Skelton v R

BEAZLEY P and DAVIES J: The appellant, Cameron Skelton, was found guilty after a trial before Culver DCJ and a jury of one count of reckless wounding, contrary to the Crimes Act 1900 (NSW), s 35(4). That offence was the alternative count on the indictment, the principal charge being a count of wounding with intent to cause grievous bodily harm contrary to the Crimes Act, s 33(1)(a). A conviction of the related offence of possessing a knife in a public place was also recorded but no further penalty was imposed.

The offence of reckless wounding carries a maximum penalty of imprisonment of 7 years. A standard non-parole period of 3 years applies: the Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A. The appellant was sentenced to a total term of imprisonment of 3 years, with a non-parole period of 18 months. The term was backdated to commence on 21 November 2014 so as to take account of the period of 119 days during which the appellant had been in custody prior to sentencing. Account was also taken of a period of 21 days in which the appellant was in residential rehabilitation. The non-parole period is thus to expire on 20 May 2016.

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

The charges related to the stabbing by the appellant of the victim, Blair Sidhu, at the Brighton Hotel on Oxford Street in the early hours of 23 September 2012. The incident was captured on the hotel’s CCTV system. The victim was, at that time, unknown to the appellant.

It was not at issue in the trial that the appellant stabbed Mr Sidhu and thereby wounded him. Rather, the question for the jury was whether the appellant had the requisite mental state to be found guilty of either the principal or alternative offence with which he was charged or whether he was not guilty by reason of the defence of mental illness.

The jury’s not guilty verdict on the principal charge meant that the jury was not satisfied that the appellant intended to cause the victim grievous bodily harm. The guilty verdict on the reckless wounding count meant that the jury considered that the appellant was reckless as to causing the victim actual bodily harm and that he had not established the defence of mental illness.

The appellant gave evidence that, on the day leading up to the incident, he had spent the day with his father building a studio at the back of their house. He had smoked cannabis during the day. He was attending the National Art School at the time and the school’s end of year ball was that evening. The appellant had initially planned not to go to the ball, but his friend Hugo Fisher had arrived at the house and told him he should go.

The appellant first went to Mr Fisher’s house, where, on Mr Fisher’s evidence, he had one beer before they went to the ball, arriving at about 8.30 pm. The appellant gave evidence that he drank at the ball, but that he was not a big drinker and did not like the drinks on offer. He said that he talked to a few people he knew but he mostly just sat there all night.

The appellant gave evidence that he picked up the knife at the ball. It was a folding knife. When cross-examined as to why he had picked it up, he answered “[b]ecause I usually pick things up and collect them. I work with found objects and sculpture”.

The appellant was not sure when he left the ball but recalled leaving with a friend and walking down Oxford Street to the Brighton Hotel. In cross-examination, he agreed that the Brighton Hotel was a place where he felt comfortable because it was a place where he used to drink with his friends.

The appellant said that he started to “blank out a bit” as he was walking to the hotel and that he could not recall entering the hotel or anything that happened there. He said that viewing the CCTV footage of the incident had not assisted him to recollect anything.

The victim had arrived at the hotel at about 1 am with his girlfriend, Lauren Brown, and a number of other friends. They had been drinking at various hotels around the city earlier that night, and he had taken half a cap of MDMA. At about 2:25 am the victim observed the appellant sitting across from him, a table away, and noticed that he “looked a bit crazy in the face, in the eyes”. He commented on the appellant to Ms Brown and to another friend. Ms Brown said it was unlikely that the comment to her was heard as it was very loud in the hotel. Another friend, Claudia Pearce, said the appellant “wouldn’t stop staring at [the victim]”.

The victim gave evidence that he went to the bar approximately 10 to 15 minutes after making the comment about the appellant. The appellant approached the victim and came “really close” to him. The victim pushed him away. Ms Brown gave evidence that the appellant put his arm around the victim’s neck and said something to him at which point they started pushing each other and “got into a bit of a fight”. Another witness, Ms Vareslija, said that “the dispute” between the appellant and the victim lasted about 20 seconds. As noted above, the incident was recorded on the hotel’s CCTV camera.

The victim was not immediately aware that anything serious had happened to him. However, when Ms Brown walked over to the victim, she noticed blood dripping on his shoes. She lifted his shirt and told him he had been stabbed. Ms Brown told the bartender to call the police and then went outside with the victim, who was beginning to lose consciousness.

Mr Richard Gold, the hotel’s security guard, entered the venue when he saw the panic light go on. He gave evidence that as he approached the appellant, the appellant tried to covertly pass the knife to his friend. Mr Gold grabbed the knife from the appellant and told him that he needed him to come outside with him. Mr Gold said that the appellant then told him to “throw him [the victim] out first, as he started it”, and then said, “you have to take him first or I’ll stab him again”. At that stage, Mr Gold had already taken possession of the knife.

Shortly thereafter, police officers arrived and the appellant was taken into custody. He spent three or four days in the mental health unit at Silverwater Correctional Centre before being placed with the general prison population. Dr Olav Nielssen, forensic psychiatrist, saw the appellant on 5 October 2012 and arranged for his admission to the Hills Clinic, a private psychiatric health service. On 9 October, the appellant was released on bail and spent three weeks as an inpatient at the Hills Clinic, where he saw Dr Edward Cassidy. He has continued to receive outpatient treatment from the Clinic.

