Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Potts v R [2012] NSWCCA 229
• Hearing dates: 16 March 2012
• Decision date: 09 November 2012
• Before: McClellan CJ at CL at [1]; Johnson J at [3]; Fullerton J at [188]

Decision

Appeal against conviction dismissed.

Grant leave to appeal against sentence, but appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal against conviction - murder - appellant kills woman in 2008 - appellant previously convicted of manslaughter of father in 2000 by reason of substantial impairment - evidence of 2000 manslaughter adduced before jury at trial for 2008 murder - whether defence counsel objected to evidence - whether Rule 4 Criminal Appeal Rules applies - nature of partial defence of substantial impairment - defence counsel did not press objection to evidence - Rule 4 applies - no error established - proviso applicable in any event - whether murder conviction unreasonable - whether appellant should have been convicted of manslaughter by reason of substantial impairment - ground rejected - appellant rightly convicted of murder - conviction appeal dismissed; CRIMINAL LAW - appeal against sentence - murder - prior conviction for manslaughter - relevance of mental illness to sentence - paranoid schizophrenia - whether inappropriate weight given to general deterrence - whether sentence manifestly excessive - dangerousness and protection of the community - high risk of further violent conduct - no error demonstrated - sentence not manifestly excessive - sentence appeal dismissed
• Legislation Cited: Crimes Act 1900; Evidence Act 1995; Criminal Procedure Act 1986; Criminal Appeal Act 1912; Crimes (Sentencing Procedure) Act 1999; Mental Health (Forensic Provisions) Act 1990; Crimes (Administration of Sentences) Act 1999; Criminal Appeal Rules
• Cases Cited: R v Potts [2001] NSWSC 753; Veen v The Queen [No. 2] [1988] HCA 14; 164 CLR 465; R v Potts [2010] NSWSC 731; R v Trotter (1993) 35 NSWLR 428; R v Ryan (1995) 90 A Crim R 191; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241; R v Hucker [2002] NSWSC 1068; Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1; R v FDP [2008] NSWCCA 317; 74 NSWLR 645; Shepherd v R [2011] NSWCCA 245; Abbosh v R; Bene v R [2011] NSWCCA 265; R v Abusafiah (1991) 24 NSWLR 531; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346; TKWJ v The Queen [2002] HCA 46; 212 CLR 124; Ali v The Queen [2005] HCA 8; 214 ALR 1; Gilbert v The Queen [2000] HCA 15; 201 CLR 414; RWB v R [2010] NSWCCA 147; 202 A Crim R 209; M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; Morris v The Queen [1987] HCA 50; 163 CLR 454; SKA v The Queen [2011] HCA 13; 243 CLR 400; The Queen v Hillier [2007] HCA 13; 228 CLR 618; The Queen v Keenan [2009] HCA 1; 236 CLR 397; Rasic v R [2009] NSWCCA 202; R v Welsh (1996) 90 A Crim R 364; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; R v Engert (1995) 84 A Crim R 67; R v Fraser [2005] NSWCCA 77; R v Lo [2003] NSWCCA 313; Ta'ala v R [2008] NSWCCA 132; R v Wright (1997) 93 A Crim R 48; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179; R v Mostyn [2004] NSWCCA 97; R v Ah-See [2004] NSWCCA 202; R v Achurch [2011] NSWCCA 186; R v Wickham [2004] NSWCCA 193; Rigby v R [2006] NSWCCA 205; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258; R v Wilkinson (No. 5) [2009] NSWSC 432; Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575; R v Garforth (NSWCCA, 23 May 1994, unreported); Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; Norrie v R [2008] NSWCCA 185
• Texts Cited: ---
• Category: Principal judgment
• Parties: Malcolm Robert Potts (Appellant); Regina (Respondent)
• Representation: Mr MC Ramage QC; Mr IS McLachlan (Appellant); Ms N Noman (Respondent); Peter Baker Solicitor (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/6625
• Publication restriction: ---

Decision under appeal

• Citation: R v Potts [2010] NSWSC 731 (sentence)
• Before: Kirby J
• File Number(s): 2009/6625

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Johnson J in draft. I agree with his Honour's analysis of the issues raised in the appeal against conviction. I have myself reviewed the entirety of the evidence relevant to ground 2 and share Johnson J's view that the appellant failed to make out the elements of substantial impairment under s 23A Crimes Act 1900 so as to warrant a verdict of guilty of manslaughter.

2 I also agree with Johnson J in relation to the application for leave to appeal against sentence.

3 JOHNSON J: The Appellant, Malcolm Robert Potts, appeals against conviction and sentence following a trial before Kirby J and a jury on a charge of murder committed on 14 September 2008.

4 The trial of the Appellant commenced on 8 March 2010 and concluded with a verdict of guilty of murder on 22 March 2010.

5 On 23 July 2010, Kirby J sentenced the Appellant to imprisonment comprising a non-parole period of 21 years commencing on 14 September 2008 and expiring on 13 September 2029, with a balance of term of seven years expiring on 13 September 2036.

6 In 2000, the Appellant killed his father. He went to trial for murder, but was convicted of manslaughter on the basis of substantial impairment. He was sentenced by Hidden J to a head sentence of seven years' imprisonment with a non-parole period of three years and nine months expiring on 5 February 2004: R v Potts [2001] NSWSC 753.

7 The unusual circumstances of this case present (in the conviction grounds) issues concerning the operation of the partial defence of substantial impairment, together with questions (in the sentence grounds) involving considerations addressed by the High Court of Australia in Veen v The Queen [No. 2] [1988] HCA 14; 164 CLR 465.

The Appellant Kills a Woman in 2008

8 The circumstances giving rise to the 2008 murder charge were described in the following way in Kirby J's remarks on sentence: R v Potts [2010] NSWSC 731 at [1]-[5]:

"1Emma King was a sex worker in Kings Cross. She had an arrangement when she worked outside the Kings Cross area that she could telephone a friend who would then pick her up.

2At 4.26 am on Sunday 14 September 2008, Ms King sent a text message to her friend, nominating the address of a home unit in Ashfield. The address was correct, apart from the street number of the block of units. Her friend went to Ashfield but was not able to find her. At 4.43 am he telephoned her seeking clarification. They spoke briefly and he continued his search. He phoned again at 4.54 am, but his call went to voicemail. He continued to call every few minutes over the next few hours, but his calls went unanswered.

3Ms King's partner went in search of her in the early hours of Sunday morning. The street referred to in the text message was short. She was able to identify a block of units as the likely address from which Ms King had telephoned. A man was seen in that unit, peeping through a window. She notified the police.

4Later that morning the police sought entry. The occupant would not open the door. Ultimately the door was forced and the police entered the unit. Malcolm Potts was the owner of the unit. He stood inside the unit with a knife in each hand. He was persuaded by police to drop the knives. The unit was then searched. The police found the dead body of Emma King concealed under a bed. She was naked. She had died of stab wounds to the back.

5Malcolm Potts was then charged with the murder of Emma King. He pleaded not guilty. He later acknowledged that he had stabbed Emma King, but said he had done so in self defence. Alternatively, it was suggested that the stabbing occurred at a time when he was substantially impaired by reason of an abnormality of mind. On 22 March 2010, after a jury trial, Malcolm Potts was convicted of the murder of Emma King."

Grounds of Appeal

9 The Appellant relies upon the following grounds of appeal against conviction:

(a)Conviction Ground 1 - his Honour erred in permitting evidence to be adduced before the jury of a previous homicide committed by the Appellant.

(b)Conviction Ground 2 - the jury verdict was unreasonable.

10 The Appellant seeks leave to appeal against sentence upon the following grounds:

(a)Sentence Ground 1 - his Honour erred in failing to take into account the fact that because of his mental illness:

(i)the Appellant was an inappropriate vehicle for any general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed; and

(ii)a custodial sentence would weigh more heavily on the Appellant, resulting in a reduction in the sentence which would otherwise have been imposed.

(b)Sentence Ground 2 - the sentence was manifestly excessive.

Conviction Ground 1 - Suggested Error in Permitting Evidence to be Adduced of a Previous Homicide Committed by the Appellant

11 The first ground of appeal against conviction asserts error on the part of the trial Judge in permitting evidence to be adduced before the jury of a previous homicide committed by the Appellant, being the manslaughter of his father in 2000.

12 The Appellant was born in October 1967 and, at the age of 18 years, was diagnosed with paranoid schizophrenia. Kirby J found on sentence, that this is a disease which is more disabling at some times than at others. However, in the 10 years prior to September 2008, the Appellant's symptoms were described by his doctor as "fairly chronic". He was under the care of a community health centre which he attended every two weeks, and he was given an injection of antipsychotic medication, the last such injection being given about a week before the fatal incident: R v Potts [2010] NSWSC 731 at [7].

13 After the Appellant's release on parole in 2004, he was subject to ongoing psychiatric care. This care continued after his parole was breached, and again after his parole had expired.

14 As mentioned earlier, the Crown alleged (and the Appellant admitted) that, on the morning of 14 September 2008, he fatally stabbed the deceased, who was a sex worker who had attended voluntarily at the Appellant's apartment. At the time of the stabbing, the victim was fully clothed. The Appellant then dragged her body into a bedroom where he placed her onto a bed and removed her clothing. The sentencing Judge was satisfied beyond reasonable doubt that the Appellant had sexual intercourse with the victim after her death: R v Potts [2010] NSWSC 731 at [28].

15 Doctor Sophie Kavanagh, psychiatrist, was involved in the care of the Appellant during the period after his release in 2004, and continuing up to his arrest for the subject offence on 14 September 2008. The Crown called Dr Kavanagh as a witness in the trial.

16 In addition, two forensic psychiatrists, Dr Stephen Allnutt (for the Appellant) and Dr Bruce Westmore (for the Crown) had prepared reports for the trial. Both Dr Allnutt and Dr Westmore had involvement with the Appellant well prior to 14 September 2008.

