Adanguidi v R

1. [1]

   THE COURT: On 14 April 2005, after a trial before a jury at which Barr J presided, the appellant, Crespin Adanguidi, was found guilty of three counts of murder, which occurred in the early hours of 1 February 2003.

2. [2]

   The victims of the murders were a mother, Shiquin Zhu (“Mrs Shen”), and her children Pin Shen, a 27 year old male, and Christy Bo Shen, a 23 year old female. The three victims were respectively the wife and two children of Mr Raymond Shen, who was known to the appellant.

The Appeal

1. [3]

   This appeal comes before the Court as a result of a decision of Dhanji J on 14 April 2022.

2. [4]

   The decision of Dhanji J (in Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442) dealt with an application by the appellant pursuant to s 78 of the Crimes (Appeal and Review) Act 2001.

3. [5]

   Having received the application pursuant to that section, and having considered the submissions of the appellant and the Attorney-General of NSW, his Honour made the following relevant orders:

4. [6]

   The hearing of the appeal took place over a number of days in May 2023. The Court heard evidence from Dr Olav Nielssen, Dr Matthew Large and Professor David Greenberg on the basis that the Court would find that such evidence was fresh evidence, or new evidence, which was permissible for it to consider and deal with on the appeal.

5. [7]

   The Court deferred ruling on the question of whether the evidence was either fresh or new until after it had heard all of the evidence and taken submissions from the parties.

6. [8]

   Before coming to consider the evidence led before it, it is appropriate that the Court identify the principles by which appeals are conducted when it is said that fresh or new evidence ought to be admitted.

Fresh or New Evidence on Appeal – Legal Principles

1. [9]

   Recently, this Court considered a question similar to that posed in this appeal. In EC (a pseudonym) v R [2023] NSWCCA 66, Mitchelmore JA (with whom Button and Wright JJ agreed) said:

2. [10]

   The principles have also been helpfully summarised by Kirby J (with whom Mason P and Levine J agreed) in R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417. Kirby J derived the principles from Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518‑520, per Barwick CJ; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659; at 674‑675 per Mason J; and R v Bikic [2002] NSWCCA 227 at [241]-[283].

3. [11]

   In Abou-Chabake at [63], Kirby J said:

4. [12]

   It is clear that any analysis and construction of the further evidence must be in the context of the evidence at the trial.

5. [13]

   Evidence is not “fresh” but is merely “new” if it was available to be adduced at trial, either actually or constructively, but was not adduced.

6. [14]

   In the present case, the appellant seeks an order that his conviction be quashed, thus engaging an inquiry as to whether any of the additional evidence, whether new or fresh, is of such cogency as to demonstrate a reasonable doubt about his guilt. Kirby J summarised this situation in the fifth of the principles that he extracted from the authorities, as set out above.

7. [15]

   In the present appeal the question would be whether the additional evidence is of such cogency as to satisfy this Court that the appellant is entitled to more favourable verdicts, either special verdicts or verdicts of guilty of manslaughter only, on each count. If the additional evidence is not of such cogency as to satisfy this Court that it should now substitute one or other of those more favourable verdicts in respect of each charge, then:

   1. (1)

      if the evidence is (i) fresh and “credible” or at least capable of belief or “plausible” and (ii) there is a significant possibility that the jury acting reasonably would have delivered one of the more favourable verdicts had it received the evidence, a new trial should be ordered; or

   2. (2)

      if the evidence is merely new, the appeal on the conviction ground would be dismissed (R v Abou-Chabake at [63], sixth principle; Xie v R [2021] NSWCCA 1 at [433]-[444]).

8. [16]

   Before embarking upon an examination of the evidence at the trial and on the appeal, it is appropriate to draw attention to the grounds of appeal in this Court.

Grounds of Appeal

1. [17]

   They are:

2. [18]

   It is appropriate to note here that the Crown, the respondent to this appeal, contested the appeal on the basis that the appellant had not established that any miscarriage of justice had occurred at trial, or on sentence as a consequence of the absence of any relevant psychiatric evidence, and in particular in the absence of the psychiatric evidence adduced on the appeal.

The Appellant’s Trial and First Appeal

1. [19]

   It is convenient to the consider the course of the trial.

2. [20]

   The trial took place over 17 days between 29 March 2005 and 14 April 2005. It was on the last of those days that the jury returned with its verdict of guilty.

3. [21]

   The appellant did not dispute at the trial that he had killed the three deceased. He did not dispute that he had shot each of the two children and had killed Mrs Shen by a brutal assault.

4. [22]

   He pleaded not guilty to the murders and based his defence on mental illness. He argued before the jury that, as a consequence of that mental illness, he ought to be acquitted entirely of the offences (“the mental illness defence”). In the alternative, he submitted to the jury that the partial defence of substantial impairment was made out so that he was only guilty of manslaughter (“the partial defence”).

5. [23]

   Plainly, in returning their verdicts of guilty, the jury rejected both of those defences.

6. [24]

   On 3 June 2005, for the reasons which he articulated, Barr J sentenced the appellant to life imprisonment with respect to each count: R v Crespin Adanguidi [2005] NSWSC 519 (“SJ”). Barr J did not fix any non-parole period.

7. [25]

   The appellant did not bring an appeal against his convictions. He did, however, seek leave to appeal to the Court of Criminal Appeal against the sentences imposed on him.

8. [26]

   On 15 December 2006, the Court of Criminal Appeal (Spigelman CJ, Sully and Hislop JJ) granted him leave to appeal against the sentences but dismissed his appeal: Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 (“the CCA judgment”).

9. [27]

   Having regard to the law that existed at the time of his trial, the mental illness defence required the appellant to establish on the balance of probabilities that when he did the acts causing death, he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong: see s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). This test reflects the judgment of the High Court of Australia in The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 188; see also Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192.

10. [28]

    The partial defence placed the onus on the appellant to establish, on the balance of probabilities, that at the time of the acts causing death, his capacity to understand the events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition. If he succeeded in establishing that state of affairs, he then needed to persuade the jury that the impairment was “so substantial as to warrant liability for murder being reduced to manslaughter”: see s 23A Crimes Act 1900.

11. [29]

    At the trial, the appellant called Dr Bruce Westmore, a forensic psychiatrist, and relied upon his opinion which, in summary, supported the conclusion that the appellant had a mental illness defence. That was because Dr Westmore said that whilst the appellant knew the nature and quality of his acts, he did not know that they were wrong. Dr Westmore was unavailable and so did not give any evidence on the appeal.

12. [30]

    The Crown called Dr Nielssen, a psychiatrist, in its case in reply at the trial. By way of brief summary, Dr Nielssen expressed the view that it was possible that the appellant was suffering a psychotic illness which might have had some effect upon the appellant’s ability to judge right from wrong, but Dr Nielssen was persuaded that any abnormality did not affect the appellant’s reasoning ability in the sense that it did not affect his capacity to form and undertake purposeful action and, accordingly, the effect was not very great.

13. [31]

    It is convenient here to set out the remarks of Barr J on the question of the appellant’s mental state. At [72] of the SJ his Honour said:

14. [32]

    In the Court of Criminal Appeal, when dealing with the application for leave to appeal against sentence, it was contended that it was not open to Barr J to find, as he did, that the appellant’s culpability was not affected by his illness. That contention was rejected by the Court.

15. [33]

    On the hearing of the appeal, further evidence by way of a report of Dr Nielssen dated 29 October 2006 and a report of Dr Pascal Agonkan a specialist psychiatrist from Benin, dated 2 June 2006, was put before the Court of Criminal Appeal.

16. [34]

    The Court of Criminal Appeal was provided with the appellant’s prison file for the period after sentence and up to 12 September 2006.

17. [35]

    The attempt to place that additional material before the Court was rejected unless the Court came to re-sentence. The Court was not persuaded that Dr Nielssen’s report of 29 October 2006 added significantly to his evidence at the trial and, as well, that it had any impact upon the question of the appellant’s capacity at the time of the murders. The Court was also unpersuaded that the material contained in the report of Dr Agonkan impacted upon Barr J’s conclusion as to the appellant’s condition at the time of the murders, nor, the Court held, did it affect any opinion of Dr Nielssen.

The Objective Facts Established at Trial

1. [36]

   It is convenient at this stage to identify the facts at trial for which there was objective evidence with respect to the appellant’s offending. The Court will separately consider the various accounts of the appellant and the evidence before the jury with respect to his mental status. However, it is important to set out the factual background – which was largely unchallenged. Those facts are most easily identified and taken from the SJ between [4] and [22].

2. [37]

   Some features of this factual account can be readily identified. They are:

3. [38]

   Each act was done for a particular and obvious purpose. The acts had features of deliberateness and intention. The sequence of the acts strongly suggested a plan conceived before first meeting Mr Shen that evening, and the confirmation of the plan by its execution throughout the time until the appellant returned to his apartment. Not one of these acts was accompanied by incoherence, irrationality or any lack of purpose.

4. [39]

   It was the totality of this conduct against which, in light of the evidence at the trial, the jury were asked to consider the defence of mental illness and the partial defence, to which we now turn.

The Absence of Evidence from the Appellant

1. [40]

   It needs to be said at the outset that the appellant did not give sworn evidence at his trial. The appellant was not obliged to do so. No adverse inference can be drawn against him for not doing so. No such inference is drawn.

2. [41]

   On the hearing of this appeal, the appellant did not give evidence either. Again, he was not obliged to do so, and there may well have been legal reasons why he was not able to. The point is only mentioned so that it can be clearly identified as not giving rise to any adverse inference to be drawn by this Court against him.

3. [42]

   He did, however, give various accounts in various circumstances to various people - particularly to those health professionals with whom he came into contact after his arrest, and to psychiatrists retained to assess him for the purpose of the issues which were to be raised at his trial, and on this appeal.

4. [43]

   These various accounts were not sworn to. The discrepancies in and between the accounts are not the subject of any challenge by cross-examination. This Court needs to exercise caution before, uncritically, accepting these various accounts, or parts of them.

The Appellant’s Psychiatric History and Mental State Leading up to the Offending

1. [44]

   It is now appropriate to summarise the factual evidence about the appellant, including reference to any mental illness issues, which was led at the trial.

2. [45]

   The appellant was born in 1977 in the Republic of Benin in West Africa. Mr Jean Adanguidi was the older brother of the appellant and through the assistance of a French interpreter, he gave evidence in the trial about their childhood.

3. [46]

   Mr Jean Adanguidi stated that their “early existence was very difficult” as there would often be issues due to jealousy from their father’s three wives and pressure from needing to feed and clothe everyone. He said that there were 23 children altogether and that the appellant started working in a maize mill at seven or eight years old in order to help their family survive.

4. [47]

   Mr Jean Adanguidi said that when the appellant was around 13 years old, he noticed that he started suffering from “mental troubles”. He described them as follows:

5. [48]

   Mr Jean Adanguidi said that their family tried to help the appellant but they “realised it was the beginning of a kind of madness”. As such, in addition to family support, they sought help through the only psychiatric hospital in Benin (in Jacquot) and also exposed the appellant to traditional medicine in Ketou. Mr Jean Adanguidi said that the appellant stayed at the psychiatric hospital for a few days and was in the traditional medicine hospital from May to August 1991. The appellant would have been about 14 years old at that time. He said that when he visited the appellant at the traditional medicine hospital, he “did notice an improvement from the time his stay in the Hospital [sic] comparing with the time before”. In re‑examination, Mr Jean Adanguidi confirmed that mental health problems in Benin were often treated through a combination of traditional medicine with modern medicine in order to produce a “good result”.

The Appellant’s Life in Australia prior to June 2022

1. [49]

   The appellant came to Australia in 1996 when he was around 19 years old. Mr Gary Keats was a friend of the appellant, having met him towards the end of 1996 when Mr Keats sponsored the appellant to live with his family for about six months. Mr Keats said that the appellant was very much a “fun loving sort of guy” who used to “joke around a lot”. He said that he never saw the appellant act in a violent way.

2. [50]

   Ms Karen Keats was the wife of Mr Keats and she agreed that she believed she got to know the appellant very well from the time he lived at their house. She also said that the appellant was a fun-loving person who was easy to get on with and was laid back. She said that he was easy to talk to and was a lively person who was especially animated. She said that the appellant did not tell her about his admission into a psychiatric hospital in Benin.

3. [51]

   Ms Alicia Richards was the separated wife of the appellant, and she gave evidence in the trial about her experience with him from when they started dating in January 1999. In cross-examination, she said that prior to June 2002, she had only seen the appellant “aggressive once” and had never seen him “being violent”. She said that in the four years she knew him, he was a very caring father to their two children, and that he was “fun-loving”, “good company”, “easy to get on with” and a person who “joked around”. She said that the appellant did not tell her about any of the health problems he had as a child.

4. [52]

   Mr Raymond Shen was a friend of the appellant and the father and husband of the three deceased victims. Mr Shen first met the appellant in about the year 2000 when the appellant was working as one of the security staff in Mr Shen’s residential building. He said the appellant appeared to be “a very nice person”, and a friendship developed between them where they would talk about business plans, travelling, and their love for their family members. Mr Shen said that prior to January 2003, he had never seen the appellant angry, threatening or behaving aggressively. Mr Shen also confirmed that their friendship involved sexual intimacy, which began when they first met and continued up until the time of the offending.