The victim was taken by ambulance to St Vincent’s Hospital, having sustained a three-centimetre wound to his left abdominal area that penetrated to the muscle layers. The wound was closed with three stitches and he was released from hospital the next day.

At the time of the offence, the appellant was 21 years old and was in his second year at the National Art School. He was living with his parents. The appellant and a number of witnesses gave evidence that he was substantially introverted, rarely went out, did not enjoy large crowds of people, and was only comfortable with people he knew well.

The appellant had a history of mental health issues. He was diagnosed with attention deficit hyperactivity disorder (ADHD) at age 7 and was treated with various medications, principally dexamphetamine, until he was in about Year 10. He saw a number of psychiatrists and psychologists during his adolescence. In a report of Dr Melissa Barrett of the Black Dog Institute, dated 10 August 2011, a question was raised whether the appellant may have been suffering bipolar disorder. He was prescribed Zoloft for depression and mood disorder, but stopped taking it a few weeks before the incident.

The appellant was examined in detail on his use of drugs. He gave evidence that, in September 2012, his general daily consumption of cannabis was slightly over a gram per day, although in cross-examination he agreed that he was using half an ounce to an ounce (about 15 to 30 grams) per week. He also said that he had used LSD, ecstasy, amphetamines and cocaine in the past, but was not using them on the evening of the incident. He said that, in the period before September 2012, he was “using a lot more drugs, not just cannabis anymore, I was kind of doing a bit of everything and large quantities of it … self-medicating”. The jury were given a direction that the evidence of use of illegal drugs could not be used to impute dishonesty to the appellant or as evidence of a tendency to commit the offences with which he was charged.

The appellant gave evidence that he started experiencing paranoia from the end of Year 11. He said that his paranoia involved strangers and that he felt hostility from people. He said he would not go to places by himself. He said he did not discuss his paranoia with health professionals or his family prior to the incident. However, Dr Nielssen gave evidence that he had become aware from the medical records with which he had been provided that the appellant had been seeing his General Practitioner, Dr Telan, for various mental issues, including paranoia.

Mr Fisher and the appellant’s parents, Mr and Mrs Skelton, gave evidence that the appellant had become thinner, more reclusive and isolated in the period leading up to the offence. The appellant gave evidence that he had attempted to commit suicide a week before the incident, and that that was the second time he had done so. In that period, on 14 September 2012, the appellant saw Kathi Pauncz, psychologist. Ms Pauncz’s notes from that consultation were in evidence and recorded that the appellant had told her that the past year had made a big difference and that he did not want to be involved in the drug scene. In cross-examination, the appellant said that he would go to sessions with Ms Pauncz and “present a false life”.

Four medical experts were called:

All of the experts agreed that the appellant was suffering from a disease of the mind at the time of the incident.

Dr Cassidy diagnosed the appellant with schizophrenia during his time at the Hills Clinic. There was no dispute between the experts about the correctness of that diagnosis.

Dr Allnutt was of the opinion that the appellant “was likely depressed at the time [of the incident] and that would be sufficient to conclude that he had a disease of the mind”. He also gave evidence that the appellant was “likely paranoid” and that although he was “not entirely clear that [the appellant] was psychotic in the full sense of the term”, he “could not definitely rule that out either”.

Dr Westmore considered that the appellant was in the transition phase between the prodromal phase of schizophrenia and psychosis, or may have gone into psychosis, at the time of the incident.

Drs Allnutt, Westmore and Nielssen agreed that the appellant knew the nature and quality of his act in stabbing the victim.

In Dr Westmore’s opinion, the appellant was undoubtedly paranoid about the victim, but his amnesia precluded any determination of the extent or content of those views. Dr Nielssen agreed that it was likely that the appellant was generally paranoid at the time of the attack and that he experienced a “specific paranoid ideation” in relation to Mr Sidhu.

The question whether the appellant had the capacity to know that his actions in stabling the victim were wrongful caused the experts the most difficulty, particularly in the context of his amnesia.

Dr Allnutt considered that it was a “borderline situation” but that his position was “equivocal falling on the side that he likely maintained that capacity”.

Dr Westmore considered that, particularly on the basis of the “extremeness of [the appellant’s] behaviour”, a court might be able to come to the conclusion that he was compromised in his ability to reason in relation to his actions but that “a psychiatrist can’t say it because … [the psychiatrist] can’t get a history as to precisely what [the appellant] was thinking at the time”. Nevertheless, in his opinion, the appellant “on the balance of probabilities … was compromised to some degree”.

Dr Nielssen’s position was that:

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

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

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

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

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

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

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

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

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

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

The appellant complained that there was no proper factual foundation for those questions and the only evidence relating to them was that given by Mr Gold, the security guard, that, after the appellant and the victim were separated, the appellant had told Mr Gold that the victim had started it: see above at [15].

The appellant accepted that had the form of the first question above been different so as to ask, “had you planned before you stabbed the victim to claim that he had started it?”, it may have been unobjectionable. He contended however, that to put to a witness a positive proposition carried with it the suggestion that there was a basis for it in the evidence. In circumstances where that was not so, such a question was contrary to the Evidence Act, s 41 and contrary to fairness. The appellant contended that such questioning was confusing to a witness and delayed the process of trial, creating an extra burden on the witness and the court in considering what was appropriate and what was inappropriate in the questioning.