17 Although it was not clear at the start of the trial as to whether either Dr Allnutt or Dr Westmore would be called to give evidence at the trial, Dr Allnutt was called in the defence case (after the Appellant had given evidence) and Dr Westmore was called in the Crown case in reply.

Submissions for the Appellant

18 Mr Ramage QC, for the Appellant, submits that evidence of the Appellant's earlier manslaughter conviction was allowed over the objection of trial defence counsel. Although Mr Ramage QC acknowledged that the trial Judge had not given any judgment on the objection, he contended that objection was taken and maintained which, in effect, sought the exclusion of the evidence of the previous homicide upon the basis that its probative value was clearly outweighed by the danger of unfair prejudice to the Appellant: s.137 Evidence Act 1995.

19 Mr Ramage QC agreed that trial defence counsel came to accept that evidence should be adduced of the fact that the Appellant had been convicted of manslaughter of his father on the basis of substantial impairment, but he contended that this constituted a fallback position at trial in the event that the primary objection to the material being tendered was overruled.

20 Accordingly, Mr Ramage QC submitted that leave was not required under Rule 4 Criminal Appeal Rules, as the point had been taken at trial. Further, he submitted that the material was so prejudicial that its admission deprived the Appellant of a fair trial.

21 Although the trial Judge had given the jury firm directions in the course of the trial and in the summing up against any tendency reasoning, Mr Ramage QC submitted that irremediable prejudice had resulted from the admission of the evidence, and that this could not be overcome by the directions given.

22 He contended, in particular, that admission of evidence of the previous homicide was prejudicial on the second leg of substantial impairment, under s.23A(1)(b) Crimes Act 1900, namely the question whether an impairment was so substantial as to warrant liability for murder being reduced to manslaughter, this being a value judgment to be undertaken by the jury, applying community standards.

 

Submissions of the Crown

23 The Crown submitted that a fair reading of the trial transcript indicated that no objection to the admissibility of evidence of the prior homicide was truly pressed by trial defence counsel.

24 It was submitted that discussion took place in the absence of the jury, during which the trial Judge, the Crown and defence counsel discussed these issues, but that no objection under s.137 Evidence Act 1995 was pressed which required the trial Judge to give a decision on the issue. In these circumstances, the Crown submitted that Rule 4 applies so that leave to rely upon the ground is required.

25 In any event, the Crown submits that the whole history of the Appellant, and the circumstances of his treatment by psychiatrists, was relevant to issues in the trial and this serves to explain, as well, the approach taken by defence counsel at trial.

26 As the evidence of the Appellant's previous homicide was tied up in the psychiatric evidence to be adduced before the jury from Drs Kavanagh, Allnutt and Westmore, the Crown submitted that it was appropriately admitted at trial.

27 Further, the Crown submitted that the trial Judge gave firm directions to the jury to guard against any possible misuse of this evidence. It was submitted that this Court should approach this ground upon the basis that the jury complied with the trial Judge's directions in accordance with the oaths and affirmations which the jurors took at the commencement of the trial.

 

The Partial Defence of Substantial Impairment

28 Before moving to this ground of appeal, it is appropriate to consider the nature of the partial defence of substantial impairment at a murder trial.

29 Section 23A(1) Crimes Act 1900 permits a person tried for murder to be convicted of manslaughter in the following circumstance:

"(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter."

30 "Underlying condition" is defined in s.23A(8) as meaning "a pre-existing mental or physiological condition, other than a condition of a transitory kind".

31 The onus lies upon the accused person to prove (on the balance of probabilities) that he or she is not liable to be convicted of murder by virtue of the section: s.23A(4).

32 For the purpose of s.23A(1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible: s.23A(2).

33 It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question".

34 The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s.23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter "is both a legal distinction and a moral one" (SU66). Manslaughter is regarded as "having less culpability than murder and it is, therefore, punished less severely" (SU66). If that "incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter" (SU68).

35 Section 23A(1)(b) has been described as giving rise to "an issue which is quintessentially one for the determination of a jury": R v Hucker [2002] NSWSC 1068 at [2] (Howie J).

36 A question raised on this appeal is whether a jury considering a partial defence of substantial impairment, and thus undertaking the value judgment or moral assessment concerning the accused person's culpability required under s.23A(1)(b), is entitled to have before them, not only evidence of the accused person's history of violent conduct and of psychiatric assessment and treatment, but also evidence that he had killed a person at an earlier time in circumstances where substantial impairment was raised successfully to reduce the crime from murder to manslaughter.

 

How Substantial Impairment Came to be Raised at the Trial

37 The resolution of this ground requires some understanding of the way in which substantial impairment arose as a trial issue.

38 A notice under s.151 Criminal Procedure Act 1986 had not been filed and served on the Crown before trial indicating that a defence of substantial impairment was to be relied upon.

39 Discussion took place between the trial Judge and counsel on this question before the jury was empanelled on 8 March 2010. As will be seen, the position did not culminate in a judgment being delivered by the trial Judge nor was one sought by defence counsel on the issue.

40 On 8 March 2010, before a jury was empanelled, the trial Judge observed that the matter had been mentioned a number of times and that there had been exploration of a possible defence of substantial impairment. It is clear that reports of Dr Allnutt and Dr Westmore were in existence at that time, with those reports adverting to the previous homicide and its consequences (T2, 8 March 2010).

41 It is important to bear in mind that Dr Westmore had first assessed the Appellant in 2001, in the context of the earlier homicide case. Dr Allnutt had first assessed the Appellant in 2006, in the context of another criminal prosecution against him. Unusually, this was not a trial where these two very experienced forensic psychiatrists had met the Appellant after the events of 14 September 2008 which gave rise to the present charge. Accordingly, it was inevitable that the jury would hear that these forensic psychiatrists had extensive involvement with the Appellant before the killing of Ms King on 14 September 2008.

42 Defence counsel raised with the trial Judge the fact that there would be references to earlier offences in the context of the psychiatric opinions (T2). He indicated that, to minimise prejudice, he was desirous to restrict the references to "three or four offences to which some of them refer" (T3.7 - AB575).

43 The Crown Prosecutor informed the trial Judge that it was inevitable that previous offending would be before the jury, as Dr Kavanagh relied upon the whole history of offending in reaching her opinion (T3.17).

44 In the course of this discussion, the trial Judge remarked (T3.34):

"Yes. I can understand what you say. It is the total history which is the basis for each opinion. It is not simply the recent history nor even the fact that he has been diagnosed at some point with schizophrenia and plus that recent history, it is the totality of the history which one imagines they would each regard as important as the report suggests is important to the opinion they ultimately expressed."

45 Defence counsel acknowledged that the previous history was pertinent but not the "full facts or the full convictions" (T3.50). He did however indicate that although some of the offending was "highly prejudicial", it was of benefit in showing the Appellant's state of mind (T4.5). He confirmed that he was "never of the view that something wouldn't come in" (T4.29).

46 At the time of this discussion, it was not certain that the defence would seek to rely upon substantial impairment. At that time, the medical evidence did not support a partial defence of substantial impairment (T5.2). The issue was not then resolved, it being observed that the past history material would probably not be relevant unless substantial impairment was raised (T6.11).

47 Before substantial impairment was confirmed as a trial issue, defence counsel adduced evidence in cross-examination of Sergeant Whyte (T201) and Detective Sergeant McCarthy (T231) revealing the Appellant's prior involvement with the police.

48 On 11 March 2010, the fourth day of the trial, discussion took place in the absence of the jury concerning evidence to be adduced from Dr Kavanagh. The Crown indicated that Dr Kavanagh was to be called in response to defence questioning that had elicited evidence of the Appellant's mental difficulties, including schizophrenia (T235.32).

49 It was at this stage of the trial that the issue raised by the first conviction ground was further ventilated (T235-241).

50 The Crown submission at trial was, in effect, that the substance of the Appellant's offending was intrinsic to the psychiatrist's opinion and, for the jury to be able to assess the psychiatrist's evidence, it would be necessary for them to comprehend the basis of the expressed opinion. Defence counsel did not challenge this broad proposition.

51 Defence counsel conceded that the jury should be aware that Dr Kavanagh was the Appellant's treating psychiatrist, that the Appellant had a history of violence associated with his schizophrenia, and that he had been on parole (T236.34-36). It was submitted, however, that the jury did not need to be informed that the "history of violence" included manslaughter. This submission was made on the basis that it would "distract from everything else" and that the "prejudice is just too great" (T236.46-49).

52 Defence counsel made the following submission, which Mr Ramage QC (who did not appear at trial) submitted in this Court constituted an effective objection under s.137 Evidence Act 1995 (T237.17):

"The Crown can still get the same material it needs as I can without going down that path. That is my main objection, your Honour, because the prejudice, in my respectful submission, is just far too great to circumvent and immediately would distract from the main issues here.

Unless there is something else, that is my main objection that ordinarily it is not relevant. It has certainly a tendency flavour about it, not that the Crown is leading it on that, naturally."

53 His Honour observed immediately (T237.26-238.17):

"HIS HONOUR: I will give a tendency warning. I would say that they must not reason because he has another previous offence of manslaughter therefore he has a tendency to commit that sort of crime.

I will think about exactly what I do say but in some respects I think to leave it up in the air as to what the violence was and who the objects were and what happened and so on in many ways is worse. In many ways it leads to speculation, the nature of the crime, the gravity of the crime and so on. In some ways, especially if one looks at Justice Hidden's judgment, I mean the fact that killing your father is perhaps more comprehensible than killing a perfect stranger in the sense that most murders do involve family members and arise out of family turmoil in relationships which this is not part. It just seems to me there is an air of unreality to the exclusion of this material.