5. [53]

   Ms Richards said that the appellant was fearful of voodoo and that it was a “continuous thought” that they discussed on “quite a few occasions”. She said that the appellant knew people who did voodoo and told her about “how they do curses and it comes true and other children have had harm done to them and other people have had harm done to them”. She said that the appellant:

6. [54]

   Ms Keats gave evidence of an occasion when she had a “very long conversation” with the appellant (with Mr Keats present) in which the appellant was “very distressed” and “brought up this story about his village where, to [her] understanding, the practice was to sacrifice a child for the sake of the health of the village”. Mr Keats gave similar evidence about this conversation where the appellant was “very upset” when describing his “experiences in eye witnessing events in voodoo activities”. Both Mr and Ms Keats gave evidence describing the story as one where a crowd of people from a village chased a boy up a tree and chanted until the boy killed himself by jumping from the tree. Ms Keats gave evidence that they understood the appellant to have been about six, seven or eight years old in this story.

7. [55]

   Mr Jean Adanguidi confirmed that the vast majority of their population practiced voodoo, including the appellant, but gave evidence that the practice “didn’t include human sacrifices, chickens, sheep and the like”. Mr Jean Adanguidi gave evidence that the appellant did not tell him the story about seeing the young boy falling from the tree to his death but said that the appellant was not the type of person to “exaggerate or tell tall stories”.

8. [56]

   Ms Richards said that the appellant did not tell her the story about the little boy from his childhood until after he went into custody.

9. [57]

   Ms Richards gave evidence that in around June 2002, the appellant travelled to Benin by himself for approximately 10 days to go and visit his family. Mr Jean Adanguidi confirmed that he saw the appellant in Benin during this trip and that he appeared “quite well”.

10. [58]

    The evidence established that the appellant’s demeanour began to change after the Benin trip. Ms Richards said that the appellant returned from the trip early, and that he was “all right for a couple of weeks and then he started to really withdraw and didn’t communicate with [her] much at all”. She said:

11. [59]

    Ms Richards said that it became common for the appellant to get up in the night and watch TV, go on his computer, or look out the window on the balcony. When asked if the appellant told her what his nightmares were about, she said: “No, he didn’t discuss any emotions with me”. Ms Richards could not recall if they had any conversations about voodoo after he returned from the Benin trip.

12. [60]

    Mr Jean Adanguidi said that prior to the Benin trip, he would have regular contact with the appellant and the appellant would be the one to phone him most of the time. However, after the appellant returned to Australia, Mr Jean Adanguidi said that the appellant stopped calling. When Mr Jean Adanguidi eventually phoned him, he gave the following evidence of their conversation:

13. [61]

    Ms Richards gave evidence that particularly towards the end of 2002, the appellant’s memory appeared to be deteriorating. She said the memory loss was something she identified and brought to the appellant’s attention before the offending. When asked how the memory loss presented itself, she described it as follows:

14. [62]

    Ms Richards gave evidence that the appellant saw a doctor about his memory loss and that he was prescribed medication as treatment. She confirmed that the appellant would have been taking the memory loss medication at the time of the offences. Ms Richards also confirmed in cross-examination that there was a time when a whiteboard was purchased to allow the appellant to write notes to himself on it.

15. [63]

    In around December 2002, the appellant and Ms Richards were the subject of a break and enter in which various items were stolen. She said that around two weeks later, she saw a firearm on a bookshelf in the dining room and she asked the appellant why it was there. She said he responded as follows:

16. [64]

    Ms Richards gave evidence in cross-examination that the appellant also purchased an alarm system after the break and enter and she agreed that he was “overly concerned to ensure that it was on at all relevant times”. She said he was “definitely checking it to make sure that it was working properly. He wouldn’t give anyone else the code for it.” In re-examination, Ms Richards said the code was to activate or deactivate the alarm and she did not touch the alarm system as she was always with him.

17. [65]

    On 10 January 2003, Ms Richards separated from the appellant after an incident occurred where he slapped their first child in the face. She left with their two children that day and described the incident as follows:

18. [66]

    In cross-examination, she agreed that this incident with their first child was “extremely unusual” especially since the appellant spent a lot of time with their children and bathed them often.

19. [67]

    Ms Richards said that in the period between when she separated from the appellant and the time of the offending, she had contact with him over the phone every couple of days. She gave the following evidence of their interactions during that period:

20. [68]

    Ms Richards gave evidence that she could not recall if the appellant complained of any strange phenomena such as hearing voices because he would have said “something like that in a form of a joke” and she “probably wouldn’t have remembered it because [she] would have thought he was joking”. When asked whether she recalled telling the appellant to see a doctor about hearing voices, she said that she did not. When asked if there were other occasions in which she told the appellant to see a doctor, she said:

21. [69]

    Ms Richards gave evidence that the appellant also complained that “his head was hurting a lot” in the lead up to the offending. She said that “he was getting lots of headaches” and that “his eyes were hurting”. When asked if he saw a doctor about this issue, Ms Richards said she thought he did and that it would have been around the same time the appellant was discussing his memory loss with the doctors.

22. [70]

    Mr Jean Adanguidi said that the last time he spoke to the appellant on the telephone was in January 2003 and he recalled a conversation where the appellant told him about the state of his health. Mr Jean Adanguidi said the appellant “mentioned the nightmares, the headaches and all his problems” and that “his illness had worsened, that he had nightmares and he couldn’t go to sleep”. When Mr Jean Adanguidi was asked if the appellant told him what the nightmares were about, he said: “Since the phone conversation were expensive we didn’t dwell on the extent of the nightmares but he told me that he had bizarre dreams”.

23. [71]

    Ms Yvonne Tudela was in an intimate relationship with the appellant in the period leading up to 1 February 2003. She gave evidence that the appellant came to see her at her home on 19 January 2003 and that she did not recall him telling her anything on that occasion about any problems he was having. She said the next time she saw the appellant was the early morning of 1 February 2003 shortly after the appellant committed the offences.

24. [72]

    Mr Shen said that he travelled to China in January 2003 for “about 20 or 16 or 18 days”. On 24 January 2003, while Mr Shen was away, the appellant sent him the following email tendered by the Crown at trial:

25. [73]

    Mr Shen said that that email was the first time the appellant told him about “divorce things” and his wife taking the children.

26. [74]

    On 27 January 2003, Mr Shen sent the following email in reply to the appellant:

27. [75]

    Mr Shen said that he arrived back in Sydney on 29 January 2003, and that the following day (30 January), the appellant rang him on the telephone and said he wanted to see him. Mr Shen told the appellant that he had dinner plans that night but that he would go and see him if it was still early afterwards. At around 9 to 9:30pm on 30 January, Mr Shen said that he tried to ring the appellant but there was no answer. He said he left a few messages asking the appellant to ring him before eventually going to travel home. Mr Shen said that after he got off the train and as he was walking home, he received a phone call from the appellant asking him “to go”. Mr Shen said he replied that “the time was too late” and they made arrangements to meet the following evening on 31 January 2003.

28. [76]

    Detective Sergeant Joseph Maree stated that the appellant attended the North Sydney Police Station shortly after 8:30pm on 30 January to collect a copy of “some papers about the complaint in relation to his son”. Detective Maree confirmed that the appellant remained at the police station until 9:25pm. He did not give any evidence that suggested that the appellant’s behaviour was other than normal during this visit to the police station.

29. [77]

    On 31 January 2003, Ms Keats spoke to the appellant over the telephone and asked if he wanted to have an evening meal together to talk about his separation from Ms Richards. She said that the appellant said “he could not come for tea that night because he had other plans, but he would come the following Tuesday night [4 February 2003] and talk to us then”. The appellant told Ms Keats that he had a misunderstanding with Ms Richards and that “he was hoping to talk to her over the weekend and that he felt that he would be able to work the problems out”. When asked how the appellant sounded, Ms Keats said he was “depressed and upset, but he seemed confident that he was going to be able to get through this problem”. Ms Keats confirmed that they made arrangements to meet the following Tuesday.

30. [78]

    Mr Shen gave evidence that when he met the appellant on the evening of 31 January 2003, the appellant was “in very normal attitude” and “very friendly”. He said that he had not noticed any change nor anything unusual in the appellant between 29 and 31 January 2003, with the exception of the following:

31. [79]

    In relation to whether they spoke about the appellant’s separation from his wife that evening, Mr Shen gave the following evidence:

32. [80]

    Mr Shen and the appellant then spent about 20 to 30 minutes talking about the appellant’s family before going into the bedroom to engage in sexual touching. The touching lasted around 10 to 15 minutes, and as Mr Shen got dressed afterwards, the appellant knocked him to the floor and the offending began.

33. [81]

    During the period when Mr Shen was held captive, he described the appellant’s demeanour as “very calm”, and “very normal”. He said the appellant’s behaviour completely changed after he hit him but that “his talking attitude still pretended to be very kind, very nice, only he needed the money, but that was to my surprise. He was so greedy”. Mr Shen said the appellant received “at least four or five phone calls” while he was held hostage and that when the appellant spoke on the phone, he would “talk very normally, even with smiling”. Mr Shen denied that the appellant appeared aggressive or angry but agreed that he was terrifying.

34. [82]

    Mr Shen gave evidence that the appellant wanted the money to leave Australia, and that the appellant told him he “just killed a pharmacist in Hurstville the day before, and the man didn’t give him the money, so he killed him and threw him to the bush”. The appellant told Mr Shen that if he didn’t give him the money, he would “do the same” to him. The police investigation established that there was no pharmacist in Hurstville that was killed on 30 January 2003.

35. [83]

    Mr Shen said the appellant wanted $200,000 to pay for a “Slovenian gang” and “Mascot cop” to assist him in leaving Australia through fake documents. He said the appellant also accused him of sending photos of them having sex to the appellant’s wife. Lastly, Mr Shen gave evidence that the appellant repeatedly told him that he “felt sorry about doing this” and that he did not want to do this to him but there was a “Slovenian gang” forcing him to. When the conversation shifted to Mr Shen’s children, Mr Shen pleaded with the appellant not to harm his family but the appellant again replied that the “Slovenian gang people” were forcing him to.

The Appellant’s Accounts of the Offending in the time around his Arrest and up to his Trial

1. [84]

   The appellant was arrested shortly after 4:50am on 1 February 2003. His trial before a jury began on 29 March 2005. In the time between his arrest and the beginning of his trial, the appellant gave varied accounts to different people regarding what occurred on 1 February 2003. A chronological summary of the appellant’s accounts to various witnesses is now set out.

2. [85]

   Ms Tudela gave evidence that she received a telephone call from the appellant at about 4:30am on 1 February 2003. The appellant said, “Can I come in? I have a problem. I’m at the front balcony” and Ms Tudela said, “Okay”. When she opened the front door, she saw a “big sports bag” and the appellant walking towards her front gate with two more bags. She said she told the appellant to come in and they went inside the house and put the bags in the hallway. Ms Tudela shut the front door and asked the appellant what was wrong, to which he said “he had a problem with his wife”. She said he did not say what the problem was at that particular time, and gave the following evidence of their conversation:

3. [86]

   In relation to the appellant’s demeanour, Ms Tudela gave evidence that he appeared agitated and “didn’t seem himself […] he was nervous and he looked very serious and worried, a bit distant, like he wasn’t right there”. In cross‑examination, Ms Tudela gave evidence that the appellant was “sort of talking” but that he did not seem to be talking to her at times. When asked if the appellant’s eyes appeared glazed, she said “I think so, yes”.

4. [87]

   Ms Tudela stated that the appellant told her that inside the bags were all of his belongings and some money, and that he would “pick up his bags in a couple of hours”. Ms Tudela said the appellant was at her home for about 10 minutes, and that a couple of minutes after he left, he called her phone again and asked her to open the door. The appellant said he needed to “get something” and went to take something out of one of the bags before leaving again (Ms Tudela did not see what the appellant took from the bag). Ms Tudela gave evidence that that was the last occasion on which she had contact with the appellant.

5. [88]

   Senior Constable Bree Longley was one of the police officers who arrived in response to Mr Shen’s 000 call. She gave evidence that at about 4:50am, she was talking to another officer when she saw the appellant driving towards her in Mr Shen’s car. She said the appellant parked the vehicle around 100 metres from her and that when he exited the car, she told him to, “Drop everything in your hands”. Senior Constable Longley gave evidence that at this stage, another officer came down to where she was and had his gun pointed at the appellant. She said the appellant did not comply at first, but that she walked up to him, grabbed him by the right arm, pushed him against the fence, placed him in a wrist lock, and handcuffed him. She gave the following evidence:

6. [89]

   Senior Constable Longley gave evidence that she left momentarily in order to obtain a caged police vehicle. She said that when she returned, their interaction continued as follows:

7. [90]

   Senior Constable Longley gave evidence that the appellant was then taken to Maroubra Police Station and introduced to the custody manager.

8. [91]

   At about 5:20am on 1 February 2003, Detective Sergeant Sydney Howard Davis saw the appellant in the charge room at Maroubra Police Station. Detective Davis gave evidence of their conversation throughout the day as follows:

9. [92]

   Detective Sergeant Joseph Maree was the officer-in-charge of the investigation and one of the officers who spoke to the appellant at Maroubra Police Station on 1 February 2003.