The appellant also contended that the cross-examination thereafter similarly offended the principles governing cross-examination. That cross-examination was as follows:

The appellant contended, in particular, that the bolded question above was improper, in that it did not have any foundation in the evidence and that the cross-examiner was merely “winging it”.

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

Upon resumption of the cross-examination, following this exchange, the Crown Prosecutor stated to the appellant that he had made a mistake in suggesting that the appellant had formed an intention to stab the victim as he was walking down Oxford Street. The trial judge then intervened and asked the appellant whether he understood what was being withdrawn and what was now been put to him.

Her Honour then invited trial counsel to let her know if there was an issue as to what she had said. Trial counsel responded that it might be better if the Crown Prosecutor withdrew the allegation as to having had any intention whilst walking down the street. The Crown Prosecutor did so.

The Crown Prosecutor then said to the appellant that what he was putting was that when the appellant was in the hotel he formed the intention to stab the victim. The appellant said that he understood what he was being asked, but that he could not say whether he agreed with that proposition or not.

Senior Counsel for the appellant submitted that the appellant was confused about the propositions being discussed. We do not agree. It is apparent from the transcript that the appellant knew what had been asked, what had been withdrawn and what the new question was that was being put to him. His response, that he could not say whether he agreed or not that he had the intention to stab the victim in the hotel is indicative of his understanding of the questioning and consistent with his evidence that he was totally amnesic about what occurred in the hotel.

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

The appellant submitted that this cross-examination was ambiguous and particularly complained that the bolded question was unfair and that he only agreed that he had planned to go to the ball based on Hugo’s evidence.

In our opinion, this is not a fair reading of the cross-examination, nor do we consider that it was it productive of any unfairness.

The appellant further complained of the cross-examination that occurred shortly thereafter, as follows:

The Crown accepted that second of these two questions was objectionable, although not the subject of any objection by trial counsel. The Crown submitted, however, that it was only one of two such objectionable questions asked and of which complaint is now made. It was submitted that in the course of a lengthy cross-examination, the asking of two impermissible questions was not so unfair such as to constitute a miscarriage of justice.

Compound questions are generally impermissible, not least because it is usually not possible to ascertain which part of the question has been answered: see Libke, above at [38]. The question in this case may not have had that vice, as it was, in effect, a ‘wrapped up’ summary of the previous questioning. But in any event, as the Crown has pointed out, an occasional objectionable question in the course of a lengthy cross-examination rarely, if ever, gives rise to a miscarriage of justice. It should be noted that the question in this case did not fall into any such particular category of questions on credit to which, arguably, different considerations apply.

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

Objection was taken to this question, but after the answer was given. The basis of the objection was that the question contained a false statement, in that the appellant’s evidence was that he had stopped taking Zoloft some time before seeing the psychologist. It was further submitted on the appeal that the compound question was unfair, in that it included the assertion that the appellant was well at the time that he had planned to go to the ball, when that was a live issue that was being litigated before the jury.

Whilst this last complaint is well based, the position at trial was that after objection was taken, there was argument on the point and the Crown asked the direct question whether the appellant was “on any medication at all on 23 September 2012” and a further question, whether the appellant was “well on 23 September 2012”. The appellant answered “no” to both questions.

There was an exchange between these two questions, where it would appear that the Crown Prosecutor was confused as to what answer had been given to the compound question: the answer had been answered in the negative, whereas the Crown Prosecutor appeared to recall the question having been answered in the affirmative. In the course of this exchange, the appellant said that the Crown Prosecutor had been “quite aggressive and it confuses me a bit”, to which the Crown Prosecutor responded, “I see, it’s my fault. I’m sorry”.

On the appeal, the appellant submitted that this was an example of the Crown Prosecutor engaging in sarcastic comment. It is, of course, not possible to know from the transcript of the tone in which the comment was made. However, the appellant’s answer was telling. He said “that’s all right”. It appears, therefore, that the appellant either did not interpret the comment as being sarcastic or, alternatively, had the measure of the Crown Prosecutor. In either case, in circumstances where the Crown Prosecutor broke up the relevant parts of the compound question into its component parts, we do not consider any unfairness arose out of the questioning of which the appellant complained.

The appellant also complained that the suggestion that he was well at that time was contrary to the psychiatric evidence so that there was no basis upon which this question ought properly have been asked. However, the appellant conceded that there was a basis upon which this question could be asked, given that the context of the questioning related to his consultation with the psychologist, Ms Pauncz, who had suggested in her report the appellant was well at the time that she saw him, approximately a week before the stabbing incident subject of the charge.

A similar submission was made about the sarcasm inherent in the Crown Prosecutor’s question “[a]re you serious?” when the appellant said that he could not remember whether in September 2012 he had decided to “vacate the drug scene”. This questioning was also based upon what Ms Pauncz had recorded in her report as the appellant had told her.

This submission also suffers from the difficulty that it is not possible to know whether the tone in which the comment was made was sarcastic, or reflective of surprise at the answer. Further, there was no objection by trial counsel to this or the questions which immediately followed. It was not until some pages further on in the transcript that trial counsel made a more general complaint of unfairness in the questioning having regard to the evidence that the appellant had given in his examination in chief. The trial judge pointed out that the Crown Prosecutor was entitled to test inconsistencies in the evidence.