This is the material upon which not only Dr Kavanagh but, ultimately, Dr Westmore, Dr Allnutt, have each based their opinions upon extensive psychiatric notes which derive from the prison records, the medical records. Now you may challenge them about some aspect, which at this moment I can't foresee, and suddenly they need to justify their opinion by reference to material they have read. It becomes very difficult and very awkward."

54 Defence counsel responded to the trial Judge in the following way (T238.19-239.33) (emphasis added):

"BONNICI: I agree with your Honour, it is. I am not suggesting it is an easy task. I am having difficulty with it too to balance both sides. However, I think the warning about causing them not to speculate which your Honour will give in any event is probably a lot better than saying well the fact he has killed his father and there was a manslaughter charge and I suppose there is a charge of murder and how they can go into detail after that I don't know, is probably, in my respectful submission, far more prejudicial than the risk of speculation because the nature of the actual offence itself and the particulars of that offence do not change the character of Mr Potts.

HIS HONOUR: In some ways it is in your favour because the inference they may draw from it is the correct inference, that is, that he was ultimately convicted of manslaughter or pleaded guilty to manslaughter, I am not sure which.

BONNICI: He was found guilty of manslaughter because of substantial impaired judgment.

HIS HONOUR: Yes because of substantial impairment. Now in this case we ultimately have three possible paths by which the jury may reach manslaughter. One is through not being satisfied as to intention in which case they consider dangerous and unlawful act. It would be very surprising if they did not take the view this was a dangerous and unlawful act. The second which is through the path of self-defence and if they get to that issue then they have to consider or they may have to consider excessive self- defence. Again, given the disparity between the different individuals and the nature of the injuries, that is one possible version.

The third one is the one for which you are contending but they are all available and they are all possibilities and that is substantial impairment. Now the fact that he has previously committed an offence and been convicted and that offence was manslaughter does rather suggest, as is the fact, that some jury has found or someone has found that his judgment was substantially impaired by reason of mental illness.

Now I would have thought that that is something more likely in your favour. I mean it is not like the usual case where there is a real chance of acquittal. Of course there is a chance always but in the real world I think in terms of considering the prejudice on these facts you would acknowledge, I imagine, that the most likely outcome overwhelmingly is manslaughter.

BONNICI: In fact may I say this, as I understood the Crown submission the Crown was only going to make reference to the offence but if included in that would be the fact that the original charge of substantial impairment was found and then it was manslaughter I certainly probably would warm to that because that balances it out.

HIS HONOUR: That is not a bad suggestion.

BONNICI: I thought the Crown was just going to leave it but [if] all that comes in and I must say that opens the door and I put it on record now, when I first read this brief and I think I pointed out once already there are a lot of reports around 2004 from Probation and Parole officers suggesting he should not be released because he was still a risk to the community. If the Crown goes down that path I certainly would continue. That is what I am saying.

HIS HONOUR: I don't understand the Crown to be opening up that or relying on that. That seems to me somewhat remote, too remote from 2008. But I think your suggestion, combined with the plan which the Crown has outlined, which is really fundamental in paragraph 4 of Dr Kavanagh's report, together with the fact that the jury, that it was a jury verdict based upon or it was a verdict based upon substantial impairment by reason of abnormality of mind. Are you happy with that Mr Crown?

CROWN PROSECUTOR: Yes, your Honour."

55 Further discussion ensued between the trial Judge and counsel, concerning the history of the Appellant to be elicited in evidence. The sitting day concluded in the following way (T241.7) (emphasis added):

"HIS HONOUR: All right, we have got two issues. The first issue is how we deal with the conviction in terms of 2001 and it seems to me the appropriate course in respect of that is the compromise which has been suggested, namely, that you mentioned manslaughter but the Crown include the verdict was a jury verdict if you like a jury verdict on the basis of substantial impairment by reason of abnormality of mind. That is the first thing.

The second issue relates to the history in between, that is between his release from gaol which was in about 2007 and when he was returned. I think he was return in --

CROWN PROSECUTOR: He was released from parole I think in about 2004 then sent back and not released until about the middle of 2007. That is when Dr Kavanagh takes over his care.

HIS HONOUR: That history also I think is important and in terms of the various opinions that have been expressed during that period then the summary by Dr Allnutt or by Dr Westmore is surely enough. Frankly I think it would be over burdening the jury to go beyond that if you had in mind tendering a lot of other reports or calling other witnesses. Frankly I would have thought that would not really help anyone but you run your own race as far as that is concerned Mr Bonnici.

BONNICI: Thank you your Honour. I do not intend to tender the reports your Honour.

HIS HONOUR: By all means you explore such issues including insanity as you wish.

BONNICI: Thank you your Honour.

HIS HONOUR: Anything else?

CROWN PROSECUTOR: No your Honour."

56 Mr Ramage QC submitted that his Honour's statements in the preceding paragraph constituted the Court's ruling on the objection by defence counsel.

57 On the next day of the trial, Dr Kavanagh gave evidence. The Appellant's manslaughter conviction on the ground of substantial impairment, and his release and breach of parole, were mentioned (T267-268). Under cross-examination, Dr Kavanagh agreed that her report was written "on the basis of the whole history" (T277.37).

58 Defence counsel asked Dr Kavanagh about the Appellant's history and why she had "great fears about him" (T278.28-39):

"Q. Even without those reasons you had great fears about him already?

         A. Absolutely, we all did.

Q. That's why I'm asking why he would have those great fears?

A. Yep. We knew that Mr Potts had a very long history of mental illness. We also knew that he had a very long history of offences against other people. And so we knew that for both of those reasons he was a very high risk. In the past Mr Potts had committed offences, which did seem to be related to his mental illness, but he had also committed offences which did not seem to be related to his mental illness. All we could do from the Mental Health Service was try to reduce the risk that we could and that meant trying to get the best control of his mental illness that we could."

59 Soon after, defence counsel asked Dr Kavanagh (T280.1-13):

"Q. Apart from that episode, because of what you said about medication, certainly if you go back to the charge that was referred to by the Crown about the manslaughter it appears there that there was a finding of substantial impairment?

A. Yes.

Q. From a medical point of view and not from a legal point of view what does that mean?

A. My understanding of it from a medical point of view - and I don't know the legal definition - is that Mr Potts was so affected by his mental illness that he was out of touch with reality and therefore could not be held responsible for his actions."

60 A little later, in cross-examination, Dr Kavanagh was asked (T289.7-25):

"Q. In fact some of the - brought out by you and the other psychologists at the mental health unit at Croydon, had he indicated there were risk of further offences and violence; was there?

A. Absolutely. There have been many offences in the past, yes.

Q. That is directly due to his mental illness, is it not?

A. I couldn't say that all of them were directly due to the mental illness because I only read this in the file. From my understanding of the file, some occasions Mr Potts had committed offences that were not thought to be related to his mental illness, and that's quite relevant to the neighbour because there had been altercation where the neighbour in the past, around Mr Potts repainting the building and playing music too loud. And on one occasion he threatened the neighbour and she was quite justifiably scared of him and he was actually absent without leave from hospital at the time. The police were called he was taken back to the hospital and discharged the next day because they felt he was mentally well. That has to be taken in the context of a man who is never deemed well. It is very difficult to say what he does, that is due to his mental illness, what is due to his underlying personality, what might be due to - because Mr Potts is always pretty much chronically mentally ill."

61 Defence counsel concluded his cross-examination of Dr Kavanagh in the following way (T299.32-41):

"Q. From your opinion, your last opinion, that he suffers from a psychotic illness, namely schizophrenia, that's based on his whole history and also what you have observed from him, is that correct? A. Yes.

Q. But also very much so is what you have read, from what all the other clinical notes have said and also from the behaviour that you have monitored, that's right too, isn't it?

A. Yes, even if I hadn't the read [the] reports he still obviously had schizophrenia."

62 At the conclusion of the evidence of Dr Kavanagh, the trial Judge gave the jury an extensive direction concerning the permissible use of this evidence and a warning against tendency reasoning. His Honour said to the jury (T300-304):

"HIS HONOUR: Members of the jury, we have reached one o'clock, but it's been an unusual morning in terms of evidence. I think it is important that before you depart I give you some preliminary directions about the way in which you should approach this evidence.

You have heard in the course of Dr Kavanagh's evidence that Mr Potts, in the year 2001, was convicted of manslaughter, the victim being his father and convicted on the basis, that is manslaughter on the basis that he was substantially impaired by reason of an abnormality of mind. You can, as I will ultimately explain to you, be convicted of manslaughter upon a number of different bases; indeed some different bases will arise in this trial. But one species of manslaughter is manslaughter by reason of substantial impairment by reason of abnormality of mind. That was the basis upon which Mr Potts was convicted apparently in 2001 in respect to the death of his father.

You also heard that he was then sentenced to a term of imprisonment, granted parole and ultimately I think rearrested for breach of that parole and there was other material which related to condoms and a child and various other matters. He ultimately was required to serve the balance of his sentence and was eventually released on 5 May 2007.

Obviously, you have now been apprised of significant material, which has attached to it significant prejudice. In the ordinary course, in the ordinary trial, a jury is not usually told anything about the past of an accused person. That precisely is because it is likely to be a distraction and likely to be highly prejudicial to their consideration of the particular issues that arise.

In this case, unusually, there is a level of complexity that makes it necessary for you to be told about this. But nonetheless there will be issues that you will have to deal with, including the issue of self-defence in which these matters are completely irrelevant.

You are going to be in a position where it is going to be necessary for you to put these matters out of your mind when you, for instance, apply your mind to the issue of the circumstances in which this young woman met her death and whether or not the Crown has excluded beyond reasonable doubt that it arose in circumstances of self-defence.

You will ultimately be told by me, when I give you the directions in my summing-up, that self-defence if the Crown does not manage to eliminate self-defence then that can operate, subject to one qualification, as a complete answer to the charge. In other words, the appropriate verdict would be not guilty because the Crown would then have failed to prove its case.