10. [93]

    At about 11:20am, Detective Maree introduced himself to the appellant in the charge room and gave the following evidence of their conversation:

11. [94]

    Detective Maree then confirmed with the appellant that he had spoken to his solicitor earlier that morning and offered him a further opportunity to speak to his solicitor, which the appellant accepted. At 11:45am, the appellant was moved to a different area of the police station to speak to his solicitor. At about 12:05pm, the appellant returned to the charge room and his solicitor left the police station. At about 1:30pm, Detective Maree had the following conversation with the appellant:

12. [95]

    Detective Maree asked the appellant if he was prepared to be interviewed about what he just said, to which the appellant said yes. Detective Maree then left to set up the interview room, and when he returned, he said the following occurred:

13. [96]

    Detective Maree gave evidence that he then escorted the appellant to the interview room but that before the interview could commence, the appellant asked for his solicitor to be present. Detective Maree gave evidence that the appellant said, “I want to tell you what happened but I do not want to say anything that may incriminate me”. Detective Maree gave evidence that the appellant was then moved to a cell adjoining the charge room to speak to his solicitor and that a short time later, he was advised by the appellant’s solicitor that the appellant was not going to participate in the interview. Detective Maree confirmed at trial that he was not able to ask the appellant any questions in an interview.

14. [97]

    Dr Jeffrey McDonald was the consultant psychiatrist at St Vincent’s Hospital where the appellant was admitted from 2 to 4 February 2003.

15. [98]

    Dr McDonald gave evidence that the appellant was conveyed to the hospital by an ambulance after he was found unconscious, collapsed, and not responsive on the floor of the cells at the Surry Hills Police Centre. Dr McDonald gave evidence that the file recorded that the appellant admitted to taking soap with the intention of killing himself, and that the appellant denied the charges and repeatedly stated that he had been “set up”.

16. [99]

    On 3 February 2003, Dr McDonald saw the appellant for around 30 minutes in his capacity as a psychiatrist. With the assistance of his notes, Dr McDonald gave the following evidence of the appellant’s account:

17. [100]

    The notes of Associate Professor Kay Wilhelm (a psychiatrist) which were tendered through Dr McDonald, recorded the following account by the appellant:

18. [101]

    Dr Lawrence Varga was a general practitioner at Long Bay Hospital who was the doctor on duty and saw the appellant from 4 February 2003 onwards. Dr Ellis was a Senior Psychiatric Registrar who saw the appellant on 9, 10 and 12 February 2003. Dr Ellis’ notes were tendered through Dr Varga and recorded the following account by the appellant regarding the offending:

19. [102]

    Dr Robert Reznik was a psychiatrist at Long Bay Hospital who also gave evidence confirming that the appellant told him “he thinks Raymond has set him up”.

20. [103]

    Ms Richards said that on about 7 February 2003, the appellant called her on the telephone from gaol and they spoke for “a couple of minutes”. She described their conversation as follows:

21. [104]

    Ms Richards gave evidence that she spoke to the appellant “probably a week after on the phone” but that she could not recall speaking about the offence on that occasion. She said that the first time she visited the appellant in gaol was inabout April 2003 (three weeks after the preliminary hearing at the Local Court) but that they did not speak about the offence on that occasion either as her parents were with her. Ms Richards said that the next time she spoke to the appellant about the offending was maybe the weekend after her first visit. She described their conversation as follows:

22. [105]

    Mr Keats gave evidence that on 8 February 2003, he went to visit the appellant at the hospital section of Long Bay with his wife and another friend. He said he spent “probably an hour” with the appellant and described their interaction as follows:

23. [106]

    On 3 March 2003, Mr Keats received a handwritten letter from the appellant. The letter was tendered in the trial and contained the following:

24. [107]

    Mr Keats gave evidence that he replied to the appellant within the week through a typed letter. He agreed that he received another letter back from the appellant a few weeks later in reply. The second letter from the appellant was tendered in the trial and contained the following:

25. [108]

    Mr Jean Adanguidi gave evidence that he became aware that the appellant was charged with murder in around March 2003 after the appellant stopped answering his phone calls. Mr Jean Adanguidi gave evidence that he had not spoken to the appellant since his arrest but that the appellant wrote him three or four letters. He said the letters were “a bit unspecific” and did not mention anything in detail in relation to the events which led to the appellant’s arrest. Mr Jean Adanguidi also confirmed that he did ask the appellant directly why he was in jail and his answers were “non-specific” but that he “mentioned that a friend of his or their children had lost their lives”. The appellant otherwise did not tell him what had happened.

Psychiatric Evidence of Dr Westmore

1. [109]

   At trial, Dr Westmore was called by the appellant to provide his expert opinion as to whether the appellant had a mental illness defence available to him, owing to a probable diagnosis of schizophrenic illness. Dr Westmore gave evidence that he had met with the appellant on three occasions in 2003 and 2004.

2. [110]

   What follows is a summary of Dr Westmore’s evidence at trial, including his evidence about the expert opinions of other psychiatrists.

3. [111]

   Dr Westmore was not called to give evidence as part of the appeal and was not involved in any reconsideration of his opinion. His evidence was as follows.

4. [112]

   Dr Westmore first saw the appellant on 14 May 2003 in B Ward, Long Bay Hospital, for the purpose of assessing his fitness for trial. On this occasion the appellant told Dr Westmore that he intended to plead not guilty to the charged offences, stating “I didn’t do it”. The appellant said that at the time of the offending he was self-employed in a cleaning business, living with his wife and two children aged three and one in a rented property in Maroubra.

5. [113]

   The appellant said he had not met the victims before, and they were a family of somebody he was doing business with. He confirmed there were four victims, three of whom died and one other person. It was clarified he knew the fourth person but not the three deceased persons. He and the fourth person were planning business together to sell products in Africa, for example, cheap products like t-shirts. He denied kidnapping the fourth person.

6. [114]

   On the day of the incident the appellant stated he had seen the fourth person and “just as usual he came to my place”. He confirmed he had left some bags in a woman’s unit, and that there was a weapon in one of the bags but that he did not know about any blood on the weapon. He said the weapon belonged to the fourth person he had referred to.

7. [115]

   He said he had had half a bottle of wine and thought he had been intoxicated. He said he had nothing to do with the murder or the alleged kidnapping.

8. [116]

   As to his past medical history, the appellant told Dr Westmore that he had surgery to his sinuses and had recently been diagnosed with neurosyphilis. The appellant stated that he first saw a psychiatrist about nine years earlier in Africa and was hospitalised for a few weeks but could not give more details. When asked what symptoms he had, he said he had gone to school but during the lessons he would just stare. He was not listening to the teacher. He had started yelling and screaming at school. When asked directly if he had heard voices he said “yes, at the time there was a voice asking to recount the lesson he had previously attended”. He said, “the voice was male, single and internal”, which means inside his head. He could not remember if he was treated with medication, but said he remembered being handcuffed and hosed. There was no psychiatric follow up.

9. [117]

   The appellant did not consult a psychiatrist at any time after this occasion of hospitalisation until he was admitted to prison following the homicides.

10. [118]

    The appellant told Dr Westmore that in the previous four months he “was having hallucinations, voices”. The voices were different, and he could hear a lot of people talking but was unable to tell Dr Westmore what the voices were saying. The only voice the appellant recognised was that of a small boy.

11. [119]

    When asked by Dr Westmore if he received messages from the television or radio the appellant confirmed that he did for about one month before he was placed into prison and for about two months after being placed into prison. He explained that he also saw things like people wearing white coats and he thought people in the television were talking to him, these hallucinations were still occurring “fairly often”. The appellant confirmed that symptoms were decreasing with time, with the assistance of medication.

12. [120]

    During the course of the examination, he started looking around the room at the walls and ceiling and said “I still hear voices”.

13. [121]

    The appellant said he was a non-smoker and a heavy regular drinker. At the time of the examination, he was taking an antipsychotic medication (Zyprexa) and Valium (a minor tranquiliser) twice a day and an antidepressant he could not name. He denied illicit drug use.

14. [122]

    The appellant denied any knowledge of family psychiatric problems. He reported there was some violence towards him at school and that a priest sexually interfered with him when he was 7 or 8 years old. He completed high school and studied electronics at university in Benin. He came to Australia in 1996 on a scholarship from the International Olympic Committee to train for the 400 metre hurdles. He said he did some training in Australia but worked as a kitchen hand and cleaner. He did a computer course and worked for a computer company assembling computers. He did security work from 1997 until sometime in 2002 and ran a cleaning business.

15. [123]

    He married a 22-year-old Anglo Australian woman in 2001 with whom he had two children who were happy and healthy. They all visited him regularly.

16. [124]

    In determining his fitness to stand trial, again Dr Westmore noted at a point during the discussion the appellant appeared to become distracted, and confirmed the appellant was being distracted by auditory hallucinations. The appellant said he was having trouble concentrating and tended to drift off.

17. [125]

    Dr Westmore’s observations from the mental state examination were:

18. [126]

    In terms of diagnosis on that occasion Dr Westmore referred to the psychiatric history in Benin, then summarised the presenting issue thus:

19. [127]

    Dr Westmore noted that if the appellant had neurosyphilis then the differential diagnosis (the range of possible diagnoses) might be that he had an organically derived psychosis, arising from his neurosyphilis or schizophrenia.

20. [128]

    As to his fitness to stand trial, Dr Westmore thought he had a generally good understanding of the various requirements about fitness and demonstrated some ability to learn about those matters where his knowledge was poor. His main concern was that the appellant was showing signs of mental illness, being distracted with reduced attention and concentration, and appeared to be responding to auditory hallucinations. Dr Westmore thought:

21. [129]

    Dr Westmore saw the appellant again on 16 February 2004.

22. [130]

    On this occasion the appellant again said that he intended to plead not guilty on the basis that he “didn’t do it”. The appellant told Dr Westmore that he had spent 11 months in D Ward (the psychiatric unit at Long Bay Prison), being discharged from that unit in November 2003, at which time he moved to another section of Long Bay Prison. Dr Westmore thought this significant stating “patients are rarely kept there unless there’s an absolute necessity”. The appellant also continued to see a psychiatrist every fortnight and was taking medication (two types of antipsychotics and one antidepressant) which he thought was helping and made him more relaxed.

23. [131]

    The appellant still complained about voices; however, he said that the medication helped to reduce the voices, and he was now “less troubled” by them. The appellant continued to receive psychotic experiences from the television and radio, and these were not decreasing in frequency.

24. [132]

    During the mental state examination, Dr Westmore indicated that the appellant sat quietly and maintained good eye contact and spoke in a non-expansive fashion in response to questions. His tone of speech was flat, and his rate of flow of speech was normal. The appellant’s affect was blunted and unreactive and mood state restricted. The appellant described continuing problems with auditory hallucinations and ideas of reference, but the auditory hallucinations were troubling him less now than previously. Dr Westmore noted that on this occasion the appellant did not appear to be distracted by auditory hallucinations and appeared to be alert and attentive.

25. [133]

    Dr Westmore was again of the opinion that the appellant had a mental illness. He noted that he was receiving regular psychiatric care and medication. His illness was showing some responsiveness to treatment but had not yet gone into remission. He believed the appellant was fit to be tried.

26. [134]

    Dr Westmore saw the appellant again on 24 March 2004, and remained of the view that the appellant was fit to be tried. The purpose of this assessment was to provide an opinion as to whether he would be eligible for a mental illness defence or to determine whether he suffered substantial impairment at the time of the alleged murders. Dr Westmore concluded on the balance of probabilities that the appellant had a mental illness defence open to him.

27. [135]

    The appellant explained that he intended to plead not guilty and stated, “I wasn’t well when it happened”. Dr Westmore asked in what way he was not well, the appellant said, “I didn’t know what I was doing”. When asked directly if he was suffering from mental symptoms at the time the appellant responded “Yes” and stated, “I was hearing voices and I thought the people were out to hurt me”.

28. [136]

    The appellant stated he had heard voices for about three or four months prior to the incident and they were male and internal. They were stating “I’ll get you”. He could not hear some of the voices clearly. He could not say where the voices came from. He had not seen doctors in relation to these voices but had told his wife about them. She had advised him to see a doctor.

29. [137]

    He said the victims were “Raymond’s family”. Raymond was his friend. He had known Raymond for about three years and had met him while he was a security guard in the apartment block where Raymond lived with his family. Prior to the incident he had never met Raymond’s family.

30. [138]

    The appellant said prior to the incident “Raymond came to me and told me that he was having problems with his family” and that “they are running his life for him and anything he has to do he has to ask them”. The appellant said “[t]hat night he asked me to go there and kill them”. The appellant asked if he was sure and Raymond said “yes, if I am his friend now, he needs me”. The appellant said “I said I couldn’t do it”. The appellant said that Raymond said “if I’m his friend now, he is in a bad concentration, I should show it” (that is, the friendship). Raymond had given the appellant “two guns to clean up for him before” (previously). Raymond asked for them back:

31. [139]

    The appellant stated:

32. [140]

    The appellant further said “before I left my place Raymond said he left something on the table to collect for him. I collect for him and I run away from the unit”. Raymond told him “it was money in the bag”. The appellant denied attacking Raymond or tying him up. He denied saying he wanted to possibly leave the country, and that he had no reason to leave the country. He denied taking money from Raymond’s vehicle and denied saying he was a member of a Slovenian gang. The appellant also stated that he had not taken money from Raymond’s home and that he did not know what was in the bag.

33. [141]

    The appellant said that Raymond was lying when he said the appellant had tied him up. He said his behaviour was wrong “because nobody deserves to die”.

34. [142]

    The appellant still heard voices “a few times a day” (as at the time of this consultation in March 2004).

35. [143]

    His presentation in this mental state examination was the same as the previous one.

36. [144]

    Dr Westmore noted that on this occasion he provided a different history. He reported he was responsible for bashing one victim and shooting two others.

