostile soldier from the past or by an attacker from Sydney for such a belief would, on the evidence, be the product of a disordered mind. The jury could however take into account that the appellant was standing there, it was dark, a man bigger than him was coming towards him, he knew the man had had some military training, he had memories of being wounded and of being attacked by men in Sydney, and he had a long history of being susceptible to his surroundings and of being worried about danger. If the jury was left with a reasonable doubt concerning whether the appellant was not justified in doing what he did in lawful self defence they should return a verdict of not guilty and proceed no further with their deliberations.
4If to this stage and on the directed basis the jury was satisfied that the appellant committed a culpable homicide they should next determine whether that culpable homicide had been proven to be murder. It was murder if committed with an intention to cause death, or with an intention to cause bodily harm which the appellant knew to be likely to cause death in the circumstances although he may have had no wish to cause death, or if it was committed by means of an unlawful act which the appellant knew or ought to have known to be likely to cause death although he may have had no wish to cause death or bodily harm. If the culpable homicide was not murder it was manslaughter.
5Having determined whether the culpable homicide was murder or manslaughter, the jury should then consider the question of criminal responsibility, that is to say insanity. The learned judge gave directions concerning the presumption of law that a person is deemed to be of sound mind and told them that once insanity was raised by the evidence it was an issue for the jury as to whether they were was satisfied on the balance of probabilities that the appellant had one of the states of mind caused by mental disease as are prescribed in s16(1). If the jury were satisfied on the balance of probabilities that the appellant was not responsible by reason of insanity within s16 the proper verdict would be "that the accused committed the act charged but is not guilty on the grounds that he was insane at the time so as not to be responsible according to law" in accordance with s383(2). The learned judge told the jury that the evidence of Dr Burges-Watson tended to support a conclusion that the appellant was not criminally responsible because his act was done when afflicted with mental disease to such an extent as to render him incapable of knowing that such act was one which he ought not to do (s16(1)(a)(ii)) or because it was done under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist (s16(1)(b)).
6If the jury were not satisfied on the balance of probabilities that the defence of insanity had been made out with the result that at this point, in the order of their deliberations as directed by the learned judge, they would have found the appellant guilty of murder or manslaughter, the jury should then proceed to consider whether the Crown had established beyond reasonable doubt that the appellant was not acting in lawful self defence under s46, this time taking into account any deluded beliefs of the appellant. They were entitled to consider whether the appellant had a belief that he was in a combat situation or "in the Sydney experience". The jury were told to treat such a deluded belief as if it was real and as if the appellant was in all other respects sane. His Honour added "I don't know how you would do that but it would seem to me that if you had found that he was believing there was a North Korean soldier in front of him, you would find that he was in a state of insanity back as we discussed yesterday and this morning, but if you were not satisfied on the balance of probabilities that he was insane, and you found he had a deluded belief, then you would treat him in the same way as if the deluded belief was real, that is is he entitled to defend himself against the North Korean. And in that test, 7.3," (a paragraph in a memorandum handed to the jury) "its for the Crown to disprove that he didn't act in that way. We're back into that reasonable doubt concept that I talked to you before."
In directing the jury in this way the learned judge was clearly mindful of the provisions of s16(3). It can be seen that he effectively directed the jury that for the purposes of justification under s46 the jury were entitled to take into account beliefs the appellant may have had whether induced by mental disease or not, but to ensure that the defence of insanity was properly considered he directed the jury to only consider justification in the context of a delusionary belief if the defence of insanity had not been established on the balance of probabilities. It is therefore difficult to understand the basis of the appellant's complaint in the first ground of his appeal. Although his Honour did purport to rule that the jury might pay regard only to the sane beliefs of the appellant for the purposes of justification under s46 he added "except by way of s16(3)".
Hawkins v R (No 2) 41/1993 makes it clear that the presumption of soundness of mind in s15 means, unless the contrary is proved on the balance of probabilities, "as a matter of fact that the accused was not afflicted at the relevant time with mental disease to such an extent as to render him incapable of understanding the physical character of his act or knowing that such act was one which he ought not to do and did not do the act charged under an impulse which by reason of mental disease he was in substance deprived of any power to resist". Per Cox J at 9-10 and see my judgment at 4. Zeeman J at 16 effectively agreed but added a reference to delusions under s16(3) in the following passage:
"If that is right then s15 is no more than a presumption of an absence of mental disease having one of the effects referred to in s16(1) and possibly an absence of any delusion having the effect referred to in s16(3). Insofar as s16(3) is concerned it should be remembered that the questions asked of the judges in R v M'Naghten (supra) were asked in terms of insane delusions generally. The form of the questions no doubt reflected the then state of knowledge about mental disease. It may be that s16(3) is an anachronism as the present state of knowledge of psychiatry would suggest that it describes a condition which is apparently incapable of existing (see Howard's Criminal Law 5th ed 462). It is not necessary to consider the ambit of s16(3) for the purposes of the present case."