Argument then proceeded in the absence of the jury. In particular, trial counsel complained that the cross-examination, when it related to previous evidence, had been “very fast”, “unduly aggressive” and that “nearly every answer is tagged with a comment”.

Her Honour rejected these complaints, although she noted that the Crown Prosecutor had heard the concerns raised and would no doubt “accommodate them”. Her Honour was in the best position to make that determination. To the extent that this Court is able to make any assessment of the complaint, the transcript does not bear out the complaint, as her Honour correctly observed, that “nearly every answer was tagged with a comment”. We consider that there is no substance in these submissions.

Another compound question was identified when the Crown Prosecutor asked “[y]ou were well, healthy and had decided to abandon the drug scene?”, to which the appellant responded “[n]o”. The comment made above at [58] likewise applies to the complaint about this question.

The exchange complained of on this topic was as follows:

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

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

The cross-examination on this point included the following exchange:

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

As the appellant accepted, the Crown Prosecutor was entitled to test the evidence on auditory hallucinations, which was at least potentially conflicting. However, he contended that the way the questioning occurred resulted in a degree of complexity which made it difficult for the appellant on an important issue.

It is true that the questioning on this topic was, at times, complex, and that the transcript indicates that the appellant may have found it confusing. However, it also demonstrates that he understood the core proposition being put to him, which was that the two statements were inconsistent. He attempted to answer that proposition. To the extent that his answers required further clarification, that opportunity was potentially available in re-examination. In those circumstances, no unfairness arose by reason of the questioning on auditory hallucinations.

The appellant had told Dr Allnutt that he had not taken any drugs, including cannabis, on the day of the stabbing incident. His evidence to the jury was to the contrary. The appellant accepted that the Crown Prosecutor was entitled to cross-examine on this inconsistency. Again, the complaint made related to the manner in which the cross-examination was undertaken.

One, if not the most, significant complaint made of the cross-examination is that it misrepresented the appellant’s evidence in chief. In his evidence in chief, the appellant said that he believed he would have smoked cannabis during the course of the day of the incident. He was asked what was his “general daily consumption, at about that time in September 2012, of cannabis”. The appellant said that that that it was “slightly over a gram during the day”, which he broke down to being “around 20, 30 [cones] maybe, throughout the entire day”.

In cross-examination, the appellant was asked:

The appellant stated that he thought that was “out of context” and that he had said he “smoked 20 or 30 cones a day, like daily not that day”. The appellant, exhibiting an accurate recall of his evidence two days previously, said he did not think he had been asked how much he had “smoked on that day”. The Crown Prosecutor read an additional part of his evidence to the appellant and then posed the question, “[n]ow do you want to change the answer that you gave a minute ago?”.

There was an objection and short argument, after which her Honour pointed out that the appellant’s answer on which he was being cross-examined had related to his general consumption of cannabis. At that point, the Crown Prosecutor withdrew the question. On the appeal, the appellant complained that the question had only been withdrawn “after a struggle”, that is, after objection was taken.

No unfairness has been shown in this part of the cross-examination. The appellant had remembered his evidence accurately. When the Crown Prosecutor challenged the appellant, trial counsel, as it was his function, rightly objected. The trial judge, as was required of her, dealt with the objection and pointed out the Crown Prosecutor the error in his question and the Crown Prosecutor withdrew the question.

The next complaint related to a series of questions which caused the appellant to state that he was becoming “confused”. The questioning again related to the appellant having told Dr Allnutt that he had not taken “illicit drugs” on the day of the incident. He was asked whether he was hiding something from Dr Allnutt. The appellant said he was not and that he “must have been confused” when he told Dr Allnutt something that was not correct. He suggested his confusion might have been due to the Seroquel.

The Crown Prosecutor then asked the following two questions (although not sequentially):

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

There is no doubt that the two questions quoted above at [84] were at least confusing, and inaccurate, if they were intended to ask whether it was the position that the appellant had not smoked illicit drugs on the day of the incident. However, if they were intended to relate to what the appellant told Dr Allnutt, the questions were accurate, but confusing. The appellant realised the confusion and made it clear that he had smoked illicit drugs on the day of the incident.

The trial judge again appropriately intervened and suggested to the Crown Prosecutor that he commence with a proposition at a time. She also informed the appellant that if he needed to pause before answering he could do so.

There is no doubt that it would have been better had the cross-examination flowed smoothly and without the occasional mistaken question and the compound questions of which complaint is made. However, on each occasion that there was some uncertainty or confusion or error in the questioning, the trial judge dealt with the matter appropriately. To the extent that there were compound questions, that has also been dealt with that above.

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

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

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

The last question was reformulated in terms:

There was nothing objectionable or impermissible in the question as reformulated, which involved a testing of the appellant’s credit.

There was a further exchange where the Crown Prosecutor asked the appellant whether he wanted “to answer [the] question”. An objection was taken and the trial judge, in effect, counselled the Crown Prosecutor that there had been an attempt to answer the question. Her Honour asked the Crown Prosecutor whether he wished to raise another question, at which point the Crown said that he would “move on”. In our opinion, this was an appropriate management of the trial and the cross-examination by her Honour. In those circumstances, no unfairness to the appellant arose.

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

Ground 1 of the appeal should be dismissed.