37. [145]

    The appellant provided Dr Westmore with both a psychotic and non‑psychotic explanation for his behaviour, although the differentiation of the two was not clear. The psychotic explanation was that he heard voices telling him to “help Raymond”, and the non-psychotic explanation was that his friend Raymond had asked him to kill members of his family.

38. [146]

    Dr Westmore opined that the appellant suffered from a psychotic illness, probably schizophrenia but that a wide range of medical investigations needed to be done. He was now (that being March 2004) acknowledging that he committed the acts, and giving two different types of explanations, a psychotic and non-psychotic explanation. He disputed some of the facts and stated that Raymond was lying. Dr Westmore asked for, and received, more information and history from St Vincent’s, and from Long Bay prison hospital in relation to the appellant.

39. [147]

    Dr Westmore stated:

40. [148]

    Dr Westmore determined it was unlikely that the acutely psychotic illness would have come upon the appellant suddenly. Acute onset is usually precipitated by other factors such as drug abuse or an intracranial event of some type.

41. [149]

    Taken to the evidence of the appellant’s wife, Dr Westmore thought this sounded more consistent with a person primarily depressed (the appellant still had depressive symptoms) but could be consistent with the beginnings of the acute psychosis. His wife had noted he had hit their son, which was unusual, and was withdrawn whereas he was usually fun loving and easy to get on with. He started to get nightmares and was hardly ever sleeping. He would stay up all night most nights and appeared very tired and out of energy. After they separated on 10 January 2003, she spoke to him on 31 January and he was very depressed, very upset and very quiet. Dr Westmore explained:

42. [150]

    Dr Westmore then explained that a schizoaffective disorder is a serious psychiatric illness characterised by psychotic symptoms (such as hallucinations and/or delusions) with a significant disturbance of mood (usually abnormally elevated or abnormally depressed). Dr Westmore explained the advantages of a long-term assessment for diagnosis of mental illness.

43. [151]

    Dr Westmore agreed that Dr Reznik, who had seen the appellant from his admission in D Ward at Long Bay Hospital until some-time after that, had had trouble coming up with a diagnosis. Dr Westmore agreed that there were some inconsistencies in the appellant’s symptoms as well as some atypical features of his presentation which complicated the ultimate diagnosis. Dr Westmore’s own view was that it is likely he has a schizophrenic illness, probably with a co‑existing depressive illness. A schizoaffective diagnosis would be a reasonable alternative.

44. [152]

    Dr Westmore was questioned about the behaviour of the appellant during the offending, that being that the appellant likely wore gloves, turned off the electricity in the flat, and spent time in the flat gathering money and valuable property. Dr Westmore was asked if this evidence distracts from his conclusions about the appellant’s illness. Dr Westmore stated that the appellant did appear to engage in “very purposeful goal directed behaviour” but that this behaviour did not exclude the possibility that he was mentally ill at the time. It was explained that some patients with mental illness live “active relatively normal lives despite the presence of mental illness”. During cross examination, Dr Westmore again emphasised this view.

45. [153]

    Dr Westmore was asked whether the appellant’s initial denials followed by more recent acknowledgments of his responsibility for the deaths undermined his diagnosis. Dr Westmore stated that it did not for reasons he then outlined. A mentally ill person may be aware at some level they committed an offence and deny it as they may get into trouble, but other factors that need to be looked at are as follows: first, that he acknowledges to himself what he did but is deliberately denying it to avoid culpability; secondly, that he suffered a degree of trauma as a result of what he did and he is repressing what he did which is different from deliberately denying; and thirdly, but least likely, that some people who are psychotic have delusional thoughts that result in them not being able to give an account of what they did.

46. [154]

    Dr Westmore stated, in summary, he was of the view that the appellant had a mental illness defence open to him on the basis of clinical and historical evidence. He pointed to the clinical evidence from St Vincent’s Hospital and Long Bay immediately after the offences which showed that he was suffering from a mental illness. Dr Westmore stated that on the balance of probabilities, the appellant had a mental illness at the time of the incident. Dr Westmore stated that if one has a mental illness before and after an offence, it is likely it continued throughout the offence. While it is difficult to link the mental illness directly with the offending, in his experience where people’s thoughts become disturbed, their experience of things becomes disturbed. Dr Westmore opined it is more likely than not that the appellant was influenced by his mental illness to a degree at the time of the killing.

47. [155]

    Dr Westmore agreed that he had only seen the appellant in total for two to three hours. He agreed that Dr Reznik had observed the appellant in the prison hospital for close to 18 months and had come to question whether the appellant was malingering. Dr Westmore agreed that there was little evidence from anyone who was in a position to observe the appellant that he was doing anything to indicate he was responding to voices in his head, for instance carrying on a conversation. Dr Westmore opined that it was rare for people with auditory hallucinations to carry on a conversation with the voices they heard.

48. [156]

    Dr Westmore was of the view that it was highly likely the appellant knew what he was doing at the time of the offences because of the goal related, purposeful behaviour, and that it was probable that he was aware at the time that what he did was wrong in the sense that if caught he would get into trouble, but that his ability to determine wrongness in a moral sense was likely to be compromised.

49. [157]

    Dr Westmore was asked, based on the assumption that the appellant lured Mr Shen to his flat with the intention of assaulting him, tying him up and robbing him, and had ready access to rope, gaffer tape and a gun, whether this was consistent with the appellant being psychotic. Dr Westmore responded that it was neither consistent nor inconsistent, but that:

50. [158]

    When this issue was raised again, Dr Westmore further stated:

51. [159]

    During cross examination Dr Westmore agreed that he did not know the appellant’s state of mind at the time the offending occurred. Dr Westmore agreed that his opinion was that the appellant knew what he was doing was against the law, but that the appellant did not understand or appreciate that it was morally wrong. It was his opinion that the appellant had a psychotic illness at the time the offending occurred.

52. [160]

    When asked how long the psychosis or psychotic illness had existed Dr Westmore responded:

53. [161]

    Dr Westmore agreed it was unusual and “almost bizarre” that the appellant made contact multiple times with two of his employees who were cleaning at a cinema whilst Mr Shen was tied up, and the employees did not notice anything unusual about the appellant. Dr Westmore stated it did not say anything one way or the other about whether the appellant was psychotic at the time of the killings.

54. [162]

    Dr Westmore was asked about the many steps the appellant took to undertake the killings, including the amount of equipment he had with him (including gloves, night vision equipment and a loaded gun), turning off the electricity, and the length of time he was in the flat where the victims lived. Dr Westmore maintained his opinion. He acknowledged he had never asked the appellant about his wearing gloves inside the building. As to the shooting of the younger woman while she was on the phone to the emergency services, Dr Westmore opined that it did not help the diagnosis one way or the other. Dr Westmore acknowledged that there was a discrepancy between the appellant having told him that he shot the younger woman as he was leaving, compared to the evidence showing it occurred 37 minutes before he left, but that “[t]here are aspects of it which are not making a lot of sense”. Dr Westmore agreed that the appellant’s account was unreliable.

55. [163]

    Dr Westmore explained that he could not “clearly link these homicides with [the appellant’s] mental illness”. He stated:

56. [164]

    Dr Westmore agreed that there was no evidence that the appellant held any delusional belief about any of the murder victims, which was a unique feature to this case. He further agreed that the things done by the appellant which the prosecutor took him through step by step were the sorts of things that a person not suffering from a psychotic illness would or could do.

57. [165]

    Further, Dr Westmore agreed the appellant’s actions after the killings where he went to Ms Tudela’s house to drop off bags, together with what he said to Ms Tudela about wanting to keep the bags safe, were very purposeful, and stated “there’s no suggestion his mind is not working”. Dr Westmore further stated that keeping the bloodied gloves and murder weapon along with the money and jewellery that he had stolen, and giving that all to the girlfriend, was unusual and disorganised. It would be more typical to dispose of the incriminating material, rather than keep it together with the money. Dr Westmore further agreed that if the appellant had not been arrested shortly afterwards, it is likely he would have returned to dispose of the incriminating material.

58. [166]

    When asked by the Crown Prosecutor whether it is possible that the appellant was not psychotic when he killed the victims but the “sheer horror” of the event itself may have precipitated a psychotic episode in him, Dr Westmore stated “that is possible”. Dr Westmore stated that the appellant was psychotic immediately after he was first seen by a psychiatrist. He stated that most trauma induced psychoses do not come on immediately, that the onset can take weeks or months. Dr Westmore accepted that the appellant was not immediately identified as being psychotic by the psychiatric registrar.

59. [167]

    Dr Westmore agreed that he had engaged in a degree of speculation in forming the opinion that the appellant’s ability to consider his proposed actions in a logical and reasonable fashion was affected by his mental illness. He was giving his opinion on the assumption that the appellant was mentally ill prior to the offences, which Dr Westmore believed he was. He had killed the family of a presumed friend, but had no history of acting in such an extreme way before. He had killed effectively three strangers “which is a very unusual thing for a person to do”. Dr Westmore stated that the types of people who kill strangers were considered to be either:

    1. (1)

       professional killers;

    2. (2)

       people who have antisocial personality disorders, usually in combination with drug and alcohol problems; or

    3. (3)

       people who are psychotic.

60. [168]

    Dr Westmore stated the appellant did not fit into the first two categories.

61. [169]

    Further, although some of the appellant’s behaviour was very goal directed and purposeful, other aspects were not well thought out or well‑constructed. These matters in combination, along with Dr Westmore’s belief that the appellant was, on the balance of probabilities, mentally ill, were such that he found a relationship between the appellant’s illness and his subsequent behaviour.

62. [170]

    Dr Westmore agreed that the scenario did not involve the appellant killing complete strangers, given he had worked as a security guard in the building where the murder victims had lived, and agreed that there was a difference. He also agreed that they were closely related to a person with whom he did have a close relationship.

63. [171]

    Dr Westmore was asked what evidence there was, independent of the appellant, of psychotic symptoms prior to the offending. Dr Westmore stated that the appellant’s wife reported “changes in him” (which Dr Westmore considered to be more consistent with depression), the history of behaviour (contrasted with the “extreme[ly] uncharacteristic” offending), the alleged physical assault on his child (serious enough for his wife to call the police), and the nature of the killings, including that the victims were strangers, and involved the bashing of Mr Shen’s wife in the course of the killings.

64. [172]

    Dr Westmore stated he was not aware that the appellant and his wife had separated on more than one occasion over arguments, and at times she had left of her own accord and other times he had asked her to leave.

65. [173]

    Dr Westmore also stated he had not been aware until the previous few weeks that the appellant and Mr Shen had been in an intimate relationship. Dr Westmore stated he could not exclude that their relationship was relevant or significant, and that it needed exploration.

66. [174]

    Dr Westmore agreed that even if someone was psychotic, they could still know the difference between right and wrong, and that was possible in this case.

67. [175]

    Dr Westmore was aware of the observations of Dr Atherton, Dr O’Neill, Dr McDonald, Associate Professor Wilhelm, Dr Reznik, Dr Mastroianni, Dr Wilcox, Dr Ellis, and Dr Nielssen, and was asked to comment, which included the following.

68. [176]

    Dr Atherton is a psychiatric registrar. He conducted a thorough psychiatric examination of the appellant on 2 February 2003. Dr Westmore agreed that Dr Atherton was unable to detect any psychotic symptoms.

69. [177]

    Dr Westmore stated that he believed Dr Atherton “got it wrong” notwithstanding that it appears he conducted a close examination of the appellant.

70. [178]

    Dr Ellis saw the appellant at the prison on 9 February 2003. Dr Westmore agreed that notes tendered provided a comprehensive record of the symptoms the appellant was reporting.

71. [179]

    Dr Westmore pointed to Dr Ellis’ description that the appellant was having “formal thought disorder”, which is a specific characteristic of a psychosis. He also pointed to a number of symptoms reported by the appellant to Dr Ellis “which, unless you were a psychiatrist or a very well-informed member of the public who has read a lot of psychiatric textbooks, it would be very unusual for a person perhaps from West Africa to just recite a whole lot of mental symptoms which are classical of psychiatric illness”. Dr Westmore agreed that if his claim that he thought that people on the television were watching him was untrue, that would cast doubt on the reliability of his other symptoms that he described to doctors.

72. [180]

    Dr Westmore agreed that the appellant told Dr Ellis an account of the offending in which he acknowledges doing something but not acknowledging that he committed three murders. In short, he told Dr Ellis that he had been over to the apartment, but that the people were already dead.

73. [181]

    Dr Westmore was directed to the notes of Dr Reznik, who was the appellant’s treating psychiatrist and saw the appellant from about 17 February 2003 until about 30 November 2004 (during his time in D Ward and afterwards). Dr Westmore stated that Dr Reznik was:

74. [182]

    Dr Westmore was aware of two references in Dr Reznik’s notes as to the possibility of malingering (from 8 June and 22 November 2004) and said that his review of all of Dr Reznik’s notes (including these references) did not affect his diagnosis and conclusions at all. It was not unreasonable, he said, for the treating doctor to keep the diagnostic process open this way.

75. [183]

    Dr Westmore agreed that Dr Mastroianni, a forensic psychiatrist, conducted a mental state examination on the appellant and subsequently made an entry on 16 September 2004 stating, “? schizo-defective disorder”. Dr Westmore further agreed that after Dr Mastroianni saw the appellant on 16 December 2004, he reported his impression was clinically unchanged.