There is a qualification to that. I do not know want to confuse you or take unnecessary time now, but we will go into it in due course. There is what is known as excessive self-defence. If it is the case of self-defence, but the person has gone over the top and they have defended themselves too strongly and it is a case of excessive self-defence then the appropriate verdict in that circumstance would not be a complete acquittal, it will be a case of manslaughter. That could be another species of manslaughter.

What I should do before we depart is tell you the way in which you may legitimately use the information you have been given concerning the past of this man and the way in which you must not use it. I think it is important that do it now before we have a weekend.

The only relevance of this material is to the present psychiatric state - or when I say the present the psychiatric state of Malcolm Potts on the evening of 14 September 2008. That is the only relevance of that material.

That is whether at that point he suffered from - and this is one of the species of manslaughter as I say where the appropriate verdict of manslaughter would be open to you if you were persuaded this was the case - that he suffered from an abnormality of mind and that abnormality was present, relevant and operating and it was appropriate to convict him of manslaughter rather than murder or rather acquit him. I am not giving you instructions as to how you should find, I am simply trying to give you instructions as to the way in which this ultimately may be relevant. Ultimately your verdict is entirely a matter for you. That's the only way in which you can ultimately use this material. That is something which is relevant to his psychiatric health on this evening.

Let me tell you now the way in which you cannot use it and must not use it. That is you cannot use it for what is called tendency reasoning. That is to reason that by reason of the fact that he killed someone in the past, therefore he had a tendency to be violent or that he had a tendency to kill people. You cannot use it for that purpose and the Crown does not put it forward on that basis. It would be quite unfair to use it on that basis and indeed a breach of your oath. You must only use it as an appreciation of his psychiatric health on the night.

As a means of understanding that mental condition you are told his complete history because it would be completely artificial to exclude this from your view and your knowledge. You are told that he was diagnosed as a schizophrenic at the age of 18. This happened along the way and other things happened along the way.

Ultimately you will have called before you two eminent forensic psychiatrists, apart from Dr Kavanagh who obviously is highly qualified in the same field, who will be in a position to first of all know this man's psychiatric history because they are familiar with the documents, but also in a position to comment upon the precise circumstances of that evening and whether or not there was an abnormality of mind or some other psychiatric condition.

That broadly is the position. I thought it was important to say that before you depart for the weekend. Before you do so, let me first of all go to counsel and invite their comment.

Mr Crown, first of all, do you have any difficulty with anything I have said?

CROWN PROSECUTOR: No, I don't, your Honour.

HIS HONOUR: Mr Bonnici?

BONNICI: Just one aspect, your Honour, the in self-defence the mental element and the characteristics of the actual individual, particularly in this case, are they totally separate or don't they come into play on the basis of how he perceived it? Your Honour said --

HIS HONOUR: We will debate that in due course.

In my view, the material relating to conviction of this man for manslaughter is utterly irrelevant to self-defence as are the other matters. As to the relevance of the fact that he was a diagnosed schizophrenic, we will debate that in due course.

Is there anything else?

BONNICI: No, that was all, your Honour, just that aspect.

HIS HONOUR: I might say this, just put your minds at rest members of the jury, in due course you will be given, by me, written directions which will identify very precisely in paragraphs the particular elements of the crime of murder. What you have to be satisfied of beyond reasonable doubt before you can return a verdict of guilty of murder or otherwise be obliged to acquit.

Similarly, you will be given written directions as part of the same body of written directions and I will discuss these with counsel before they are distributed to ensure that they conform with their view of the law as well as my own.

HIS HONOUR: Although, ultimately, I am the trial Judge so I have the responsibility, but you will be given the directions which will identify what I anticipate will be three species of manslaughter, one of which I have already identified; that is what is called excessive self-defence. Another one is called unlawful and dangerous act. I won't trouble you with the circumstance with which each of these apply but they will be identified and you will know exactly. The third is what we have been discussing, the reason for introducing this material today, and that is manslaughter by reason of substantial impairment arising from abnormality of mind, that is the third species of manslaughter which may ultimately be relevant to your deliberations.

So you will have a fairly complex task but it will, I hope, be made easier by the precise written directions and by addresses, ultimately, from counsel and summing-up from me."

63 His Honour repeated this warning in an emphatic form in the summing up (SU4-7):

"I should in this context repeat a warning I gave you in the course of this trial. This trial has been unusual in that you have heard aspects of the accused's criminal history, indeed, a deal about the accused. You have heard that in 2000 or thereabouts he was convicted of the manslaughter of his father With whom he had an argument, upon the basis of the jury having determined it was manslaughter by reason of substantial impairment arising from an abnormality of mind. You have also heard that he was sentenced to a term of imprisonment as a result of having been convicted of that offence. More than that, you have heard that, having been released from gaol in 2004 he then breached his parole and the circumstances were described, and I will not repeat them, but he breached his parole and was returned to gaol, he, thereafter, served the balance of his term, being released on 5 May 2007.

You have heard a deal of material which carries with it obvious and significant prejudice. I might say in the usual trial care is taken, indeed one goes to pains to ensure that the jury never knows anything about the background of the accused, and that because this material is so prejudicial. That it is thought to jeopardise the fact finding task which the jury must perform. This trial is unusual in that there is a long history of mental illness. It really would be quite artificial to give you part of that history and not the whole history, to tell you something about his mental illness but not tell you the entire story, lest you be prejudiced against him. You need to have the whole story, just as the psychiatrists who give their opinions about his psychiatric condition have the whole story, in order to understand the depth and breadth of the psychiatric condition from which he has suffered.

This material is, therefore, placed before you but let me repeat the directions I previously gave as to the way in which you may use that material legitimately and the way in which you must not use that material.

The evidence has relevance as part of the history of mental illness and that history may have relevance to his psychiatric state on the morning of these events, the morning of 14 September 2008 and whether or not at that time he was suffering from an abnormality mind which substantially impaired him in his capacity to understand events or differentiate between right and wrong or to control himself. So that is the relevance of that material and that is

the way in which it can legitimately be used.

Let me remind you of the ways in which information may not be used. You must not use this material for what is called tendency reasoning; that is, that he had a tendency to be violent or to act violently, or that he had a tendency to kill people and, therefore, probably murdered Emma King. You must not use it in that way; The Crown does not put that material in that way; it does not suggest any such tendency, so it would be quite illogical and unfair for you to use any aspect of his past other than as an aspect of his psychiatric history.

I repeat: The material has been introduced by the Crown only in order to give you his psychiatric history so that you can understand the depth and breadth of it. It has been going on since the age of 18 when he was first diagnosed and he has been in and out, as I will remind you later, of psychiatric institutions. He has been diagnosed consistently with paranoid schizophrenia.

Having said that, you have also heard it is a condition which, to some degree, waxes and wanes, although I think the evidence was that in the last 10 years or so it has become more chronic, but I will go to the medical evidence later and remind you of it.

When you come to consider the issue of self-defence and whether the Crown has excluded that he was acting in self-defence, the previous conviction for manslaughter has no relevance except as an aspect of his psychiatric history; that is the only way in which you should use it. So that really does just repeat the warning which I gave you at the time this evidence was first introduced. Let me leave that and return to your particular role as the jury in this trial."

Has Error Been Established Under the First Conviction Ground of Appeal?

64 An appropriate starting point is to assess what course defence counsel took at trial on this issue. It is for defence counsel to take the objection at trial, and to maintain it with the trial Judge then ruling on the objection, if the objection is pressed. No ruling was given in this case and defence counsel did not request the trial Judge to give reasons for any suggested ruling allowing the evidence to be given. Counsel did not refer to s.137 Evidence Act 1995, nor were submissions advanced by reference to any authority in that respect.

65 The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20].

66 Section 137 Evidence Act 1995 does not impose an obligation on a trial Judge to reject evidence to which no objection has been taken at trial by defence counsel: R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 652-653 [28]-[30]; Shepherd v R [2011] NSWCCA 245 at [30].

67 If arguments had been pressed of the type advanced in this Court, his Honour would have been called upon to make a decision as to whether the probative value of evidence of the Appellant's prior homicide was outweighed by the danger of unfair prejudice. In Abbosh v R; Bene v R [2011] NSWCCA 265, with the concurrence of Bathurst CJ and James J, I said at [68]-[70]:

"68This Court has observed that s.137 applies where there is a real risk, and not a hypothetical one, of unfairness arising to the accused from the admission of evidence: R v Lisoff [1999] NSWCCA 364 at [60]. The key term in s.137 is 'unfair prejudice', in the sense of evidence creating 'a real risk that the evidence will be misused by the jury in some unfair way': Papakosmas v The Queen at 324-326 [90]-[94]; R v GK [2001] NSWCCA 413; 53 NSWLR 317 at 324 [30].

69This Court should be cautious in approaching grounds of appeal challenging the refusal of trial Judges to exclude evidence under s.137 Evidence Act 1995. It is always necessary to keep in mind the advantage of the trial Judge making such a ruling in the contemporaneous atmosphere of the trial.

70Further, this Court (as a court of error) should bear in mind the limited circumstances in which it may overturn a trial Judge's ruling such as a ruling under s.137 Evidence Act 1995. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way or if the judge misdirected himself: R v O'Donoghue (1998) 34 A Crim R 397 at 401. The submission here is that there was, in reality, only one correct answer to the objection, namely the rejection of the evidence under s.137 Evidence Act 1995. I accept that submission. The decision fell within the final category of error in House v The King [1936] HCA 40; 55 CLR 499 at 505."