The appellant submitted that the trial judge failed to adequately address the jury on the second branch of the M’Naghten test. He submitted that in particular, her Honour failed to explain that his capacity to understand the wrongfulness of his actions did not turn upon whether he knew his actions were illegal.

As the appellant did not request any further or other direction in respect of the mental illness defence at trial, leave is required to raise this ground of appeal pursuant to the Criminal Appeal Rules, r 4.

It is well established that the requirements of r 4 are not mere technicalities and that the grant of leave is not lightly given: ARS v R [2011] NSWCCA 266 per Bathurst CJ at [148]. The Chief Justice observed that although a failure to seek a further direction at trial may be explicable:

In Jubraeel v R [2015] NSWCCA 131, at [24], Macfarlan JA stated that in order for leave to be granted under r 4, an appellant was required to satisfy the court that the failure to give a particular direction had caused a miscarriage of justice or at least that there was a possibility that that was the case.

The appellant submitted that as the trial judge was obliged to properly direct the jury on the elements of the defence mental illness and given that there was no conceivable tactical reason for trial counsel to decline to ask for the direction, the grant of leave was justified.

The Crown objected to the grant of leave, contending that the trial judge’s directions to the jury were adequate.

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

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

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

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

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

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

The appellant contended that her Honour erred in failing to direct the jury that the “second branch” of the M’Naghten test, that is, that the appellant did not know that his actions were wrong, was not concerned with whether he knew that his actions were legally wrong. In other words, the appellant contended that the directions failed to distinguish between whether he knew his actions were legally wrong and whether he knew his actions were wrong according to the ordinary standards of reasonable people in the community. He submitted that the omission to give this explanation meant that the direction was not tailored to the circumstances of the case.

The appellant contended that in Stapleton v R [1952] HCA 56; 86 CLR 358 the High Court (Dixon CJ, Webb and Kitto JJ) affirmed that the relevant test under the M’Naghten rules was whether the accused knew that his actions wrong according to the ordinary principles of reasonable men, not whether he knew that it was wrong because it was contrary to law. The Court, at 370 and 375, reasoned as follows:

The appellant submitted that in this case, the jury could not properly apply the test to the evidence without an appreciation of the distinction between capacity to understand wrongfulness and knowledge of illegality. He contended that this issue was raised in that aspect of the evidence that related to him having passed the knife to another person after the stabbing. On the Crown case, this exhibited a consciousness of guilt. It was also the subject of cross-examination of the appellant and of expert psychiatric evidence.

The appellant had accepted that he knew that it was illegal to carry a knife in public place, but he did not concede that he knew at the relevant time that the stabbing was morally wrong. His response to this questioning in cross-examination that that he could not say that he knew he had “done something terribly wrong with that knife” or that stabbing was the wrong thing to do.

Drs Allnutt, Westmore and Nielssen all accepted that passing a knife to another person could be consistent with the appellant knowing that what he had done was wrong. However, as they each explained, a mentally ill person often committed an act of violence knowing that it was wrong in the legal sense. What was relevant psychiatrically, however, was whether the person understood their act was wrong in the moral sense. Dr Westmore explained:

The difficulty in this case was that because of the appellant’s amnesia in respect of the incident it was not possible to know what he was thinking.

Dr Nielssen was of the opinion that the appellant’s emerging mental illness deprived him of the ability to reason with any composure about the wrongful action. Dr Nielssen was also of the opinion that the appellant had acted under a delusional belief that he was under threat from the victim. However, Dr Nielssen agreed that the fact of passing the knife and of telling the security guard that the victim “started it” was consistent with knowledge that he was in some kind of trouble and one possible explanation for this behaviour was it the appellant knew he had done something wrong and wanted to escape from it.

The appellant submitted that given his amnesia, the cross-examination of Dr Nielssen failed to draw the distinction between knowledge of wrongfulness and knowledge of the illegality.

The Crown submitted that Stapleton was not authority that a direction had to be given in the terms for which the appellant now contended, but rather was to be understood in the context of the direction that had been given to the jury in that case. That direction had been in the following terms:

In our opinion, Stapleton is not authority for the proposition that a jury is to be directed that the test for whether the person knew his actions were wrong was not concerned with whether the person knew that his actions were legally wrong.

As the Crown has explained, the direction that was given in Stapleton suggested that the relevant test was whether the person knew that what had been done was legally wrong. That was a test that had been applied in the English decision R v Windle (1952) 2 QB 826. The High Court in Stapleton, after extensively reviewing the authorities, determined that that decision should not be followed. It was in that context that the Court made the observation at 375 upon which the appellant relied.

The High Court had earlier observed, at 367, that:

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

In this case, there was no such wrong direction as had been given by the trial judge in Stapleton. Further, as the above passage makes clear, even in Stapleton, that wrong direction would not have been sufficient for the appeal to succeed. There were other grounds in the case that supported the appeal.

In our opinion, the trial judge’s directions were adequate. Leave to raise this ground of appeal should be refused.

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

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

By way of overall submission, the appellant submitted that the trial judge, in sentencing him, reduced his mental illness to something of insignificance.