76. [184]

    Dr Westmore agreed that he had read some notes made by Dr Wilcox, a forensic psychiatrist, after she had seen the appellant on 20 October 2003. Dr Westmore noted the similarities between Dr Wilcox’s conclusions and his own. The appellant’s blunted affect gave her the impression “that he had a very revolving [sic] psychotic illness”.

77. [185]

    Dr Westmore was directed to the report of Dr Nielssen, a forensic psychiatrist. When asked to comment on the report Dr Westmore stated:

78. [186]

    Dr Westmore opined that the observations by all the psychiatrists who had seen him were remarkably consistent. Almost without exception they describe him as having a blunted affect, disturbed mood. They refer to perceptual disturbance. There is a high degree of agreement between all the psychiatrists that the clinical symptoms they see are consistent with a psychotic illness. The history the appellant has provided, that is, the different accounts, is quite significant too, because normally if a false history is given, that false history is adhered to as “unless they are complete[ly] stupid they tend to stick to the same incorrect history”. Dr Westmore noted that the appellant had given a lot of different exculpatory accounts and explanations to different people which was unusual.

79. [187]

    Finally, Dr Westmore agreed that a psychotic illness can have a sudden onset, but it is more likely than not to be gradual. In the gradual period, there may be subtle changes “but there is usually this prodrome which may last weeks or months, but some changes, yes”. If there is no change, that does not exclude the onset of an illness. There are lots of different types of schizophrenia. Paranoid illnesses can come on more suddenly without an obvious prodrome. Some of the other types of schizophrenia such as the disorganised type usually have a clearer history of prodrome of a dysfunction and change before the onset of the frank psychotic symptoms.

80. [188]

    Dr Westmore stated that he thinks the appellant is psychotic, probably schizophrenic. There was a history of change in the weeks preceding the killings, and then immediately afterwards he was thought to be psychotic. The changes described by the wife are likely to have had some significance to the psychosis, possibly a prodrome.

81. [189]

    It is important to have noted in some detail the evidence at trial of Dr Westmore. That is because it identifies clearly the range of psychiatric opinions available to the jury, which although the jury must have rejected them, provides the context against which the evidence on appeal is to be considered. The evidence of Dr Westmore also informs the evaluation by the Court of whether the evidence heard on the appeal is fresh evidence or whether it is to be categorised as new evidence.

Evidence on Appeal: Fresh or New

1. [190]

   Prior to any detailed consideration of the evidence of Dr Nielssen, to which we will shortly come, it is convenient to recall the difference between fresh evidence and “new” or “further” evidence. Evidence on an appeal will only be held to be fresh if it was not available at all at the time of trial, or else if the exercise of due diligence in the making of enquiries, or searching for or identifying the evidence, did not discover it. See generally the authorities and principles discussed earlier at [9]-[11].

2. [191]

   The appellant’s case on the appeal was that the post-trial evidence of Dr Nielssen, as supplemented by the evidence of Dr Large was fresh evidence, which was credible, plausible and capable of belief. The appellant’s case was that such evidence, in the context of the evidence at trial, was of such cogency as would have been likely to have caused the jury to have entertained a reasonable doubt about his guilt.

3. [192]

   The evidence of Dr Nielssen on the appeal will now be considered, necessarily in some detail, to enable the requisite evaluation by the Court as to whether or not the appellant has satisfied the tests described.

4. [193]

   The putative fresh evidence of Dr Nielssen (whose opinions were originally called by the Crown), upon which the appellant now relies touches upon the subject of whether the appellant suffered from a mental disorder at the time he committed the three homicides on 1 February 2003. The conviction ground, alleging miscarriage of justice affecting the verdicts, is argued on the basis that the putative fresh evidence is relevant both to the defence of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990, and to the partial defence of substantial impairment by abnormality of mind provided for in s 23A of the Crimes Act.

The Context of the Trial

1. [194]

   The Crown had served before trial, a report of Dr Nielssen dated 27 July 2004, in which he expressed opinions against the availability of the mental illness defence but supportive of the partial defence. The content of that report, including the opinions expressed in it, were available to the appellant at his trial. He was able, if he wished, to elicit evidence of those opinions, including by seeking to tender the report (or any part of it) as part of his case.

2. [195]

   The appellant’s trial counsel opened to the jury on evidence that she expected to lead from Dr Westmore that at the time of the homicides the appellant “did not appreciate the nature and quality of his physical acts or that he did not know that they were wrong”. Defence counsel informed the jury that she would invite them to return special verdicts of not guilty by reason of mental illness, thereby invoking s 38 the mental illness defence. There was no reference in defence counsel’s opening to the partial defence.

3. [196]

   When Dr Westmore, whose evidence is set out in detail earlier in this judgment, was called, the questioning of him by both counsel was framed in terms of “mental illness” and the criteria recognised at law upon which the jury would be directed to determine whether the appellant knew that his acts were wrong, in particular whether, by reason of mental illness, he had been unable to reason with a moderate degree of calmness in relation to the moral quality of what he was doing. Those matters were relevant to the mental illness defence. Up to the conclusion of Dr Westmore’s evidence, the jury had not been told anything about substantial impairment and, no doubt for that reason, the questioning was not couched in the language of the partial defence. That feature of counsel’s questions was noted and commented upon by the trial judge at the close of the defence case. Notwithstanding the terminology of the questions, answers given by Dr Westmore were relevant to the partial defence, which was raised in cross‑examination of Dr Nielssen when he was called by the Crown in reply. Dr Westmore’s answers were the subject of submissions when the jury were addressed on the partial defence.

4. [197]

   In this appeal, the appellant relies upon the putative fresh evidence as bearing upon both the partial defence and the mental illness defence. The following written submission is made:

5. [198]

   It is not accurate to speak of the partial defence being “made out” by expert evidence. Such evidence may be relied upon to satisfy the jury or this Court that the appellant acted under a substantial impairment of his capacities but whether the impairment was of such a degree as to warrant a reduction of criminal liability to manslaughter would be for a jury to decide in a broad common-sense way, applying community standards. Also, the Court does not accept the submission that the appellant’s case at trial on the mental illness defence was “solid” or that the putative fresh evidence reduces the “gap” between Dr Westmore and Dr Nielssen. At trial, the defence was impeded both by Dr Nielssen’s evidence against it and by the fact that the appellant did not give a history, to any psychiatrist, of psychiatric symptoms having caused him to act as he did or having deprived him of understanding or self-control. In the additional evidence relied upon in the appeal, Dr Nielssen does not, even now, support the mental illness defence. Nor is there any further account from the appellant of any psychosis, or psychiatric symptoms causing him to behave as he did.

6. [199]

   It is necessary to set out and examine the expert opinions that Dr Nielssen gave at or prior to the trial, before identifying precisely what additional evidence is now sought to be relied upon. Only by reviewing the trial evidence can the Court determine whether the evidence tendered on the appeal may properly be characterised as “fresh” and whether its absence from the trial constituted a miscarriage of justice: Mickelberg v The Queen at 301 (Toohey and Gordon JJ); Abou-Chabake at [63].

7. [200]

   The evidence at trial and the “fresh” or otherwise character of the evidence now tendered on the appeal may usefully be considered first in relation to the partial defence. If the Court should find that the additional evidence cannot be characterised as fresh so far as it touches upon that topic and/or if the Court should find that the absence of the additional evidence did not give rise to a miscarriage of justice insofar as the trial was concerned with the partial defence, then that finding may resolve, or at least clarify, whether the additional evidence is fresh in relation to the complete defence of mental illness and/or whether its absence caused a miscarriage of justice in the trial in that respect.

8. [201]

   Under s 23A as it was in force when the homicides occurred, the expert evidence of Drs. Westmore and Nielssen at trial was relevant to whether, on 1 February 2003, the appellant’s capacity to:

   1. (1)

      understand events; or

   2. (2)

      to judge whether his actions were right or wrong; or

   3. (3)

      to control himself (collectively “the capacities”),

9. [202]

   As earlier noted at [29], Dr Westmore concluded that the appellant did not know whether his actions were right or wrong, thus providing evidence capable of sustaining the mental illness defence.

10. [203]

    Dr Nielssen referred to the factual issue as a question of whether the partial defence was or was not “available” to the appellant. If the jury were satisfied, on the balance of probabilities, of the fact of substantial impairment, then it was a matter for their judgment whether “the impairment was so substantial as to warrant liability for murder being reduced to manslaughter”.

11. [204]

    The verdicts returned, being guilty of murder on each of the three counts, do not disclose whether the jury were not satisfied as to the appellant having been substantially impaired in one of the relevant capacities or whether they concluded that substantial impairment was operative but not to a sufficient degree to justify reducing his criminal liability. The learned trial Judge so observed in his SJ as follows:

12. [205]

    Two alternative possibilities as to an underlying mental condition that may have caused the appellant to suffer from an abnormality of mind at the time of the homicides were explored in the evidence of Drs Westmore and Nielssen: first, that he may have been suffering from acute psychosis on 1 February 2003 at the time of the murders and, secondly, that he may have been affected by prodromal symptoms that were part of the development of a mental disorder that culminated in the frank onset of schizophrenia from no later than 9 February 2003.

13. [206]

    The evidence at trial included the notes of Dr Atherton, a psychiatry registrar at St Vincent’s Hospital, who examined the appellant on 2 February 2003. In that examination, the appellant gave no history of having experienced, up to that time, either psychotic symptoms or other prodromal symptoms of an impending psychosis. The notes included the following:

14. [207]

    There was evidence before the jury that on multiple occasions after 2 February 2003, commencing the next day, the appellant described psychotic and/or prodromal symptoms that he had experienced prior to the homicides. Dr McDonald, whose evidence has already been referred to briefly, gave evidence in the defence case of statements made by the appellant during a 30 minute examination on 3 February 2003. By reference to contemporaneous notes, he said this:

15. [208]

    Dr McDonald was unable to make a diagnosis on the basis of this single examination, but he said:

16. [209]

    Also on 3 February 2003, Dr O’Neill, a neurologist, examined the appellant. The doctor was called in the defence case and gave the following evidence by reading from his contemporaneous notes:

17. [210]

    Dr O’Neill had recorded the following impressions from his contact with the appellant on 3 February 2003:

18. [211]

    Through Dr McDonald, defence counsel tendered the notes of Dr Kay Wilhelm from 4 February 2003, referred to at [100] above. The notes included these entries:

19. [212]

    On 4 February Dr O’Neill recorded the following on a discharge referral form:

20. [213]

    The appellant was discharged from St Vincent’s Hospital that day into the custody of police, to be transported to Long Bay Corrections Centre on remand. Dr Susan Tomlinson provided a discharge letter addressed to a medical officer at Long Bay Prison Hospital, which included the following:

21. [214]

    On 9 February 2003 at the Prison Hospital Dr Ellis conducted an extended examination of the appellant. The results were recorded on five handwritten pages of notes, which set out the following history taken from the appellant:

22. [215]

    Dr Ellis recorded the results of a mental state examination and his impressions and diagnosis, which included the following:

23. [216]

    Dr Ellis immediately ordered commencement of the appellant on Risperidone, an antipsychotic indicated for schizophrenia. According to the doctor’s notes of 10 February 2003, the appellant’s wife, Ms Alicia Richards, phoned him and said she had not observed any unusual or psychotic symptoms in the appellant, such as voices or delusions. Otherwise, she confirmed the appellant’s history.

24. [217]

    In their evidence at trial both psychiatric experts accepted the correctness of Dr Ellis’ diagnosis as at 9 February 2003. They both accepted that the appellant experienced psychotic symptoms on that date and thereafter, and that he had, for over two years up to the date of trial, been treated in custody with antipsychotic medication as a schizophrenic patient.

25. [218]

    In his report to the Crown dated 27 July 2004, Dr Nielssen said that he diagnosed the appellant at that time as suffering “probable schizophrenic illness”. In his evidence in chief at trial, when asked whether he adhered to that view, Dr Nielssen said:

26. [219]

    Importantly, that was the probable diagnosis at the date of the report and at trial.

27. [220]

    Dr Nielssen gave evidence in chief of the history he had taken from the appellant in examinations on 29 June and 27 July 2004. That history, referred to in more detail below, included that the appellant said he had heard the voice of a young boy since September 2002, increasing over time up to 1 February 2003. The voice had asked him to do things and told him that he was being watched. He suspected that people outside his house were watching him and that he was being followed. He thought his house might be “bugged”. In the weeks prior to 1 February 2003, the voice prevented him from sleeping. He had thought that he was being watched by the television and that it was sending messages to him. Dr Nielssen gave the following answer concerning the basis for his probable diagnosis as at 27 July 2004:

28. [221]

    In cross-examination at trial, Dr Nielssen expressed a reservation about whether the appellant’s probable schizophrenic illness should be regarded as chronic, viewed prospectively from the date of the trial. That reservation was not significant having regard to his acceptance that the disorder was reliably diagnosed from 9 February 2003. He gave these answers in cross‑examination:

29. [222]

    The expert witnesses’ acceptance of Dr Ellis’ post-homicide diagnosis of psychotic schizophreniform disorder meant that the first step for the jury in resolving the factual issue in this part of the case was to determine whether the appellant was experiencing acute psychosis or prodromal symptoms of a schizophreniform disorder, eight days prior to Dr Ellis’ examination, when the homicides took place. The second step was for the jury to determine whether any acute psychosis or prodromal symptoms that he may have been experiencing at that earlier time substantially impaired his mental capacities thereby giving rise to the partial defence.