68 I accept the Crown submission that a fair reading of the relevant extracts from the transcript indicates that, although there was a preliminary objection made by trial defence counsel, counsel formed the view (in the course of discussion) that there was an advantage in the jury being informed of the prior finding of substantial impairment, so that the objection was not pressed. Had the objection been maintained, it is difficult to understand why trial counsel would not have requested his Honour to give reasons for a decision reached after a fully contested objection. The fact that this did not happen supports the Crown submission that this was a fluid and ongoing discussion, following an initial objection, but with the objection not being pressed because of counsel's assessment of the place of the issue in the trial.

69 In my view, Rule 4 stands in the way of the Appellant. It is necessary for the Appellant to demonstrate that a miscarriage of justice has resulted in order to justify this Court granting leave under Rule 4 to permit this ground of appeal to be advanced: R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24].

70 Even if it is accepted, however, that objection was taken under s.137 and that his Honour's comments at [55] above may be taken as a ruling overruling the objection and allowing the evidence, it would be necessary for this Court to approach the ground of appeal in accordance with the principles stated in the extract from Abbosh v R; Bene v R at [67] above.

71 It is apparent from the discussions that took place (as set out earlier) that his Honour appreciated the unusual features of this trial. Given the issues in the trial, there was no real chance of an outright acquittal. The fact that the Appellant's mental condition was long standing, and had been accepted previously as amounting to substantial impairment was approached by defence counsel as being not unhelpful to the defence in circumstances where his extensive psychiatric history and history of acts of violence was to be before the jury.

72 To the extent that this ground of appeal attracts attention to decisions made by defence counsel during the trial, it is appropriate to refer to relevant principles. Decisions by trial counsel concerning evidence might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 128 [8] (Gleeson CJ). For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered or wise: TKWJ v The Queen at 130 [16] (Gleeson CJ). In the same case, Gleeson CJ said at 131 [16]:

"Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks."

73 In the same case, Hayne J (Gummow J agreeing at 157 [101]) said at 158 [106] (footnotes omitted):

"Account must be taken of the nature of a criminal trial. A criminal trial is not an examination of all the material that exists and bears on the question of an accused's guilt. It is an accusatory and adversarial process in which the prosecution and the defence are responsible for deciding the ground on which the trial will be fought and the evidence that each will lead. That is why the rules about fresh evidence on appeal have developed as they have. And the decisions that are made by the parties about how the trial is to be fought are decisions made on material that may in some respects be incomplete and in other respects turn on questions of professional judgment about which reasonable minds may differ."

74 In Ali v The Queen [2005] HCA 8; 214 ALR 1 at 5 [12], Gleeson CJ said:

"It is not to the point for the appellant to show that in certain respects the trial might have been conducted differently, or that in certain respects it might have been conducted more skilfully. Nor is it sufficient to show that some inadmissible evidence was received."

75 In the same case, Callinan and Heydon JJ said at 22 [99] (footnotes omitted):

"It will frequently be difficult to make a confident judgment, after the event, of the actions taken and decisions made by counsel in the conduct of a long criminal trial before a jury. It is also difficult to make an assessment of the likely impact of them upon the deliberations of the jury. What may now appear obvious with the advantage of hindsight, may at the time have presented an entirely different, and on occasions, insoluble dilemma. Sometimes it may, not imprudently, seem to an advocate, better to abstain from objecting to only marginally or relatively innocuous, or barely credible evidence, even if technically it is inadmissible. Such a stance might be taken for tactical reasons: for example, not to be seen to be objecting to what is obvious, or will be proved by another witness or witnesses anyway, or which, if objected to, might suggest that the accused has something to hide, or might give the impression that counsel and whom he represents are being obstructive. These are tactical decisions, to be made, sometimes intuitively and on the basis of the client's instructions, often upon an impression of a witness necessarily formed hurriedly, and having regard to the fluidity of any trial in which the outcome depends upon viva voce evidence."

76 I am not persuaded that error has been demonstrated in the trial Judge's approach to this evidence at trial. This was an unusual trial and the approach of defence counsel did not involve sustained opposition to the admission of this evidence. Rather, as I have said, the approach of defence counsel involved an acceptance that the better course was to not press the objection.

77 In any event, I observe that it is reasonable to contend that evidence of the Appellant's prior homicide was relevant to the jury's broad function under s.23A(1)(b) Crimes Act 1900.

78 I have mentioned earlier (at [33]-[34]) the value judgment or moral assessment which the jury is to undertake for the purposes of s.23A(1)(b). Opinion evidence is prohibited on this issue. It is for the jury alone to make this assessment of culpability, applying community standards.

79 In this case, it was accepted that the whole history of the Appellant had been taken into account by three psychiatrists, all of whom had assessed or treated the Appellant for a period commencing long before September 2008. It was accepted that the Appellant's history of violence and his associated psychiatric history, would be before the jury. The fact that the Appellant had acted violently towards persons was relevant. There was a great deal to be said for the view that it was preferable for the jury to know the true circumstances of these violent episodes, rather than be left to speculate as to what they may have been. This was the view ultimately adopted by trial defence counsel.

80 The "compromise" reached which saw a limited reference to this matter, associated with a statement that the Appellant had been convicted of manslaughter on the ground of substantial impairment, was seen to be capable of operating favourably to the Appellant. The fact that the Appellant had a prior homicide (with an associated finding of substantial impairment) was not a circumstance extraneous to the jury's broad assessment for the purposes of s.23A(1)(b) of the Act.

81 Any adverse impact flowing from the identification of the fact that the Appellant had committed, in the words of the ground of appeal, "a previous homicide" was ameliorated by the fact that the jury had detailed evidence of the Appellant's psychiatric and personal history, and knowledge that a finding of substantial impairment had been made with respect to him.

82 The fact that it may now be contended, with the benefit of hindsight, that it would have been preferable not to have the Appellant's previous homicide placed before the jury, does not mean that this ground of appeal should be upheld. There were competing views available at the time of the trial, and trial defence counsel settled on an approach which involved a "compromise" (see [55] above).

83 In any event, the trial Judge gave the jury detailed directions during the course of the trial, and again during the summing up, concerning the proper use of this evidence, and directing the jury not to use tendency reasoning with respect to it. In Gilbert v The Queen [2000] HCA 15; 201 CLR 414, McHugh J at 425-426 [31]-[32] said (footnotes omitted):

"[31] The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right ... they have it in their power to do wrong'.

[32] In my respectful opinion, the fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge's directions and that they would have done so even if manslaughter had been left as an issue, as it should have been left. In Spratt, Pidgeon J said, correctly in my opinion, 'that an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict'."

84 This Court should proceed upon the basis that the jury in this case followed the careful directions given twice by the trial Judge concerning use of evidence of the Appellant's prior homicide.

85 I am not satisfied that a miscarriage of justice has occurred in this case. I would refuse the Appellant leave under Rule 4 to rely upon the first ground of appeal. Even if Rule 4 had no application to this ground, I would, in any event, reject the ground of appeal.

86 I should note a further submission of the Crown concerning this ground. If error was established in accordance with Conviction Ground 1, the Crown submitted that there had been no substantial miscarriage of justice so that the Court should apply the proviso under s.6(1) Criminal Appeal Act 1912. If this point had been reached on the appeal, I would have applied the proviso. If evidence of the Appellant's previous homicide was disregarded, I would nevertheless be satisfied beyond reasonable doubt, on the evidence properly admitted at the trial, that the Appellant was guilty of murder: RWB v R [2010] NSWCCA 147; 202 A Crim R 209 at 227-229 [129]-[143]. More particularly, I would be satisfied that the admission of evidence of the previous homicide did not impact on a correct verdict. The examination of evidence adduced at the trial, undertaken for the purposes of Conviction Ground 2, will serve to explain my conclusion concerning the proviso as well.

Conviction Ground 2 - The Jury Verdict was Unreasonable

Submissions

87 Mr Ramage QC submits that the verdict of guilty of murder was unreasonable in this case. He submitted that there was clear evidence that the Appellant had been diagnosed with paranoid schizophrenia for many years and that, in the weeks leading up to 14 September 2008, the evidence from various neighbours was that the Appellant looked particularly unwell and was behaving in strange ways. He pointed to the fact that the expert evidence was that the Appellant had in his blood stream less than the therapeutic dose of the antipsychotic medication which he was meant to be taking in September 2008.

88 Mr Ramage QC sought to rely, as well, upon the comment of the trial Judge made during the course of the trial, and in the absence of the jury, "I imagine, that the most likely outcome overwhelmingly is manslaughter" (T239.7 set out at [54] above).

89 The Crown submitted that it was open to the jury to reject the partial defence of substantial impairment in the circumstances of this case. Reference was made to the evidence of the three psychiatrists who had given evidence before the jury in this respect. Further, the Crown submitted that the Appellant derived no assistance on this ground from the trial Judge's comment made (in the absence of the jury) before evidence had been given by the Appellant, Dr Allnutt and Dr Westmore.

 

Decision

90 In determining a ground of appeal which asserts, for the purpose of s.6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606.

91 The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of murder: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 243 CLR 400 at 405-406 [11]-[14], 408-409 [20]-[22].

92 In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R [2009] NSWCCA 202 at [29].

93 In some cases, the fact that the Court of Criminal Appeal has not seen or heard the witnesses at trial may have a bearing on the outcome of an appeal on an unreasonable verdict ground. In M v The Queen, Mason CJ, Deane, Dawson Toohey JJ said at 494-495:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

94 There is an unusual feature to this ground in the present appeal.

95 The Appellant contends, in effect, that this Court should quash the conviction for murder upon the basis that a verdict of guilty of manslaughter by reason of substantial impairment ought be substituted. Although the written submissions for the Appellant contended that a retrial should be ordered, it is difficult to see how such a result would arise if Conviction Ground 2 was upheld. The focus of the submissions for the Appellant on this ground was that the Appellant ought be acquitted of murder upon the substantial impairment issue, a necessary consequence of which would be conviction for manslaughter.