In the remarks on sentence, the trial judge observed, at 4, that the offences of the nature of which the appellant was convicted “generally speaking are serious” and that in this case the use of a knife to inflict the wound made the offence “particularly serious” and ordinarily called for a strong measure of general deterrence in the sentencing process. Her Honour, at 5, considered that wounding itself was relatively serious. Her Honour further observed that a person’s mental condition was not relevant to the assessment of the objective circumstances of the purpose of applying standard non-parole period provisions: Muldrock v R [2011] HCA 39; 244 CLR 120.

Her Honour observed, at 7, that by finding the appellant guilty of reckless wounding, the jury were satisfied beyond a reasonable doubt that he realised he might possibly cause actual bodily harm to the victim and yet went ahead and stabbed him. Her Honour commented that evidence of mental illness did not give rise to a reasonable doubt in that regard. Her Honour also observed, at 8, that the paranoia from which the appellant was suffering “was not to the extent that it was a psychosis that negated his capacity to know the wrongfulness of his actions”. No complaint is made in respect of these remarks.

Her Honour, however, made four observations which are challenged by the appellant as involving error.

First, her Honour considered that, as the jury were not satisfied of the defence of mental illness, it could be concluded that they rejected the reasonable possibility that the appellant was delusional, insofar as he had an inability to reason right from wrong.

Her Honour stated that this was because an aspect of the defence of mental illness was that the appellant did not know it was wrong according to the ordinary standards of reasonable people in the community. The appellant challenges the correctness of this observation.

Secondly, her Honour stated that the jury verdict rejected the conclusion that the appellant was impaired in appreciating the nature of physical quality of the stabbing or in knowing that it was wrong according to ordinary standards of reasonable people in the community.

Thirdly, her Honour stated that the jury verdict rejected the reasonable possibility that the appellant was psychotic in a way that prevented him from knowing the nature or physical quality of the stabbing or from knowing that it was wrong according to the ordinary standards of reasonable people in our community.

Fourthly, her Honour stated that the expert evidence regarding mental health, when considered in the context of the jury verdict, gave rise to the conclusion that the appellant was probably paranoid at the time of the offence but not to an extent as to prevent him appreciating the nature of the offence and the fact that it was wrong.

We agree with the appellant that the first and second of these comments revealed error. The fact that the jury did not accept the defence of mental illness meant that they were not satisfied on the balance of probabilities that the appellant’s thinking was compromised to the point where he did not know the difference between right and wrong.

Her Honour, by reference to the decisions of this Court in R v Israil [2002] NSWCCA 255 and R v Z [2006] NSWCCA 342, discussed the principles that govern the sentencing of a person suffering from a mental illness which was not sufficient to constitute a defence. In Israil Spigelman CJ stated, at [23]:

Her Honour also rejected, consistent with authority, the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability: Hassan v R [2010] VSC 352 at [21]; GWM v R [2012] NSWCCA 240 at [82]; and ZZ v R [2013] NSWCCA at [110]. Her Honour remarked that it was difficult to say in this case the extent to which the appellant’s paranoia as opposed to any intoxication contributed to the offending conduct, but considered that it was the only compelling explanation and noted that there was evidence of increasing paranoia in the months prior to the commission of the offence.

Her Honour concluded, therefore, that the appellant’s moral culpability was reduced by virtue of his mental health. Her Honour, in observations which are also challenged, continued:

In my opinion, these last remarks constitute error. If the appellant “did not fully appreciate his actions were wrong”, the defence of mental illness would have been made out. Whilst it is correct that the surreptitious passing of the knife was evidence upon which the jury could have determined that the appellant had some understanding that what he did was wrong and provided a basis in the evidence for rejecting the defence, it was not evidence that his impairment in respect of his ability to know his actions were wrongful was “not great at all, or even significant”. The psychiatric evidence was uniformly to the opposite effect, and the jury verdict left open the possibility that the appellant was impaired in that ability to some degree.

The principles that govern the assessment of the impact that a mental illness may have upon the sentence to be imposed upon a particular accused were discussed in depth in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. In that case, McClellan CJ at CL, at [177], held:

As the discussion in De La Rosa makes clear, where a person’s mental health contributes in in a material way to the offending conduct, the person’s moral culpability may be reduced. In our opinion, the effect of the four passages of the remarks on sentence of which complaint is made, and her Honour’s conclusion reproduced at [138], which, in any event, contained a misstatement of the law, demonstrated that she failed to adequately consider the extent of the appellant’s mental condition. This was so, notwithstanding that her Honour accepted that the appellant was probably paranoid at the time that he committed the offence. The appellant’s submissions on this aspect of the appeal against sentence should be accepted.

The appellant further complained that her Honour erred in finding that general deterrence was relevant to the sentence that ought to be imposed. The appellant also contended that in determining that general deterrence was applicable to the sentencing process that she was undertaking, the trial judge made three additional errors.

First, the appellant contended that her Honour erred in stating that he had picked up the knife and put it in his pocket where he kept it knowing that he was going to the hotel. Her Honour considered that that bore an integral connection with the offence. The appellant submitted, correctly, that that observation was not established by the evidence.

Secondly, her Honour repeated the error to which reference has already been made, that the appellant “fully knew that what he was doing was wrong, as evidenced by the attempt to hand the knife to somebody else”.

Thirdly, her Honour found that the appellant realised the possibility of causing actual bodily harm to the victim, but nonetheless persisted in stabbing him. Whilst that observation was properly made by her Honour, the appellant submitted that it was not sufficient of itself to make general deterrence an appropriate consideration in the sentencing process.