30. [223]

    In his pre-trial report to the Crown dated 27 July 2004, Dr Nielssen accepted that the appellant had an underlying psychotic illness at the time of the homicides that would likely have impaired the three capacities set out in the legislation. The relevant parts of that report are as follows:

31. [224]

    The appellant’s lawyers had a copy of that report prior to and during the trial. They cross-examined Dr Nielssen upon its contents. Nothing in it constitutes fresh evidence on the appeal.

32. [225]

    In his evidence in chief, Dr Nielssen in substance retracted his opinion that the appellant had been suffering from “an underlying psychotic illness” or auditory hallucinations, delusional beliefs or “acute psychosis” at the time of the homicides. The Crown prosecutor’s questions were directed to whether or not Dr Nielssen considered that the appellant had suffered from a mental illness, including hallucinatory symptoms, or delusional beliefs on 1 February 2003. When the doctor’s answers were negative, the prosecutor did not proceed to ask any questions about substantial impairment.

33. [226]

    In his evidence at trial Dr Nielssen recounted the history he had taken from the appellant in his examination on 29 June 2004, as follows:

34. [227]

    Dr Nielssen expressed scepticism about the reliability of the appellant’s history, as follows:

35. [228]

    At trial Dr Nielssen adhered to his probable diagnosis of the appellant, as at the date of his examination on 29 June 2004, namely, schizophrenic illness. He was not able to support an opinion that the appellant had suffered that or any other mental illness at the time of the homicides. Significantly, Dr Nielssen said that his inability to support such a conclusion was affected by unreliability of the appellant’s account of his pre-homicide symptoms, and the absence of any independent support for the presence of symptoms that would constitute a psychotic illness at that time.

36. [229]

    The following are extracts of the doctor’s evidence in chief adduced by the Crown prosecutor:

37. [230]

    Dr Nielssen’s answers during cross-examination by trial defence counsel confirmed his retraction of the opinion that the appellant suffered from a psychotic illness at the time of the homicides:

38. [231]

    As can be seen from the passage of Dr Nielssen’s July 2004 report quoted at [223] above, his conclusion that the appellant had suffered from a psychotic illness at the time of the homicides was not a mere assumption based upon subsequent hospital records and other psychiatrists’ diagnoses, nor was that conclusion qualified by any doubt about the reliability of the appellant’s description of pre-homicide symptoms.

39. [232]

    Generally, Dr Nielssen’s evidence given at trial and the additional evidence from him tendered on the appeal – consisting of his pre-trial report, his post-trial reports and his oral evidence at the appeal hearing – has been difficult to follow and has given rise to reservations about reliability because the doctor has, at a number of stages in his consideration of this case, failed to remind himself carefully of opinions that he expressed on earlier occasions, and has failed to confirm accurately what information was available to him when expressing previous opinions. It is understandable that Dr Nielssen would not have an immediate recall of such matters each time he has returned to the subject across many years. However, when he has proceeded to issue new reports and to give oral evidence without adequate review of the written records of what he has said in the past, contradiction and confusion have resulted.

40. [233]

    At trial Dr Nielssen agreed that when he wrote his July 2004 report he had concluded that all three faculties relevant to the partial defence would have been impaired and that, therefore, the defence may have been available to the appellant. In explanation of what was in “the St Vincent’s material” that he had seen after preparing his report, and which differed from the material he had seen prior thereto, Dr Nielssen said this:

41. [234]

    Dr Nielssen accepted at trial that the records of the examinations by Drs Wilhelm and McDonald were consistent with the appellant exhibiting symptoms of an acute psychotic illness on 3 and 4 February. His reason for retracting his conclusion of 27 July 2004, that the appellant had been psychotic on 1 February, was the revelation to him of Dr Atherton’s finding that there were no signs or symptoms of psychosis on 2 February. Dr Nielssen did not purport firmly to exclude acute psychosis at the time of the homicides, but was unable to maintain his earlier written opinion in support of that conclusion. The doctor’s reasoning is apparent from the following evidence:

42. [235]

    Referring to Dr Atherton’s notes of his examination of the appellant on 2 February 2003, Dr Nielssen said this in answer to defence counsel at the trial:

43. [236]

    The doctor’s departure from his pre-trial opinion (see [223] above]) could not accurately be characterised as a “little” change. His oral evidence, that he no longer found support for the appellant having suffered from a psychotic illness at the time of the homicides, was an abandonment of his earlier conclusion in the July 2004 report that the appellant was affected by such an illness, which, while not depriving him of an understanding of the nature, quality and wrongfulness of his acts so as to engage the mental illness defence, nevertheless impaired his capacities in the three domains specified in s 23A, and left the partial defence available to him.

44. [237]

    At trial Dr McDonald explained during the trial prodromal symptoms of a psychotic disorder in the following terms:

45. [238]

    Both Dr Westmore and Dr Nielssen accepted before the jury that the onset of psychosis in schizophrenia is not instantaneous, at least where it is not induced by drug intoxication or trauma, which the doctors did not consider relevant to the facts of the case. The following are extracts of Dr Nielssen’s evidence at trial, in cross-examination, concerning progress towards the onset of a diagnosable schizophreniform disorder (there is some repetition of the doctor’s evidence quoted at [229] and [234] above, as the evidence overlaps two subjects):

46. [239]

    The two doctors’ acceptance in general terms of the phenomenon of a prodrome was, on its own, an insufficient basis from which to infer that this specific individual experienced, at the time of the homicides, prodromal symptoms of any particular nature and/or severity. As Dr McDonald explained, prodromal symptoms are quite different from frank psychosis. The generalised evidence that there would likely have been a prodromal stage, and that the schizophrenia diagnosed on 9 February 2003 would not have sprung from nothing, would not have been expected, on its own, to satisfy the jury that by 1 February 2003 the appellant must have been suffering any particular symptoms of a mental illness, let alone that his inferred and undefined prodromal symptoms must have been such as to have impaired his capacities or deprived him of an understanding of the nature, quality or wrongfulness of his acts (for the purposes of the mental illness defence).

47. [240]

    Apart from the doctors’ evidence at trial that a prodrome usually occurs, the only other bases upon which they could give expert opinions about an underlying condition that may have impaired the appellant’s capacities on the night of 1 February 2003 were:

48. [241]

    As to (a), the evidence at trial of Ms Richards and Jean Adanguidi is summarised at [57]-[70]. To recap, the essentials were that from about two weeks after the appellant’s return from Benin, in June 2002, Ms Richards said that the appellant ceased to be fun-loving and easy to get on with as she had known him to be over the preceding three and a half years; that he withdrew from her and became uncommunicative; that he had nightmares, hardly slept, suffered deteriorating memory, became very vigilant and security conscious after a break-in to their home in December 2002 and that, on 10 January 2003, he uncharacteristically slapped one of their children. The appellant complained to Ms Richards of headaches and of pain in his eyes, particularly in January 2003. Jean Adanguidi said that after the appellant returned to Australia, in June 2002, he no longer made regular phone calls to Jean in Benin, as he had done before, and when he did speak on the phone in the months leading up to the homicides, he complained of nightmares, insomnia, headaches and rapid heartbeat.

49. [242]

    At trial Dr Nielssen’s responses in cross-examination to questions about the evidence of those witnesses included the following:

50. [243]

    In those answers Dr Nielssen clearly disclaimed an ability to express an opinion about the quality and severity of any prodromal symptoms that may have lain beneath the changes in the appellant’s behaviour that were observed in him by Ms Richards and Jean Adanguidi over the months preceding 1 February 2003. In the last answer he reiterated his inability to conclude that on 1 February 2003 the appellant’s symptoms included “hallucinations and voices” that affected his perception of events or his reasoning ability. The doctor’s consequent inability to give an affirmative opinion that the appellant’s capacities were substantially impaired, as the jury would have to find in order to give the appellant the benefit of the partial defence, was evident in the following further answers (again there is some repetition of evidence quoted above, because of the overlapping relevance to more than one subject):

51. [244]

    Reference has already been made (at [227]-[229]) to Dr Nielssen’s evidence that he did not regard the appellant’s post-homicide histories as sufficiently reliable to support an opinion that he suffered from acute psychosis at the time of the homicides. The same perception of unreliability prevented Dr Nielssen from relying upon the appellant’s account of what he experienced up to 1 February 2003 as a basis for concluding that prodromal symptoms of a lesser order than acute psychosis were nevertheless sufficient to impair the appellant’s capacities and provide a foundation for the partial defence. Without a reliable history from the appellant, Dr Nielssen could not express any expert opinion as to the nature or severity of any prodromal symptoms and therefore could not opine that they would have caused substantial impairment of any faculty.

52. [245]

    This impediment to Dr Nielssen forming an opinion in support of the partial defence, or the mental illness defence, was made explicit in his evidence at trial that the appellant did not assert to him that he was caused to act in the way that he did by any symptoms that he attributed to the period immediately before or during the homicides. Dr Nielssen’s evidence included the following:

53. [246]

    That evidence gave rise to a profound difficulty in the way of persuading the jury that the appellant was substantially impaired, in any relevant capacity, by any of the symptoms that he claimed to have suffered prior to his arrest, or that others had observed in him up to that time. Dr Westmore said that on only one occasion, on 24 March 2004, had the appellant suggested a connection between symptoms and his conduct, saying that “the voices were asking me to help Raymond [Shen]”. Dr Westmore did not regard that element of the appellant’s history as significant to his ultimate opinion. Apart from that inconsequential exception, the jury had no evidence that the appellant had ever asserted that any symptoms of mental disorder he may have been suffering had caused him to act, or interfered with his perception of circumstances, or disrupted his powers of reasoning or his understanding of right and wrong, or deprived him of self-control.

54. [247]

    The jury had evidence of the appellant’s detailed planning and preparation for the homicides, including that he had acquired night vision equipment and a gun. They had evidence of his careful execution of the plan, such as using security codes for access to the victims’ apartment and switching off the power to that and the adjoining apartments. The jury had evidence that the appellant asserted to Mr Shen shortly before committing the homicides that he was under duress from an Eastern European gang, that he needed money to pay a “Mascot cop” and that he had killed a pharmacist. After his arrest, he did not assert that he had acted upon any such delusional beliefs but denied involvement in killing the three victims and said he had been “set up”.

55. [248]

    The absence of any history from the appellant that pre-arrest symptoms had caused him to misperceive circumstances, or to misunderstand the wrongfulness of what he was doing, or to lose control of himself, left the psychiatric experts without any assertions from the appellant himself as to a relationship between any mental disorder he was suffering and the killings. That would inevitably have impressed the jury in a manner similar to the way in which it informed the following findings of Barr J in the SJ:

The Putative Fresh Evidence

1. [249]

   The putative fresh evidence consists of three reports of Dr Nielssen prepared after the trial at the request of the appellant’s solicitors dated 29 October 2006, 11 September 2007 and 29 December 2014, a report of Dr Large dated 10 September 2009, and a body of academic papers concerning the results of research into the statistical relationship between first episode schizophrenia and the commission of violent crimes, particularly homicide.

2. [250]

   In his report of 29 October 2006 Dr Nielssen stated that he had reinterviewed the appellant on 10 October and that he had considered, inter‑alia, the following material:

3. [251]

   Dr Nielssen summarised the evidence of Jean Adanguidi and Ms Richards as follows:

4. [252]

   Dr Nielssen’s “Further Opinion” was then given in the following terms, so far as relevant to the conviction ground of the appeal:

5. [253]

   It is not correct that the information from the appellant’s brother and wife was “additional” and “not available when [Dr Nielssen] gave evidence” at trial. Jean Adanguidi’s evidence about the appellant’s treatment at the psychiatric hospital in Benin during his early teens was to the same effect as what the appellant himself had provided to Dr Nielssen in June 2004, 10 months before the trial. That information had been recorded under the heading “Psychiatric history” in Dr Nielssen’s report of July 2004. Ms Richard’s evidence of the appellant’s deteriorating memory in the weeks before 1 February 2003 had been led in the Crown case prior to Dr Nielssen giving evidence. Dr Nielssen had read Ms Richards’ witness statement before preparing his July 2004 report. Prior to being called in reply, he was also provided by the Crown with an oral summary of her testimony. During cross-examination, defence counsel had put to Dr Nielssen the substance of Ms Richard’s evidence (see [242] above). Dr Nielssen told the jury that he had read the transcript of Dr Westmore’s evidence. Dr Westmore had recited the substance of Ms Richard’s evidence, at length, for the purpose of contextualising some of his answers. That was pointed out to Dr Nielssen during cross-examination in this Court, and he accepted that in fact Ms Richard’s evidence “must have been” available to him when he testified before the jury.

6. [254]

   In Dr Nielssen’s 29 October 2006 report, his opinions on the appellant’s diagnosis and prognosis at that date have no bearing on the issues that the jury had to decide and do not advance the present appeal. On the questions of whether at the time of the homicides the appellant lacked understanding of the nature, quality and wrongfulness of his acts (the mental health defence) and whether he suffered a significant impairment of any of the capacities specified in s 23A, the closest that this report goes to expressing any opinion at all is the portion emphasised in the passage quoted at [252] above, namely:

7. [255]

   Evidence of that opinion is not fresh merely because Dr Nielssen has expressed it on the basis of information that he says he only acquired after the trial. As explained above, that statement is not correct. Further, even if the information had not been provided to Dr Nielssen before he testified at trial, it could have been provided with reasonable diligence on the part of the appellant’s legal representatives and the opinion he subsequently gave on 29 October 2006 could have been elicited in cross-examination. The true position is that the information was available to Dr Nielssen and so much of it as the appellant’s counsel thought appropriate, was put to him and on that foundation he expressed the opinions that have been extracted from his trial evidence earlier in these reasons – which are unsupportive of either the mental health defence or the partial defence.