If the jury rejected insanity the presumption remained. The jury should have been directed that if they rejected insanity they were obliged to presume that the appellant was not affected by mental disease in one of the ways postulated by s16(1).
On the evidence, if the appellant believed that he was being attacked or approached by an enemy soldier or by some assailant from Sydney the cause of that belief was his mental disease, that is to say the post traumatic stress disorder. If he acted in defence of himself under the influence of such a belief he was insane within the second limb of the M'Naghten rules because he was affected with mental disease to such an extent as to render him incapable of knowing that his act was one which he ought not to do (s16(1)(a)(ii)). The second limb was explained by Dixon J in R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190:
"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong."
See also Sodeman v R[1936] HCA 75; (1936) 55 CLR 192 at 215; Stapleton v R[1952] HCA 56; (1952) 86 CLR 358 at 367; R v S(1979) 2 NSWLR 1 at 42.
There was no direct evidence that the appellant did believe that he was being approached by an enemy soldier or by an assailant from Sydney, or by anyone other than a person who he knew and recognised to be the deceased. That he may have had such a belief only arose as an issue in the trial because Dr Burges-Watson expressed his opinion that a mental disease, that of post traumatic stress disorder, probably caused the appellant to so believe. If the jury accepted the validity of that opinion on the balance of probabilities the defence of insanity was established. If the jury did not accept that opinion the presumption of sanity remained and it was no longer open to the jury to contemplate that such a belief may have been held by the appellant for on the evidence the only cause for the existence of such a belief was the mental disease itself. This view is consistent with the views of Cox J and me in Hawkins v R (No 2) (supra) and I think also with the views expressed by Zeeman J in that case.
It therefore follows that on the evidence heard on the voire dire and before the jury the learned trial judge would have been correct if he had ruled that for the purposes of justification pursuant to s46 the jury were only entitled to pay regard to the sane beliefs of the appellant. With respect I am of the view that his Honour was wrong when he directed the jury towards the end of his summing-up that if they were not satisfied on the balance of probabilities that the defence of insanity had been made out they could once again return to s46 and take into account any deluded beliefs held by the appellant. On the evidence deluded beliefs were necessarily excluded by the jury if they rejected the defence of insanity.
I do not say that evidence concerning a mental disease and its affects may never be regarded by a jury when considering s46 in circumstances where the defence of insanity has been rejected. But when that defence has been rejected the presumption of sanity remains. With respect the learned trial judge was in error by failing to instruct the jury accordingly and by returning to s46 and leaving them with deluded beliefs for further consideration. The result was that the appellant had a more favourable summing-up than that to which he was entitled.
Ground 1 of the appeal therefore fails. It is unnecessary to determine whether s16(3) could ever operate in a particular case. It cannot operate in this case because it followed from the evidence that rejection by the jury of the defence of insanity required them to presume that the appellant was not insane and that as a matter of fact he was not affected by any of the suggested delusions.

Unsafe and Unsatisfactory Verdict

The second ground of the appeal is that the verdict of the jury was unsafe and unsatisfactory.
If the jury had been correctly directed as to the law, there were only two verdicts reasonably open for serious consideration, one being guilty of murder and the other not guilty on the ground of insanity. An outright acquittal was not worthy of serious consideration for the appellant admitted that he deliberately discharged the shotgun at the deceased from close range. What he did could not be regarded as a reasonable act of self defence if he was sane. Nor was a verdict of manslaughter reasonably open on the evidence for at the very least a reasonable jury would have had no choice but to conclude that, insanity aside, his act was an unlawful one and one which he ought to have known to be likely to cause death.
This ground of the appeal therefore falls to be considered as one asserting that not only was the verdict of guilty of murder unsafe and unsatisfactory, but also that the only verdict open to a reasonable jury on the evidence was one of not guilty on the ground of insanity. The Court must decide upon a review of the evidence whether it was open to the jury, if acting reasonably, to conclude that it was not satisfied on the balance of probabilities that the appellant was not guilty on the ground of insanity. Expressed differently the question is whether the jury, acting reasonably, must have found in favour of the appellant on the ground of insanity. The principles upon which the Court must proceed are well established by cases such as Chidiac v R[1991] HCA 4;(1991) 171 CLR 432, Chamberlain v R (No 2)[1984] HCA 7; (1984) 153 CLR 521 and Morris v R[1987] HCA 50; (1987) 163 CLR 454. It is not the function of the Court to substitute itself for the jury and retry the case, and it must recognize that issues of credibility and reliability of oral testimony are matters primarily for the jury.