In our opinion, this was a case where, as was observed in De La Rosa, general deterrence had no real role to play in the sentencing process. As was said by Young CJ in R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported):

In our opinion, as the trial judge erred in the sentencing process in the respects to which we have thus far referred, the Court is required to exercise the sentencing discretion afresh to determine whether some other sentence which is less severe is warranted and should have been imposed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. Before embarking on that process, it is necessary to consider ground 4. We would only add that having regard to the conclusion at which we have arrived, it has not been necessary to consider the appellant’s further complaints about the sentencing process.

The appellant had offered to plead guilty to reckless wounding in the Local Court on 4 April 2013, on condition that the matter be finalised in that Court. This offer was rejected and the appellant was committed for trial in the District Court. In July 2013, he made a further offer to plead guilty to reckless wounding, this time in its indictable form before the District Court. That offer was also rejected. A further offer to plead guilty to reckless wounding was made on 17 November 2014, two days before the appellant was arraigned before the jury.

Her Honour, in sentencing the appellant, considered that it was not appropriate to give a full discount for the offers of the plea, but considered that fairness dictated that a discount of 15 per cent ought to be allowed.

The question is then whether her Honour erred in only allowing a discount of 15 per cent for the offer of pleas of guilty. Her Honour referred, inter alia, to Morton v R [2014] NSWCCA 8; and R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357. Whilst acknowledging that there is no automatic entitlement to a discount of 25 per cent for an early plea, the appellant submitted, however, that her Honour, in relying upon the authorities to which we have referred, failed to recognise that that the question in this case was different from those cases in that here, the case had proceeded to trial on a more serious charge and he had ultimately been found guilty of the alternative offence to which he had offered to plead.

The appellant submitted that in R v Oinonen [1999] NSWCCA 310; and R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 (the latter cited in Morton as her Honour had noted), it had been held that an offender should be given the benefit of the utilitarian value of an offer to plead guilty to the offence of which ultimately convicted. Thus, in Cardoso, Hidden J stated, at [19]:

We do not consider that much weight (if any) should be attached to the conditional offer to plead to the summary form of the offence. However, greater allowance should have been made for the utilitarian value of the appellant’s offer to plead guilty to the indictable offence. For that reason, we would also allow ground 4 of the appeal. In our opinion, the plea to which full regard ought to be had was that made in July 2013 and that an appropriate discount for the utilitarian value of the plea was in the order of 20 per cent.

We have not found it necessary to set out the appellant’s personal circumstances or to further refer to his mental health history. Nor have we found it necessary to consider whether her Honour erred in the manner in which she had regard to whether the appellant’s period in custody would be more onerous.

Brief reference should be made, however, to the affidavit evidence, tendered at the hearing against the possibility that he should be resentenced by this Court. In an affidavit sworn on 6 November 2015, Bryan Wrench, solicitor, deposed as to difficulties faced by the appellant in receiving treatment in custody, in that he had had difficulties in obtaining his medication and had not been seen by a psychiatrist since his sentencing. Mr Wrench also gave evidence of difficulties in obtaining a mental health report from Justice Health. As at the day on which the appellant was sentenced, no such report was available.

Annexed to the affidavit was a copy of the appellant’s Bachelor of Fine Art (Honours) degree, which he completed in custody, and a highly commendatory reference from an academic at the National Art School. Mr Wrench also gave evidence in relation to what the appellant would do on release. He deposed that the appellant’s parents would undertake his care and support as had been the case with previous bail conditions, that he would continue to see his treating psychiatrist, Dr Cassidy, and that he would comply with a management plan outlined by Dr Allnutt, which was annexed to the affidavit.

On 30 November 2015, pursuant to orders made at the hearing, the Crown filed an affidavit of Jennifer Ramsay, solicitor with the carriage of the matter in the Office of the Director of Public Prosecutions, sworn on that date, which annexed a copy of the appellant’s Justice Health records. Those records broadly confirmed difficulties the appellant had in obtaining treatment in custody, including difficulties in obtaining medication. In particular, the appellant had seen a mental health nurse practitioner and a general practitioner, but not a psychiatrist, while in custody.

In resentencing the appellant, we have had regard to the seriousness of the offence, which was violent and unprovoked and resulted in a wound to the victim which penetrated to the muscle layer of the abdomen, albeit that the wound appears to have had no long-term effects. We have found that the appellant’s moral culpability was reduced by his mental state at the time of the stabbing. Further, we consider that he should be given the benefit of a discount of approximately 20 per cent for his offer to plead guilty. Taking into account those factors, we consider that the appropriate head sentence is 2 years and 6 months.

Having regard to the appellant’s subjective circumstances, including his mental health and in particular the fact that the conditions of his imprisonment have been particularly onerous by reason of his mental health, we consider that special circumstances exist such that it is appropriate to vary the statutory ratio between the appellant’s head sentence and the non-parole period pursuant to the Crimes (Sentencing Procedure) Act, s 44. We would impose a non-parole period of 13 months. In imposing this period, we acknowledge that it involves a substantial departure from the statutory ratio specified by s 44. However, we consider that that is the appropriate period given that the appellant’s mental illness requires more specialised treatment than he is presently receiving.