8. [256]

   Understood as new (rather than fresh) evidence, Dr Nielssen’s “further opinion” quoted at [252] is insufficiently cogent to satisfy this Court that the appellant’s capacities were substantially impaired. The Court is not satisfied that if this opinion had been presented to the jury they, acting reasonably, would have to have found substantial impairment, and would have to have proceeded to the second stage of the partial defence – the evaluative determination of whether the impairment was of an order that warranted reduction of criminal liability. Still less does Dr Nielssen’s further opinion persuade the Court that, if the jury had received it in the terms of his report of 29 October 2006, acting reasonably they would have been bound to find such a degree of impairment as to warrant verdicts of manslaughter.

9. [257]

   Several aspects of the opinion deprive it of cogency. First, it is expressed in opaque and imprecise terms. The only substantive conclusion is that the appellant “had a pre-existing mental illness and was in the early phase of a further episode of illness in the months before the offence”. What is the “mental illness” of which the appellant was having “a further episode”? Is this a reversion to Dr Nielssen’s opinion of July 2004, that at the time of the homicides the appellant had an “underlying psychotic illness” involving hallucinations and delusional beliefs and amounting to “acute psychosis” (see [223] above). That is the opinion that the doctor was unable to support at trial, for detailed reasons then given, including unreliability of the appellant’s history. If the doctor intends, by this report, to revert to his first opinion, by reference to information that he has had from the outset, then without coherent explanation the opinion can have no weight.

10. [258]

    One may also ask: what is meant by “a further episode of illness”? Dr Nielssen does not appear to be suggesting in his report of 29 October 2006 that the appellant had suffered from an episode of schizophrenia or any other mental illness prior to February 2003, relative to which his mental state at the time the homicides could have been “a further episode”. If Dr Nielssen did intend to make that suggestion, he has not identified any basis for it. His report expressly states that he does not rely upon Dr Agonkan’s certificate regarding the appellant’s hospitalisation in Benin during his early teens. Further, the information from Jean Adanguidi concerning that event does not establish that it was an episode of psychosis, nor that the appellant had a psychotic illness.

11. [259]

    Secondly, Dr Nielssen’s use of the expression “early phase of a further episode” conflates the distinct concepts of a prodromal phase and an episode of psychosis. The distinction was made clear to the jury in the evidence of Dr McDonald (see [237] above) and it has been elaborated to this Court in Dr Large’s report of 10 September 2009, tendered by the appellant as part of the further evidence. Dr Large’s report includes the following:

12. [260]

    In light of the above “well-established definitions”, Dr Nielssen’s October 2006 opinion that the appellant “was in the early phase of a further episode of illness in the months before the offence” is obscure. By those words, Dr Nielssen appears not to accept that the signs and symptoms found by Dr Ellis on 9 February 2003 constituted the appellant’s “first episode of schizophrenia” in Dr Large’s nomenclature. If Dr Nielssen means to say that this “further episode of illness” was a second episode of schizophrenia, then it is not apparent what is comprehended by “the early phase” of that second episode. The putative fresh evidence before the Court does not suggest that there may be a prodromal phase relative to a second episode, or that there are medically recognised typical symptoms of an “early phase” of a second episode.

13. [261]

    When asked about this during his oral evidence before this Court, Dr Nielssen said “I don’t know enough about the first one”, referring to the appellant’s hospitalisation in Benin for a mental disorder at the age of 13. He said that the schizophreniform disorder diagnosed by Dr Ellis on 9 February “was the first severe episode of unremitting psychosis because it’s persisted”, whereas he thought the appellant had recovered from the disorder for which he was treated in Benin, “whatever it was at the age of 13”, and that he had gone on to lead a normal life. Dr Nielssen’s October 2006 opinion remains obscure in the context of his additional oral evidence before this Court.

14. [262]

    Thirdly, the putative “Further Opinion” in the October 2006 report offers no expert opinion on the critical issue of whether the “early phase of a further episode of illness”, that Dr Nielssen attributes to the appellant, involved symptoms of a nature and severity that would have disturbed his mental functioning at the time of the homicides to the degree necessary for the partial defence to be available.

15. [263]

    Fourthly, the opinion is rendered highly doubtful and unreliable by the circumstance that Dr Nielssen says his departure from his opinion at trial is based upon new information that was not available at the time of the trial, whereas the information referred to was in fact known to the doctor when he gave evidence before the jury and, with that information before him, he expressed opinions in more detail than in the October 2006 report, adverse to the appellant’s claimed defences.

16. [264]

    The report of 29 October 2006 certainly would not justify setting aside the convictions if it were the only item of evidence additional to what was received in the trial. The effect of the report in conjunction with the other putative fresh evidence will be considered in conclusion when all items have been assessed individually.

17. [265]

    We note that our assessment of Dr Nielssen’s 29 October 2006 opinion is substantively the same as the assessment by this Court, differently constituted, in its judgment on the appellant’s sentence appeal.

18. [266]

    The putative fresh expert opinion evidence in Dr Nielssen’s report of 11 September 2007 is contained in the following paragraph (with numbers added for ease of reference):

19. [267]

    Those paragraphs are followed by a description of four changes of circumstance that Dr Nielssen says explain the “greater confidence” he now has in his opinion. Before turning to those explanations, it is necessary to observe that paragraph 4 and the first sentence of paragraph 5 above are incorrect. The extracts of Dr Nielssen’s trial evidence quoted above show that, while he then thought the appellant suffered from an abnormality of mind, he could not support an opinion that such abnormality substantially impaired any of the appellant’s capacities.

20. [268]

    When asked about this during evidence in chief on the hearing of the appeal, Dr Nielssen gave the following answers:

21. [269]

    The last answer is incorrect. In cross-examination before the jury, defence counsel asked Dr Nielssen directly about substantial impairment but he would not confirm the opinion in his July 2004 report that was favourable to the appellant.

22. [270]

    The abnormality Dr Nielssen recognised at trial consisted of symptoms consistent with the prodrome of schizophrenia. In paragraphs 1-3 of the September 2007 report his terms “emerging psychotic illness” and “early phase of psychotic illness” do not conform with the conceptual distinction between the prodrome and the first episode of psychotic illness, as reflected in the “well‑established definitions” explained by Dr Large. Dr Nielssen did not, in his evidence at trial, support a retrospective diagnosis that the appellant had a psychotic illness when the homicides were carried out. In the report of September 2007, he does not refer to that position at trial or state that he departs from it. His terms “emerging” and “early phase” must refer to the prodrome rather than to a commenced first episode of psychotic schizophrenic illness. In this Court, Dr Nielssen said that he was referring to either the prodrome or first episode psychosis.

23. [271]

    The putative fresh evidence from Dr Nielssen referred to in the above paragraphs and contained in the September 2007 report, is a partial reversion to his pre-trial report of July 2004, insofar as he supports substantial impairment of capacities. However, the newer report is based on a view that the appellant’s underlying condition was the prodrome of schizophrenia, rather than a “psychotic illness” or “acute psychosis” as concluded in July 2004.

24. [272]

    The four changes of circumstance by reference to which Dr Nielssen explains his acceptance, in September 2007, that the appellant’s capacities were substantially impaired are as follows (with headings added for reference):

25. [273]

    With respect to items (i) and (ii) above, it has already been noted that the St Vincent’s Hospital records and the evidence of Ms Richards were available to Dr Nielssen when he gave evidence before the jury. Insofar as his conclusions of September 2007 are based upon that information, the appellant was in a position to adduce the opinions on that basis at trial and they cannot be said to be fresh evidence. Further, Dr Nielssen’s September 2007 conclusion, that the appellant’s capacities were substantially impaired on 1 February 2003, lacks cogency so far as it rests upon the St Vincent’s Hospital records and evidence of Ms Richards because, with the same material before him at trial, the doctor said he could not be satisfied of a substantial degree of impairment.

26. [274]

    Item (iii) above of the changed circumstances, is the post-2005 course of the appellant’s schizophrenia. Insofar as Dr Nielssen seeks to explain his revised view of substantial impairment upon that basis, the opinion entirely lacks cogency. In the passages of his trial evidence quoted at [221] above, Dr Nielssen clearly accepted that the appellant had been reliably diagnosed with a schizophreniform disorder on 9 February 2003, and that, on the balance of probabilities, that diagnosis was still valid at the date of trial. He said that in reaching that conclusion he relied upon the medical records of assessment and treatment of the appellant in custody. Evidently his own examinations of the appellant in June and July 2004 had not disclosed any ground for rejecting the post-homicide, continuing diagnosis. The 2007 report does not explain how, in the period of two years since he gave evidence, the subsequent course of the appellant’s schizophrenia could have any bearing upon determining the nature and quality of his prodromal or first‑episode-psychotic symptoms at the time of the homicides, or upon the question of whether those symptoms would have caused substantial impairment. For this change of circumstance to be a credible basis for the revised opinion, some explanation would have to be given, because the proposition is counterintuitive.

27. [275]

    Item (iv) above of the developments said to have given rise to Dr Nielssen’s changed opinion on the partial defence, consists of research that has identified a statistical correlation between acts of serious violence and first episode psychosis in the perpetrators of such acts. In the highlighted portion of the above quoted passage of this report, Dr Nielssen suggests that acts of violence are statistically correlated to both the prodrome and first episode psychosis. In contrast, Dr Large understands the correlation to apply only to first episode psychosis, which, as earlier noted, he distinguishes from the prodrome. Dr Large’s view of the research is considered further below.

28. [276]

    In his oral evidence on the appeal Dr Nielssen said this:

29. [277]

    However, he acknowledged that the two research papers cited in his September 2007 report do not make specific reference to the prodromal phase. The doctor’s oral evidence to justify his reliance upon the research for a correlation between acts of violence and the prodrome of schizophrenia was not coherent or persuasive.

30. [278]

    The unsatisfactory state of the evidence about whether violence has been found to be correlated with prodromal symptoms as well as with first episode psychosis, or only correlated with the latter, is of little to no significance for the purposes of determining the appeal. The real problem for the appellant is the attempt to use a general statistical relationship to prove a diagnosis of, or to draw a conclusion concerning, an individual accused at the specific time at which he committed particular acts of violence.

31. [279]

    Understandably, the correlation identified in the studies leads to a scientific hypothesis of causality. The research does not constitute evidence that in any individual case the acts of violence were caused by the symptoms of mental disorder. Moreover, in a trial for murder the matters that must be established on the balance of probabilities to engage either the partial defence of substantial impairment or the complete defence of mental illness are much more exacting than mere causation in a general sense. Dr Nielssen does not purport to draw from the research any generally applicable mechanism of causation that is implied by the statistical correlation. He does not suggest that the research has identified that either prodromal symptoms or first episode psychosis will in all cases impair to a substantial degree any particular faculty, or that those symptoms will always deprive the affected person of an understanding of the nature, quality and/or wrongfulness of his or her violent acts. The research provides no cogent basis, even as a contributing factor, for Dr Nielssen’s revised opinion that, in the specific case of the appellant, his capacities were substantially impaired on 1 February 2003.

32. [280]

    In summary, the matters to which Dr Nielssen attributes his September 2007 opinion are either not post-trial developments (items (i) and (ii)) or they provide no relevant foundation for the new opinion (items (iii) and (iv)). The opinion in the report that the appellant’s capacities were substantially impaired is new evidence rather than fresh and it lacks cogency, being a departure from the opinion expressed at trial without coherent justification. On its own the report would not justify a conclusion that there has been any miscarriage of justice in the jury’s verdicts.

33. [281]

    In a further report for the appellant’s solicitors of 29 December 2014, Dr Nielssen concluded that by that date the appellant’s schizophrenia was in remission, although he continued to receive relatively low dose injections of antipsychotic medication. In this report, Dr Nielssen again referred to the research studies that he cited in September 2007. As background to his expression of opinion on the significance of the research, Dr Nielssen gave the following retrospective on the trial:

34. [282]

    As can be seen in the passages of trial evidence quoted earlier, this is not an accurate summary. Dr Westmore, disagreeing with Dr Nielssen, did consider that the defence of mental illness was open. Dr Westmore was not asked, in terms, about the partial defence of substantial impairment. Dr Nielssen did not accept that the appellant “had the defence of substantial impairment by abnormality of mind available to him because of the effect of emerging mental illness on his perception of events in his capacity to control his actions”. No such opinion was expressed orally by him to the jury.

35. [283]

    In his report of December 2014, Dr Nielssen made the following observations on the research:

36. [284]

    Those observations are affected by the considerations stated at [280] above, concerning Dr Nielssen’s September 2007 report. In December 2014 Dr Nielssen did not reiterate his 2007 opinion that the appellant’s capacities were substantially impaired. For reasons already given, the research is not an available or cogent foundation for any such expert psychiatric opinion concerning an individual accused. Nor would the research be independently admissible. A body of research giving rise to general scientific conclusions about a class of mentally disordered offenders and the statistical correlation between their offending and first episode psychotic symptoms (or prodromal symptoms, if the research goes that far), could not be received as evidence to prove causation with respect to the appellant, let alone to establish the legal criteria of s 23A or the mental illness defence.