Whether the verdict should have been an acquittal on the ground of insanity depends on whether the opinion of Dr Burges-Watson as to the appellant's insanity should have been accepted. There was, of course, no other expert testimony on the subject but it does not follow that the jury were obliged to accept Dr Burges-Watson's opinion. It has been emphasised in other courts that the decision is for the jury and not for doctors. See for example R v Matheson(1958) 42 Cr App R 145 at 151; R v Shearsmith(1967) Qd R 576 at 588-9. But the verdict must be founded on evidence. "If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence.' ... If then there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility and no facts or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is unsupported by the evidence. ... If there is evidence and a proper direction, this court will not usurp the function of the jury, unless indeed there is evidence so overwhelming that the court comes to the conclusion that, though it might be said there was some evidence the other way, the verdict would amount to a miscarriage of justice." Matheson (supra) at 151-2. See also R v Dick(1966) Qd R 301.

Whether the jury should have found as a fact, on the balance of probabilities, that the appellant believed that he was being approached by an enemy soldier or an assailant from Sydney, or was otherwise in a state of dissociation, depended entirely on whether the jury accepted the opinions of Dr Burges-Watson. The appellant did not claim to the police or in his unsworn statement that he held either of such beliefs or that he was dissociated. The following passage from the judgment of Smithers J in Taylor v R(1978) 22 ALR 599 at 608 is particularly pertinent:
"It is clear, therefore, that in a case such as the present the jury should understand that the medical opinions are central to the case for the accused, that they may be sufficient of themselves to prove as a fact what the state of mind of the accused was at the critical time, and that, where they are accepted as honest and competent and are unchallenged, then unless the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed, the jury should not reject or ignore those opinions. Compare R v Matusevich and Thompson [1976] VicRp 47; (1976) VR 470 at 475 where the presence of 'a strong and completely sane motive for the killing', and premeditation, were held to explain the jury's refusal to act upon uncontradicted psychiatric evidence which was all one way (cf also R v Tobin(1978) NZLR 423). But it is vital that the jury should understand that the opinions of the qualified experts are evidence of the facts the existence of which the experts assert by way of opinion and are to be given such probative weight as is appropriate to their validity as assessed by the jury."
The following passage from the judgment of Loveday J in Hall (1988) 36 A Crim R 368 at 380-1 is also worth citation for its statement of principle:
"There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton (1978) AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester (1982) Qd R 252; 5 A Crim R 296."
The evidence was overwhelming that up until a minute or so before the shooting there was no ill-feeling between the appellant and the deceased. They had been in each other's company for many hours and contentedly so. Just before they reached Mr Forward's house they planned going shooting together. Although the appellant told the deceased not to let his dogs out at the house there was no evidence to suggest that there was any argument about that before Mr Forward left the vehicle and went inside.
It would have been unreasonable of the jury not to accept the evidence of Dr Burges-Watson that the appellant had suffered from post traumatic stress disorder since his service in Korea in 1953. I do not propose to deal in detail with all of the reasons for the correctness of that diagnosis but it was well established by the evidence. The doctor was very well qualified to express it, having had experience in an army and navy psychiatric hospital, experience in the treatment of those who had served in the armed forces, and well over 20 years as a psychiatrist. He was the author of a number of publications in a variety of journals on the subject of post traumatic stress disorder and its treatment. His opinion that the appellant suffered from the disorder was based inter alia on a consideration of the appellant's service records and a number of medical records in evidence which, as was said by the learned trial judge, "showed a history consistent with a long standing mental disorder caused by war experience. Indeed, diagnoses such as war neurosis and anxiety neurosis had been made at various times since 1965. Such terms have been replaced by the adoption of a new diagnostic term, 'Post Traumatic Stress Disorder'."
According to Dr Burges-Watson a number of criteria need to be satisfied for the diagnosis and he explained why he considered they had been in relation to the appellant. One of them was that the person had experienced an event that was outside the range of usual human experience and that would be markedly distressing to almost anyone. Examples would include a serious threat to his life or physical integrity. The evidence revealed that the appellant had been seriously injured by shrapnel while on patrol in Korea and as a result of his injuries he had received a disability pension since his discharge from the army in 1954. Another traumatic incident occurred to him in 1988 when he was seriously injured in an attack on him by a number of people in a Sydney park. About a year later he was assaulted in his home, according to the appellant's unsworn statement when he was hit from behind. I mention these incidents because they formed the core of the diagnosis and an explanation for what occurred at the critical moment outside Mr Forward's house.