96 The Crown submitted, correctly, that if the second conviction ground was made good, the appropriate order would be a substituted verdict of manslaughter under s.7(2) Criminal Appeal Act 1912.

97 In considering this ground of appeal, it is necessary to bear in mind that the Appellant bore the onus of proof at trial, on the balance of probabilities, to establish the partial defence of substantial impairment. This is not a case where this Court is exercising its appellate function upon issues where the Crown bore the onus of proof, beyond reasonable doubt, on all issues. There is no reason in principle why an unreasonable verdict ground cannot apply to a case where the Appellant bore the onus of proof at trial, on the balance of probabilities, to establish the partial defence of substantial impairment: R v Welsh (1996) 90 A Crim R 364 at 373-374.

98 Here, there was no dispute that it was the Appellant who had killed the deceased. The presently relevant question at trial was whether the Appellant had established, on the civil standard, that a finding of substantial impairment should be made leading to a conviction for manslaughter.

99 Importantly, the Appellant gave evidence at trial and the jury had the advantage of seeing and hearing him give evidence, a factor which is relevant to determination of this ground of appeal. There was a challenge to the Appellant's credibility, including a challenge to his crucial evidence of hearing "voices" before the killing, an account not given by the Appellant until his evidence before the jury.

100 All three psychiatrists had professional dealings with the Appellant prior to the tragic events of 14 September 2008. Dr Kavanagh first treated the Appellant in 2007, Dr Allnutt had assessed him in 2006 and Dr Westmore had assessed him in 2001. Additionally, consultation notes of another psychiatrist, Dr David Greenberg, made on 15 September 2008 were tendered in evidence (Exhibit 2).

101 Prior to the commencement of the trial, there was no expert evidence supportive of a partial defence of substantial impairment. Although Dr Allnutt and Dr Westmore had examined the Appellant, neither expressed an opinion supportive of substantial impairment.

102 Dr Kavanagh had given evidence in the Crown case. Although Dr Kavanagh referred to the Appellant's long-term mental health issues, she said (T278.34):

"In the past Mr Potts has committed offences, which did seem to be related to his mental illness, but he had also committed offences which did not seem to be related to his mental illness."

103 Dr Kavanagh was asked questions concerning the notes taken by Dr Greenberg on 15 September 2008. She remarked that Dr Greenberg's observations could be due to the Appellant being unwell, or they could be due to him being angry with the situation, his personality or being remorseful in understanding the seriousness of the situation (T284-287, T300). Under cross-examination, Dr Kavanagh raised the question whether the Appellant's antisocial personality traits were separate from his mental illness (T295.46-296.1):

"Q. Tendency, what about in relation to tendency to impulsive behaviour, easily angered when he is frustrated?

A. Yes. But that is not necessarily linked to the mental illness. So there is also the question of, the question raised in the past as to whether or not Mr Potts has antisocial personality traits, and that is apart from the question of his mental illness."

104 A critical piece of evidence on the substantial impairment issue was the Appellant's evidence that he heard voices shortly prior to the killing. Until this evidence had been given, Dr Allnutt's opinion did not support substantial impairment. Although the evidence of the forensic psychiatrists agreed that the Appellant suffered from a psychiatric illness at the time of the killing (paranoid schizophrenia), until the Appellant asserted that he heard voices, neither psychiatrist linked the mental disorder to the killing. On the assumption that the Appellant did hear voices at the relevant time, Dr Allnutt opined that the relevant link existed. Dr Westmore expressed the opinion that, even if the Appellant did hear voices at the time, an examination of the Appellant's complete account of events in the apartment did not support a causal link between the illness and the killing.

105 Accordingly, there was a significant factual issue at the threshold of the substantial impairment question, as to which the Appellant bore the onus of proof on the civil standard.

106 It was necessary for the jury to be satisfied of the matters in s.23A(1)(a) before the value judgment or moral assessment was required to be undertaken by the jury for the purposes of s.23A(1)(b) of the Act.

107 The Appellant gave evidence at trial indicating that, on 14 September 2008, he had heard a voice whilst in the kitchen of the Ashfield unit tell him to "be careful of her [the deceased]" (T371.46). In cross-examination, the Appellant said that the words were "be careful of her and her friends", although he then retracted that version (T386.12). He also gave evidence that, earlier on the night before meeting the deceased, he had heard his name in police or ambulance sirens (T376.5).

108 Other than reporting those words for the first time in evidence, the Appellant maintained that he had acted (in self defence) in response to the deceased producing a knife, and out of fear for his safety. He said that he had not previously told doctors of the voice to avoid being classified as a forensic patient (T376.15).

109 It was this evidence of auditory hallucinations, advanced for the first time by the Appellant in the witness box, which led to expert opinion supportive of substantial impairment.

110 Dr Allnutt then gave evidence in the defence case that, if it were accepted that the Appellant had auditory hallucinations, that would be supportive of a relevant abnormality of mind for the purposes of the partial defence of substantial impairment. It was Dr Allnutt's opinion that the auditory hallucinations (if they occurred) constituted the nexus between the Appellant's psychosis and the victim (T437-438, 451-452).

111 Dr Westmore had first spoken to the Appellant in February 2001 in relation to the killing of the Appellant's father. He examined the Appellant in 2010 in advance of the trial, and had also undertaken a document review.

112 Dr Westmore considered that the Appellant had a mental illness at the time of the killing in September 2008, with the history suggesting a treatment-resistant condition. The blood level of antipsychotic drugs in the Appellant's system indicated to Dr Westmore that it was either untreated or treatment resistant (T477). When Dr Westmore examined the Appellant, he provided a non-psychotic explanation in relation to the events which led to the homicide. Dr Westmore was aware of the Appellant's account that he had heard voices, but this did not change his opinion. He had also had an opportunity to read Dr Allnutt's evidence, and there was nothing in his evidence that changed his opinion.

113 During the course of cross-examination, Dr Westmore was asked by the trial Judge (T482.43-483.20):

"Q. If you assume that he in fact heard the voice saying the words that he gave, and that he had a conversation with the deceased in which she told him the various things which you read in the transcript yesterday, about people coming to assist her and take his property and recompense for the trouble she had been put to, what comment, if any, do you have on that?

A. If the history, your Honour, was that he developed beliefs about the deceased rather than his actual history, then my view about, my conclusive view would be different. But he doesn't say he believed that. He doesn't say that he felt she was going to attack him. He says that she picked up a knife, threatened him and he felt threatened and he responded to that. Now, if I accept his history, that is not delusional; that is what occurred. So that occurred in the absence of his mental illness and not in the absence of it, but was not influenced by his mental illness. He said she responded in a certain way and he behaved in a certain way because of that; that is not linked to his mental illness; that is him reacting to an event which occurred in his home.

BONNICI: Q. That is accepting of course it even happened that way?

A. Correct.

Q. Apart from him saying so, and bearing in mind his medication, bearing in mind his voice and all those other factors, how could you possibly make that assessment only on what he says, bearing in mind, too, the aftermath of what he believed was going to happen to him; I am asking the question, generally?

A. Yes. There was no ambiguity on his account, either to me or in his evidence yesterday. He gave quite a clear account of what he said occurred. There is no uncertainty in his account. Therefore, I am reliant on that."

114 Dr Westmore returned to this issue later in cross-examination (T492.3-43):

"However, if we accept the history that he gives that she picked up the knife, she threatened him and he felt threatened then that has occurred independent of his mental illness. It's, as I said before, if he said she was drinking coke, I believed without any reason, I believed, that she was going to attack me and her accomplices were going to, that will change everything because it would be based on a belief without any evidence. Without any precipitance. But he gives quite a different history. He said what I stated. He responded to that in a way that an ordinary person might respond to it. In other words, somebody without a mental illness might respond to it. They would disarm the threatening person. They would jump on top of them. They would try to get the weapon away and some people might stab their attacker.

BONNICI: Q. But would you describe him as an ordinary person?

A. No the point I was making is that people without a mental illness might respond in such a way and people with a mental illness might respond in such a way independently of their mental illness.

...

Q. You're saying that because an ordinary person might react that way?

A. Yes.

Q. And therefore Mr Potts has reacted that way, then regardless of all the things that Mr Potts suffers from, are you basing your opinion on that equation?

A. What I'm saying is what I said before but in a different way, people with a mental illness sometimes commit offences in the context of their mental illnesses, but people with mental illnesses can also commit offences separate and independently from their mental illness. And based on his history that's what I believed occurred in this particular case.

Q. As I understand when you talk about his history it's part of his history that led you to be believe he was mentally ill at the time?

A. That's correct, but his account of the incident, which is what we are here for today is not psychotic. It's a non-psychotic explanation for what he did."

115 Dr Westmore also observed that there was "no obvious link in his account and his mental illness" (T493.12). He said "I have agreed that he was mentally ill at the time on the balance of probability, but we are still looking for some link and he needs to give us the history that will enable us to build the bridge between his mental illness and the offence" (T493.34).

116 I have had regard, as no doubt did the jury, to the evidence that the Appellant had apparently taken less than the recommended therapeutic dose of his antipsychotic medication as at 14 September 2008. The primary issue was whether the requisite nexus had been demonstrated between the Appellant's condition and his offending behaviour.

117 I accept the Crown submission that the jury was well informed as to the Appellant's mental health history, and were well assisted by psychiatric opinion as to whether there was a causal link between the offending and any abnormality of mind.

118 The jury were comprehensively and appropriately directed on the partial defence of substantial impairment, in a manner not challenged on appeal (SU61-86). The expert evidence was summarised in detail by the trial Judge during the summing up (SU74-86).

119 It was clearly open to the jury on the evidence not to be satisfied, on the balance of probabilities, that there was a causal link between the Appellant's offending conduct and any abnormality of mind.