37. [285]

    In his report of 10 September 2009, which was also put before the Court on the appeal as fresh evidence, Dr Large refers to the same research papers as cited by Dr Nielssen. The sub‑headings in Dr Large’s report, and the terms in which he summarises the research, are significant having regard to the distinction he draws between the prodrome of schizophrenia and first episode psychosis. Unlike Dr Nielssen, Dr Large understands the research as identifying a connection between violent conduct and first episode psychosis, but not prodromal symptoms:

38. [286]

    Dr Large concludes from the above and from other post-trial research that “there have been three advances in the scientific literature with respect to homicide by the mentally ill after 2007”, as follows:

39. [287]

    Those advances in the scientific literature are concerned with first episode schizophrenia, not with any relationship between prodromal symptoms and homicide. Dr Large considers the latter topic under a separate heading towards the end of his report, as follows:

40. [288]

    The highlighted portion is the only expression of scientific opinion about whether a person’s capacities may be substantially impaired (for the purposes of the partial defence) or whether the person may lack understanding of the nature, quality or wrongness of his or her acts (for the purposes of the mental illness defence). The report, including the highlighted passage, would not be admissible in proof of any of the requirements of either defence with respect to the appellant specifically, for the reasons already given in relation to Dr Nielssen’s reports of September 2007 and December 2014. Neither the symptoms suffered by the appellant on 1 February 2003, nor the effects of those symptoms upon his actions and understandings can be proved by evidence of a statistical correlation between acts of violence and mental disorders amongst a large sample of perpetrators.

Combined Effect of Additional Evidence – Partial Defence

1. [289]

   In this appeal, the combined force of all the putative fresh evidence relied on by the appellant is no greater than the force of the individual items. The research papers constitute material that was not available at the trial because the respective studies had not yet been carried out or reported upon. However, while those papers and any accompanying expert evidence explaining them constitute fresh evidence, the evidence does not support the partial defence of substantial impairment. For the same reason, the papers cannot support a finding of miscarriage of justice by reason that the results of this research were not available for tender in 2005. The changed opinions of Dr Nielssen are new evidence rather than fresh. Taken together, they are not sufficiently cogent to persuade the Court that the appellant has been wrongly convicted, or even that he has been denied a fair chance of acquittal as a result of Dr Nielssen not having expressed those post-trial opinions on substantial impairment to the jury.

Combined Effect of Additional Evidence – Mental Illness Defence

1. [290]

   Just as the post-trial research evidence is not capable of proving that the appellant suffered from any substantial impairment of his capacities, it is also not capable of proving that his mental disorder had the still more deleterious effect that would have to be proved on the balance of probabilities to sustain the mental health defence. As for Dr Nielssen’s post-trial opinions, they lack cogency to prove that the appellant lacked understanding of the nature, quality or wrongfulness of his acts, just as they lack cogency to prove substantial impairment of capacities. Indeed, the post-trial opinions of Dr Nielssen only purport to substantiate the availability of the partial defence, not the mental health defence. Dr Nielssen gave this evidence on the appeal:

2. [291]

   It follows from our earlier analyses and discussions that the additional evidence does not permit this Court to hold that there is any basis for the defence of mental illness to be established, nor that the additional evidence is new. Much less can it be concluded that there has been any miscarriage of justice in this respect.

3. [292]

   These conclusions mean that there is no need for the Court to consider the evidence taken on the appeal from Dr Greenberg, a specialist forensic psychiatrist. Dr Greenberg was not an expert called at the trial. He was retained by the Crown for the purposes of the appeal. The conclusions we have earlier recorded about the nature and quality of the evidence of Dr Nielssen took no account of the evidence of Dr Greenberg. Accordingly, it is unnecessary for the Court to consider the disputed issue about the admissibility of Dr Greenberg’s evidence or the way the Court is entitled to use it, if it is admitted.

4. [293]

   We have not been persuaded that there is any sound basis to uphold Ground 1 of the appeal grounds. It follows that the three convictions of murder should stand and not be set aside.

Ground 2 – The Sentence Ground

1. [294]

   In his report of 10 September 2009, Dr Large records the results of a number of specific studies and papers. The details of his report have been earlier set out at [285]. Relevantly for the purpose of sentence, he notes these conclusions:

   1. (1)

      in these studies of which Dr Nielssen and Dr Large were co‑authors, in NSW, there is a greatly increased rate of homicide in first-episode psychosis when compared to the rate in previously treated psychosis. The difference is 1 in 220 patients per year for first episode psychosis, namely those who have not previously been treated, compared to 1 in 10,000 patients for those who have had effective treatment;

   2. (2)

      a fourth paper of Dr Large’s in 2008 established epidemiologically that effective treatment with antipsychotic medication reduced the rate of homicide in mentally ill people. The study concluded that an earlier 1999 study to the opposite effect was erroneous; and

   3. (3)

      a study in Denmark found, in 2009, that untreated schizophrenia was associated with the highest rate of homicide.

2. [295]

   These descriptions of, and conclusions about these studies, which were unknown at the time of the sentencing (including the CCA judgment) were not challenged by the Crown in cross‑examination before us.

3. [296]

   In expressing his conclusions in the SJ about the reasons for the imposition of three life sentences, Barr J reached some factual conclusions about the appellant’s mental state. He said:

4. [297]

   Justice Barr, in considering the imposition of life sentences, identified these features as being the relevant conclusions:

5. [298]

   We note that the conclusion expressed in [83] reflects the terms used in s 61(1) of the Crimes (Sentencing Procedure) Act 1999.

6. [299]

   The parts of the SJ which have been the subject of added emphasis show that the question of the future course of the appellant’s mental illness, and his future danger to the community, necessitating community protection being considered as part of the sentencing process, were each considered and taken into account as being relevant by Barr J.

7. [300]

   The sentences of Barr J and the facts found by him were upheld by the Court of Criminal Appeal. In the CCA judgment, Hislop J (with whom Spigelman CJ and Sully J agreed) noted, that in some cases the existence of a mental illness, even though not a cause of the offences, may be a mitigating factor on sentence. However, his Honour concluded that the criminality inherent in the homicides was sufficient to justify the life sentences which were imposed: see [57] and [58] of the CCA judgment.

8. [301]

   The Court of Criminal Appeal did not permit the appellant to adduce evidence of the opinion of Dr Nielssen contained in his report of 29 October 2006, on the appeal to it.

9. [302]

   Relevantly for this ground of the appeal, Dr Nielssen in that report said:

10. [303]

    Justice Hislop rejected the attempts to tender the report of Dr Nielssen saying that his “… additional comments do not impact upon the question of the applicant’s capacity at the time of the murders” at [64]. He also concluded that had that evidence been admitted, it would not have led to the imposition of any different sentence and so, in accordance with s 6(3) of the Criminal Appeal Act 1912, assuming error had been shown, no other less severe sentence was warranted in law.

11. [304]

    However, the evidentiary position is not the same on this appeal. It cannot be doubted that the evidence of Dr Large set out at [290], setting out the results of the studies and papers, all of which post-dated the imposition of the three life sentences, falls into the category of “fresh evidence”. It was not evidence which was in existence at the relevant time, nor was it discoverable by reasonable diligence on the part of the appellant or his lawyers.

12. [305]

    By application of the various legal tests outlined earlier to the sentencing process undertaken by a Judge (rather than a jury considering its verdict), it seems that the question to be asked when dealing with Ground 2 is, where there is fresh evidence which is credible or plausible, as the evidence here is, whether there is a significant possibility that the sentencing Judge, acting reasonably, would have imposed a different sentence for each offence, which was less than the three life sentences which were imposed.

13. [306]

    Although the SJ has been referred to at length earlier, it is necessary to look at the proceedings on sentence to ensure that the whole context leading to the imposition of the life sentences can be understood.

14. [307]

    In its written submissions to the sentencing Judge, in addition to addressing the question of whether a mental illness existed which may have impacted upon the moral culpability of the appellant, the Crown submitted as follows:

15. [308]

    Counsel for the appellant tendered a number of expert reports on sentence.

16. [309]

    The first was a report of Dr Westmore of 2 May 2005. This report post‑dated the conviction. Dr Westmore said:

17. [310]

    As well, the appellant tendered the report of Dr Tony Mastroianni of 16 May 2005. That somewhat lengthy report included the following opinions:

18. [311]

    Dr Mastroianni is a specialist psychiatrist who, at the time he gave his report, was a consultant psychiatrist to the NSW Corrective Health, and was the appellant’s treating psychiatrist. He conducted a general adult and forensic psychiatry practice in Sydney.

19. [312]

    Counsel for the appellant, in her submissions on sentence, opposed the imposition of life sentences for the homicides of which the appellant had been convicted. In those submissions she invited the Court to accept the opinions as to the appellant’s prognosis, including the positive prognostic factors referred to in the expert report of Dr Mastroianni. Counsel submitted that the appellant’s risks of reoffending would be significantly reduced if his mental illness could be treated to the point where it went into remission. She submitted that the Court would accept Dr Westmore’s opinion that, if that occurred, the risk of the appellant’s reoffending would be “… no greater than the general population”.

20. [313]

    On sentence, Barr J needed to address the competing submissions by reference to these prominent issues, in addition to the usual sentencing considerations:

    1. (1)

       was the appellant at the time of the homicide suffering from a mental illness, if so, what was it and did it have any causal connection to those homicides or other relevance to his culpability;

    2. (2)

       how were the purposes of sentencing, namely adequate punishment, general and specific deterrence, community protection, rehabilitation, accountability, denunciation and recognition of the harm done to the community, to be balanced;

    3. (3)

       at the time of sentencing, was the appellant then suffering from a mental illness? If so, how would that impact upon the need for specific deterrence, rehabilitation and the protection of the community; and

    4. (4)

       in light of the Crown’s submissions, was this a case in which the level of culpability in the commission of the offences was so extreme that the community interest in retribution, punishment, community protection and deterrence would only be met through the imposition of a life sentence.

21. [314]

    Justice Barr resolved the first issue in [72] of the SJ by concluding that the evidence provided no recognisable connection “… causal or otherwise …” between the appellant’s state of mind and his commission of the acts causing the three deaths. For reasons which we have earlier explained, there is nothing in the evidence on this appeal which could suggest that this conclusion was wrong having regard to any additional evidence.

22. [315]

    The third issue, namely the mental illness, if any, suffered by the appellant at the time of sentencing, was a matter upon which Barr J could not reach any definite conclusion. At [81] of the SJ, he said that the evidence did not enable him to make any “confident findings” about the future course of the appellant’s illness or about whether the appellant would in the future constitute a danger to others. At [46] of the SJ, Barr J noted the provisional diagnosis of chronic schizophrenia which had been reached by Dr Mastroianni, which is referred to at [310] above. Barr J also noted the uncertainty in Dr Mastroianni’s opinion about the appellant’s future course.

23. [316]

    Accordingly, on the third issue, his Honour could not proceed to draw any conclusions relevant to sentencing about the appellant’s future dangerousness, his rehabilitation and the need for community protection.

24. [317]

    His Honour gave careful consideration to whether he should impose life sentences, as identified in the fourth issue above. The submissions of the Crown drew his attention to a number of authorities dealing with the imposition of life sentences. A number may be noticed.

25. [318]

    In R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409, Wood CJ at CL (with whom Giles JA and James J agreed) said at [102]-[103]:

26. [319]

    Justice Wood concluded in Harris at [105], that that matter was one of such heinousness “… with the consequence that the subjective circumstances could not displace the need for life sentences”.

27. [320]

    In R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557, Wood CJ at CL (with the agreement of Tobias JA and Hidden J) said at [52]:

28. [321]

    As Barr J said in the SJ, it was unnecessary to come to any conclusion about the appellant’s future. That was because, in accordance with authority, the offences were of great heinousness. They fell within the worst category of case, and the appellant’s criminality was so grave “… as to make it impossible for the Court …” to allow any reduction in sentence. In those circumstances, his Honour did not have to consider and weigh up, even if the evidence permitted him so to do, the subjective case of the appellant.

29. [322]

    The CCA judgment confirmed the correctness of this approach, Hislop J saying:

30. [323]

    It can be seen from the SJ and CCA judgment that this matter, and the sentences imposed, fell into a very small cohort of sentences where such was the heinousness of the conduct and the inherent criminality that the evidence with respect to the subjective factors of the appellant was simply irrelevant and properly to be disregarded, or given very little weight, in accordance with the two-step approach to cases involving the application of s 61(1) of the Crimes (Sentencing Procedure) Act.

31. [324]

    It follows from this analysis that as the fresh evidence was only directed at those subjective factors, regardless of its quality, it could have had no influence, assuming it existed at the time of sentence, on the sentences pronounced by Barr J which were upheld in the Court of Criminal Appeal.

32. [325]

    The question posed in this appeal, set out at [305], with respect to this ground, must be answered in the negative. That is to say that, notwithstanding the existence of fresh evidence which is credible or plausible, there is no possibility (let alone any significant possibility) that the sentencing Judge, acting reasonably, would have imposed a different and lesser sentence for each of the offences.

33. [326]

    For the avoidance of doubt, we have also concluded that the fresh evidence if given in the context of the sentencing proceedings would not have led to any doubt in the sentencing Judge’s mind as to the appropriateness of the sentences imposed.

Conclusion

1. [327]

   We have not been persuaded by the appellant that we should quash his three convictions, nor that the three life sentences which were imposed ought also be quashed and the proceedings remitted for either retrial or else resentence.

2. [328]

   We are of the view that the appeal should be dismissed.