Dr Burges-Watson explained that if a person who suffers post traumatic stress disorder is confronted by a situation which resembles his original traumatic experience that can trigger what is called a dissociative flash-back where, taken by surprise, the person relives the experience, either by feeling as though he is back in the situation of his original trauma or by acting as though he is back in that situation, or a combination of both. In the doctor's opinion the killing of the deceased most probably took place as part of a dissociative flash-back episode in which the appellant acted as he might have done had he been on active duty in Korea. In broad terms a dissociative flash-back is a disintegration of the normal functioning of the mind in which some part of the person's mind, that isn't normally active, takes over from the part that normally is and the person acts from what is normally an unconscious part of their mind. The appellant was more likely to be acting as a soldier on duty as part of his dissociative flash-back at the time he fired the gun. At the relevant time there may also have been elements of the mugging in Sydney acting upon his mind.
Dr Burges-Watson's opinion was strongly supported by the weakness of the evidence so far as a sane motive was concerned. Counsel for the Crown submitted that there was sufficient evidence of a sane motive including in particular that the appellant may have become angered by the failure of the deceased to bring his dogs under control. Although it must be conceded that the evidence shows that there may have been such a motive, I find that the explanation for the killing as provided by Dr Burges-Watson is far more convincing. Shooting a man with a shotgun because he has failed to bring his dogs under control, in circumstances where they are simply running around barking, seems a most unlikely motive for killing a person with whom a warm relationship existed only a moment before.
Dr Burges-Watson explained that following a dissociative flash-back there is usually amnesia for all or part of the episode. There could be a patchy memory of what occurred for the person might fluctuate in and out of being rational and not being rational. A person with only patches of recollection will endeavour to make sense and therefore reconstruct when trying to explain what had taken place. These explanations are plainly consistent with the evidence and in particular with the evidence of Mr and Mrs Forward. Mr Forward said that immediately following the shooting the appellant said to him "I've shot a man", or words to that effect, which strongly suggests a lack of awareness concerning some of what had happened. Mr Forward also said that on being asked why he had shot the man the appellant said he did not know. It is clear from the evidence that the appellant was calm and sensible about the need for the police to be called. It can be seen from Mrs Forward's evidence that initially the appellant was confused and not making sense but after a time his attitude appeared to change and eventually, particularly with the police, he gave an explanation for what had taken place with some semblance of order. His statements to Mrs Forward when in a confused state strongly support Dr Burges-Watson's opinion that he had been in a dissociative state, arising from his Korean experience in particular, at the time of the shooting.
I find particularly significant that Dr Burges-Watson stated that it was his very strongly held opinion that the appellant "is a classic case of a post traumatic stress disorder" and that the deceased was killed in a dissociative episode, notwithstanding that he accepted that what took place outside Mr Forward's house was an isolated incident and that no one could get inside the appellant's mind. He added that assuming the existence of post traumatic stress disorder and a dissociative state the appellant would have acted as he did on an impulse which he would have been powerless to resist.
The Court must take into account that this is not a case where the demeanour of witnesses was likely to be a major influence on the minds of the jury. It must also take into account that the Crown called no contrary psychiatric evidence to rebut Dr Burges-Watson's strongly held view.
For all these reasons I conclude that the verdict of guilty of murder was not a verdict to which the jury reasonably could have come and that it should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence (s402(1)). The verdict should be quashed and in its place there should be substituted a verdict that the appellant committed the act charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law. In these circumstances it is unnecessary to consider the remaining grounds of the appeal.

Serial No A68/1993
List "A"
File No CCA47/1992

LEWIS ALEX WALSH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ZEEMAN J
19 August 1993

I have had the advantage of reading the reasons for judgment prepared by Crawford J. I agree with those reasons and with the orders proposed by his Honour.
The view expressed by him that a rejection by the jury of Dr Burges Watson's opinion resulted in it no longer being open to the jury to contemplate that the appellant may have had a deluded belief as to the identity of the deceased is entirely consistent with the views which I expressed in Hawkins v R (No 2) 41/1993.
I mention that after judgment was reserved, counsel drew to the attention of the Court the judgment of the Victorian Full Court in R v Matusevich and Thompson [1976] VR 470 and in particular the observations of the court appearing, at 476-477, suggesting that an appellate court ought to be most reluctant to substitute a verdict of acquittal on the ground of insanity. I accept that it must be a rare case where an appellate court takes this course. This is such a rare case. I find it very difficult to see how any jury acting reasonably could have reached any verdict other than that the appellant was not guilty by reason of insanity.