120 This conclusion was available on different bases:

(a)if the jury did not accept, on the balance of probabilities, the Appellant's evidence that he heard voices before the homicide, or

(b)even if the jury believed that evidence, they accepted the evidence of Dr Westmore, and not Dr Allnutt, concerning the relevance of the voices and the absence of a causal nexus.

121 The s.23A issue can be resolved adversely to the Appellant without reaching the s.23A(1)(b) element. Viewed in this way, any concerns raised on the Appellant's behalf under Conviction Ground 1 would have no practical operation. Even if the jury accepted that the Appellant heard voices before the homicide, it was open to the jury to find the analysis of Dr Westmore more persuasive, so that the Appellant would fail on the first element in s.23A(1)(a) of the Act.

122 I do not think that the Appellant's arguments in support of this ground of appeal are assisted by reference to the trial Judge's comment made during the trial, and before the Appellant and the psychiatrists had given evidence (see [54] above). This Court should not exercise its appellate function under s.6(1) Criminal Appeal Act 1912 by reference to a comment made by the trial Judge at an early stage of the trial, and before the relevant body of evidence had been given in the presence of the jury: cf R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32].

123 Having undertaken an independent assessment of the evidence adduced at the trial, and taking into account the fact that this Court has not observed the witnesses (in particular, the Appellant) give evidence, I am satisfied that, applying the relevant test, it was open on the evidence to the jury not to find, on the balance of probabilities, that the Appellant was substantially impaired. I express the view that I am not satisfied, on the balance of probabilities, that the Appellant has made out the elements of substantial impairment under s.23A Crimes Act 1900 so as to warrant a verdict of guilty of manslaughter. I have no doubt that the Appellant was rightly convicted of murder.

124 I would reject the second conviction ground of appeal.

Sentence Ground 1 - The Mental Illness Issues

Submissions

125 Mr Ramage QC submitted that the sentencing Judge had failed to take into account on sentence the fact that the Appellant's mental illness rendered him an inappropriate vehicle for general deterrence, and the fact that a custodial sentence would weigh more heavily on him, so that this factor ought operate to reduce the otherwise appropriate sentence. Reference was made to the line of authority summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]-[178].

126 It was submitted that the Appellant clearly suffered from a long-standing mental illness, but that the sentencing Judge had failed to take this factor into account, in the ways referred to in this ground of appeal.

127 The Crown submitted that the Appellant's mental illness permeated the remarks on sentence, and that his Honour was clearly cognisant of relevant considerations concerning the impact of mental illness on sentence. The Crown submitted that the sentencing Judge had proper regard to relevant sentencing principles in taking into account the relevance of the Appellant's mental illness on sentence. Although the sentencing Judge approached the question of sentence with an expectation that the Appellant would be assessed after sentence and almost certainly made a forensic patient, there was no evidence to establish that the Appellant's conditions of confinement would be any different to those which he has experienced, or is likely to experience, in the balance of his sentence.

128 The Crown submitted that no error had been demonstrated in the exercise of sentencing discretion in accordance with the first sentencing ground of appeal.

Decision

129 The submissions for the Appellant in support of this ground of appeal carry with them the expectation that automatic consequences will follow on sentence where an offender suffers from a mental disorder. This proposition is not correct.

130 The observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68 have particular application to the circumstance of the present case:

"Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decisions. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as follows: 'protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform'.

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen No 2. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."

131 The sentencing Judge in this case was very much alive to the relevance of the Appellant's mental illness to sentence. His Honour made detailed findings of fact with respect to the offence (at [9]-[29]). His Honour then turned to the characterisation of the offence of murder in this case. Reference was made (at [30]-[31]) to the competing submissions.

132 It is important to keep in mind that the Crown submission on sentence before Kirby J was that a sentence of life imprisonment should be imposed in this case under s.61(1) Crimes (Sentencing Procedure) Act 1999. Defence counsel responded that mental illness was relevant to sentence, and that it was appropriate to characterise the offence as just below or at the mid-range of seriousness.

133 Before characterising the offence, his Honour summarised the psychiatric and social history of the Appellant, and referred to the opinions of the forensic psychiatrists who gave evidence at trial (at [32]-[41]).

134 Having undertaken that analysis, his Honour turned to the conclusions to be reached on the mental illness issue in light of the psychiatric evidence. After referring to the evidence of the psychiatrists, Kirby J concluded that the Appellant was "significantly impaired". His Honour continued at [44]-[46]:

"44That impairment was especially important in the lead up to the fight and his perception of whether he was under threat from Ms King and her friends. His response to that perception, however, owed as much to his aggressive personality as his impairment.

45Returning to the issue of the characterisation of the offence. The objective circumstances were extremely grave. Mr Potts overpowered and disarmed his much smaller victim. While she was face down, and pinned to the floor by his considerable body weight, he stabbed her twice in the back. One wound penetrated 33 cm, passing through vital organs. One would infer an intention to kill. She having died, he then undressed her and had sexual intercourse with her.

46What, then, can be said in mitigation? The crime was certainly unplanned. It evolved out of their interaction in his flat. I accept that Mr Potts' actions were impulsive and the result of decisions made when things were happening fast. But, it was a brutal crime. Nonetheless, the presence of circumstances of mitigation and especially the impairment of Mr Potts, take the matter out of the worst class of case (cf R v Garforth (supra)). A mandatory life sentence is therefore not appropriate."

135 Accordingly, it may be seen that the Appellant's mental health issues had been taken into account by the sentencing Judge in reaching a conclusion that a life sentence was not appropriate.

136 As in R v Fraser [2005] NSWCCA 77 at [24]-[25], a diminution in the extent of the Appellant's culpability for murder, by reason of his mental state, was not incompatible with the jury verdict that the mental state, as assessed by them, did not reduce culpability from murder to the lesser crime of manslaughter.

137 Where factors have been taken into account in an offender's favour to assist a finding that a life sentence under s.61 is not appropriate, the Court has said that care should be taken not to double count those factors again in the offender's favour on sentence: R v Lo [2003] NSWCCA 313 at [1], [31]-[32]; R v Fraser at [44]; Ta'ala v R [2008] NSWCCA 132 at [30]-[34]. In the present case, a further finding which mitigated penalty by reference to the Appellant's history of mental illness (and its consequences) would run the risk of unwarranted double counting on sentence in the Appellant's favour.

138 Thereafter, Kirby J turned to other sentencing considerations, including the protection of the community and the issue of dangerousness. After reference was made to relevant authorities, his Honour observed (at [51]-[54]) that the Appellant had been assessed on his release from gaol in 2006 as being a higher risk for future offending, a forecast which his Honour observed "regrettably proved to be accurate".

139 Reference was made to the opinions of Dr Westmore and Dr Greenberg that the Appellant constituted an "extremely high" risk of further violent offending, with Dr Allnutt expressing the opinion that the Appellant represented a "high risk of further violent crimes". His Honour accepted this evidence and found that there was no question that the Appellant represented a high risk of further violent crime.

140 In view of opinions expressed by a number of the psychiatrists in the sentencing proceedings, his Honour observed (at [55]) that the Appellant would almost certainly be made a forensic patient, where he would receive appropriate treatment.

141 The fact that an assessment of the Appellant as a forensic patient did not come to pass was the subject of an application for leave to add a further ground of appeal against sentence. The Court determined that leave ought not be granted to rely upon this ground, for reasons which will appear later in this judgment. The present ground of appeal is to be determined by reference to the complaints contained within that ground.

142 It is important to keep in mind that the primary issue to be determined on sentence in this case was whether a sentence of life imprisonment should be imposed in accordance with s.61(1) Crimes (Sentencing Procedure) Act 1999. Such a sentence is to be imposed "if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence".

143 His Honour determined that such a sentence should not be imposed in this case. In reaching this view, reliance was placed upon the evidence of the Appellant's history of mental illness.

144 No submission was made at the sentencing hearing before Kirby J that less weight should be given to general deterrence because of the Appellant's history of mental illness. It is clear, however, that his Honour was alive to the various factors which may (but not must) be taken into account on sentence of an offender with a history of mental illness.

145 Even if the issue had been expressly submitted to the sentencing Judge, it is apparent that a finding of mental illness does not lead to an automatic reduction in the weight to be given to general deterrence in a particular case: R v Wright (1997) 93 A Crim R 48 at 51-52; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at 198-200 [109]-[115].

146 To my mind, no error has been demonstrated in accordance with Sentence Ground 1(i).

147 Nor, in my view, has error been demonstrated as alleged in Sentence Ground 1(ii). No specific submission was made at the sentencing hearing that any sentence would weigh more heavily upon the Appellant because of his history of mental illness. The most favourable approach for the Appellant on this issue is that, given the indications of the psychiatrists in reports before the sentencing Judge, there was a strong prospect that the Appellant would be assessed as a forensic patient.

148 It should be observed, however, that the Appellant was not capable of falling within the definition of "forensic patient" in s.42 Mental Health (Forensic Provisions) Act 1990. The Appellant had been convicted of murder and was to be sentenced for that crime. At best, the Appellant could, if a relevant order was made, fall within the definition of "correctional patient" under s.41(1) of that Act. For that to happen, it would be necessary for the Appellant to be assessed, and made the subject of an order that he be transferred from a correctional centre to a mental health facility under s.55 Mental Health (Forensic Provisions) Act 1990. Accordingly, the concept of "forensic patient" was and remains irrelevant to this case.

149 No evidence was adduced at the sentencing hearing which would permit a finding that the Appellant would find custody more onerous because of his mental illness: cf R v Mostyn [2004] NSWCCA 97 at [179]-[180]; R v Ah-See [2004] NSWCCA 202 at [26]-[28].

150 Critically, Justice Health is a statutory health corporation with functions including the provision of health services to offenders and persons in custody: s.236A Crimes (Administration of Sentences) Act 1999; R v Achurch [2011] NSWCCA 186 at [125]-[126]. An offender's illness is relevant to the question of sentence, but it does not operate automatically to reduce sentence: R v Wickham [2004] NSWCCA 193 at [18]; R v Achurch at [117]ff.

151 Further, the Appellant was and remains dangerous so that this consideration may overshadow, if not overwhelm, other factors of a generally mitigating type which arise on sentence for an offender with a history of mental illness: Rigby v R [2006] NSWCCA 205 at [74]-[77]; R v Hamid at 200-202 [117]-[123].

152 I would reject the first ground of appeal on sentence.

Sentence Ground 2 - The Claim of Manifest Excess

Submissions

153 Mr Ramage QC submitted that the sentence imposed upon the Appellant was manifestly excessive. He relied upon the finding of the sentencing Judge that the Appellant was "significantly impaired" by virtue of his mental illness. In light of this finding, and the evidence of the Appellant's history of mental illness, it was submitted that the sentence imposed was manifestly excessive.

154 The Crown submitted that the sentence was clearly open to the sentencing Judge and that manifest excess had not been demonstrated.

Decision

155 To establish a ground claiming manifest excess, it is necessary for the Appellant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]-[29].

156 His Honour made careful findings concerning the objective gravity of the Appellant's crime, with those findings not being challenged on appeal to this Court.

157 The Appellant was subject to conditional liberty at the time of the offence, with two good behaviour bonds for offences of assault and larceny imposed on 1 April 2008 being current. Further, the Appellant's conduct in having sexual intercourse with the deceased after killing her did not assist the Appellant on sentence: Director of Public Prosecutions v England [1999] VSCA 95; [1999] 2 VR 258; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].

158 Although accepting that the Appellant's mental illness was relevant to his understanding of the events, the sentencing Judge found (at [44]) that the Appellant's conduct owed as much to his aggressive personality as to his impairment.

159 In the circumstances of this case, a most significant factor on sentence was the protection of the community. The Appellant had stabbed his father to death in a frenzied attack in 2000. Despite very substantial treatment measures being taken with respect to the Appellant both in custody and upon his return to the community, he demonstrated an ongoing pattern of violent conduct. Despite being subject to medical treatment within the community, including the prescription of antipsychotic medication, the Appellant killed again in September 2008.

160 At the age of 40 years, he had killed twice and the psychiatric evidence was to the effect that he was a high or extremely high risk of further violent conduct.

161 In 2001, clearly by reference to evidence then before the Court, Hidden J said that he did "not think that [the Appellant] is a continuing danger to society" with the crime arising "from his relationship with his father and I think it unlikely that he would re-offend in such a violent manner": R v Potts [2001] NSWSC 753 at [8]. It was emphasised that the Appellant should "comply with an appropriate regime of treatment and avoid drug abuse" (at [8]).

162 As with Mr Veen, doubt as to the Appellant's future dangerousness was "dramatically dispelled" by the killing on 14 September 2008: Veen v The Queen [No. 2] at 478.

163 Even before then, the Appellant had displayed, from 2004, a propensity for violent conduct despite intensive efforts at psychiatric treatment. The Appellant was "treatment-resistant", and he killed again in September 2008.

164 In several respects, the Appellant's circumstances are closely aligned to those of Mr Veen. In a much-cited passage which resonates in this case, Mason CJ, Brennan, Dawson and Toohey JJ said in Veen v The Queen [No. 2] at 476-477:

"...sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality. In Veen (No 1) Murphy J alone thought it 'a distortion of the criminal law to sentence people to longer terms because they ... have diminished responsibility'. As Baroness Wootton points out, if that approach were adopted in culpable homicide the legally insane would be detained indefinitely, those whose responsibility was severely diminished would be released in the shortest time even though they were a grave danger to society, and those whose responsibility was diminished to a lesser extent would be longest detained even though their release would pose little danger to society. Such a theory of sentencing would prove adventitious in practice and destructive of public confidence in the processes of criminal justice. In this case, Hunt J took into account the relevant purposes of criminal punishment in determining the sentence to be imposed. He was entitled to attach great weight to the protection of society as a factor in that determination."

165 Kirby J applied similar reasoning in this case. No error has been identified in this respect.

166 This is not a case where, at the time of sentence by Kirby J, there was room for debate concerning the future dangerousness of the Appellant.

167 In Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575, Gleeson CJ observed at 589-590 [12]:

"No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release."

168 A sentencing Judge is entitled to take the circumstances of the offence into account, together with the offender's prior history, in determining the question of future dangerousness. In R v Garforth (NSWCCA, 23 May 1994, unreported), the Court (Gleeson CJ, McInerney and Mathews JJ) said:

"We return to the concepts of dangerousness and rehabilitation. It is now well settled that the protection of society - and hence the potential dangerousness of the offender - is a relevant matter on sentence. (Veen v The Queen (No 2) (1988) 164 CLR 465). This factor cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. But it can be used to offset a potentially mitigating feature of the case, such as the offender's mental condition, which might otherwise have led to a reduction of penalty."

169 As the sentencing Judge concluded, this was a case where these principles had direct application. In my view, far from the sentence imposed upon the Appellant being manifestly excessive, the sentence constituted a measured and restrained sentencing response to the Appellant's most serious crime and his dangerousness, so that the protection of the community became a most important factor on sentence.

170 This ground of appeal has not been made good.

Application for Leave to Add a Sentence Ground of Appeal at the Hearing

171 At the hearing of the appeal, Mr Ramage QC sought leave to add a further ground of appeal on sentence, which contended that the sentencing process had miscarried by reason of the sentencing Judge being misled concerning the likely assessment of the Appellant as a forensic patient whilst in custody.

172 Mr Ramage QC sought to read the affidavit of his instructing solicitor, Peter Richard Baker, sworn 13 March 2012. This affidavit appeared to assert, on a hearsay basis sourced to the Appellant, the fact that the Appellant had received limited treatment whilst in custody, and that he was presently housed at the Goulburn Correctional Centre. The affidavit was said to go to the issue of what had happened to the Appellant since he had been sentenced on 23 July 2010 and, in particular, what medical and psychiatric treatment he had or had not received in custody.

173 The Crown objected to this affidavit being read upon the basis that it constituted fresh evidence. In the event that the affidavit of Mr Baker was allowed, the Crown sought to read an affidavit of Miriam Rottenberg affirmed 15 March 2012 concerning the Appellant's custodial and treatment status.

174 After some discussion with counsel, Mr Ramage QC sought leave to add the ground of appeal referred to above. After consideration, the Court announced that leave to rely upon the further ground of appeal was refused and that reasons for this decision would be contained in the judgment on the appeal.

175 In the circumstances, the Court did make a recommendation that, in the event that it had not already occurred, the Appellant should be examined for the purpose of determining whether transfer from a correctional centre to a mental health facility was appropriate under s.55 Mental Health (Forensic Provisions) Act 1990.

176 The reason for the Court refusing leave to add this ground may be stated shortly. This Court is a court of error. If relevant error is established, then the Court will consider whether a lesser sentence is warranted in law and should have been passed for the purpose of s.6(3) Criminal Appeal Act 1912. If error is demonstrated, the Court may have regard to additional evidence, including evidence of conduct since the imposition of sentence for the purpose of forming an opinion under s.6(3): Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at 286-287 [10]-[19], 299 [85]; Norrie v R [2008] NSWCCA 185 at [9]-[12].

177 The circumstances in which evidence of events which have occurred after the imposition of sentence may be received by this Court, if error has not otherwise been established, are confined: Norrie v R at [15]-[22].

178 As mentioned earlier, the Appellant was not legally capable of being classified as a "forensic patient". At best, if so assessed, he could be determined to be a "correctional patient" for the purpose of s.55 Mental Health (Forensic Provisions) Act 1990.

179 The material sought to be adduced in support of the application to add the ground of appeal suggested that the Appellant had not been so assessed to date in custody. There was some material which sought to explain what had happened, and what was intended to be done with the Appellant in custody.

180 The Court took the view that the Appellant's case, at the highest, involved a submission that he had not been treated as a patient in custody, but as a prisoner held in a mainstream prison. There was no evidence before Kirby J concerning the qualitative difference between different forms of custody in this respect.

181 At its highest, the Appellant's argument would be that from the time of his sentencing in July 2010 until the hearing of this appeal in March 2012, he had not been housed in a manner which it seems the sentencing Judge anticipated.

182 It is the case that the Appellant was capable of being assessed under s.55 of the Act at any time. Pursuant to this Court's recommendation, it may have happened already. Whether the Appellant was transferred under that section, of course, would be a matter entirely for the relevant medical and custodial authorities.

183 The point, however, is that this is not a situation where the evidence demonstrates greater hardship for the Appellant in custody because of his mental illness. The form of custody to which he is subject will likely change from time to time, depending upon the facility in which he is housed.

184 All of this led the Court to conclude that leave to add this ground of appeal should be refused. It was and remains a matter for the relevant authorities, Justice Health and the Commissioner of Corrective Services, to determine the place of custody for the Appellant from time to time during his sentence.

 

Conclusion

185 The Appellant has failed to make good his challenge to conviction. Further, his grounds of appeal against sentence ought be rejected.

186 Even if some error had been demonstrated in accordance with Sentence Ground 1 (and it has not), I would not have been satisfied, in any event, that a lesser sentence was warranted for the purposes of s.6(3) Criminal Appeal Act 1912.

187 I propose the following orders:

(a)appeal against conviction dismissed;

(b)grant leave to appeal against sentence, but appeal dismissed.

188 FULLERTON J: I also agree with Johnson J's disposition of the appeal against conviction and his Honour's analysis of the issues raised by the appeal. I also agree that the application for leave to appeal against sentence should be granted and the appeal dismissed.

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Decision last updated: 09 November 2012