The commencement of the sentence must be backdated to take account of the 119 days that the appellant had spent in custody prior to sentencing by the trial judge. We also make an additional allowance of 12 days to take into account the 21 days that the appellant spent on bail but in rehabilitation: see R v Anderson [2012] NSWCCA 175 per Davies J (Allsop P and Campbell J agreeing) at [41]-[42]. The appellant was sentenced by the trial judge on 31 March 2015. The appropriate date on which the sentence should commence is therefore 21 November 2014. The first day upon which the appellant is eligible to be released to parole is therefore 21 December 2015.

We propose the following orders:

R S HULME AJ: In this matter I have had the advantage of reading the orders proposed by Beazley P and Davies J and their Honours’ reasons. I agree with their conclusions concerning ground 2 and with their remarks concerning the sentence to be imposed if the appeal against conviction fails. However, I do not agree with their Honours concerning ground 1. In my view the ground is made out and the Appellant’s conviction should be quashed.

Leaving aside the issue of intent which the jury found that the Crown had not established, the Appellant’s defence was insanity, a topic on which he bore the onus of proof. The defence was undoubtedly assisted by the evidence of psychiatrists, but very relevant to it was the accuracy of what the Appellant had told them. His case was not assisted by the fact that, as he said, he had no memory for many of the events on the night in which the stabbing occurred, but, be that as it may, his credibility and the jury’s opinion of him was important.

Necessarily involved in such issues is the accuracy of what he said but equally important is the impression he created. Any witness, particularly an accused, is liable to be hampered in creating a favourable impression if questions are unfair or indeed if there is any other unfairness, or departures from the dictates of a proper trial, while he is giving evidence.

In my view there were such departures in this case. They took a variety of forms.

Of course I do not suggest that every error in or departure from proper conduct will make a trial unfair. Furthermore, often a question can be withdrawn or an error corrected in circumstances where the conclusion becomes inevitable that the question or error can have had no effect. Even when that does not occur, one can commonly conclude that in the context of the totality of issues, an error pales into insignificance. However, I feel unable to so conclude that the number and nature of errors in this case can be so regarded.

The substance of the complaint in ground 1 was that the cross-examination of the Appellant was unfair and involved:

The Appellant’s evidence in chief extended for some 45 pages and actual cross-examination for some 60 pages. Those 60 pages occurred in 4 periods spread over 3 days and while some of the interruptions may have been necessary, they cannot have helped the jury or the Appellant. However, as the significance of the interruptions is unknown, I put them aside.

It is impossible to refer to all of the errors I see without making these reasons unduly long and I shall content myself with examples. Some of the specific matters to which Beazley P and Davies J have adverted provide further examples of the suggested faults. Albeit at the cost of repetition, passages which lead me to the view that the cross-examination was unfair, and my views of them, are:

The remark “There’s no doubt about it sir” is not part of a question but a comment or statement of opinion.

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

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

The questioning involved assertions as to what had been recorded by Ms Pauncz and which was not in fact in evidence – c.f. Evidence Act 1995 (NSW), s 44.

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

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

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

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

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

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

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

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

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

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

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

There was then an objection and her Honour asked:

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

These questions were calculated to at least minimise the impact of earlier ones that should not have been asked. They of course confirm that the earlier questions were not justified.

Relevant also to the conclusion at which I have arrived is the situation of the Appellant. He had a mental illness and was on medication. At AB1345 he said that his head was not as useful in the morning as later on in the day and that he was having trouble, a proposition her Honour seemed to accept when she postponed further cross-examination and said that she would give priority to his evidence being completed at a time of day amenable to his comfort and comprehension. At AB1450 he said he was “getting confused again. This is too quick and too aggressive and it’s confusing me”. Her Honour asked the Appellant if he needed a moment and then again adjourned the cross-examination. In addition to the passages I have quoted, he said on a number of other occasions during the cross-examination that he was confused – AB1434, 1442, 1446, and 1450.

Of course, such assertions of confusion are not necessarily true but at least as far as the transcript goes, they appear to be genuine and he was not challenged on the statements. It is however fair to record that after the adjournment of the cross-examination to which reference has just been made her Honour observed that “since Mr Waterstreet raised it I think that there’s been a tempering of demeanour in cross examination and I’ve not been seeing an aggression that is at all uncommon or out of place so I am troubled that the accused at this point of time is perceiving those matters. I don’t say there’s anything disingenuine [sic] about it, but I am troubled that that would be the perception”.

Her Honour went on to observe that it was important for the Appellant to comprehend, raised the possibility that mental illness or shyness or nerves could be operating, reiterated that the Crown’s questioning was not out of place and remarked that audible mumbles at the Bar Table, which I infer to have been from defence counsel, were calculated to be distracting.

The reference to Mr Waterstreet raising “it” was to an occasion early in the cross-examination when Mr Waterstreet had complained at the speed at which the Crown Prosecutor was reading material. Her Honour had then remarked that she had not discerned a pace that is uncommon in court proceedings.

In the main, the questions asked in cross-examination were commendably short and my impression from the printed page is that they followed quickly on one another. However, weight must obviously be given to her Honour’s remarks.

It must be accepted that many of the passages I have criticised were not the subject of objection, despite defence counsel objecting frequently, sometimes with justification and sometimes not. This failure is undoubtedly a reason why the Appellant should not be allowed to raise the issue here. However, the Appellant was entitled to a fair trial. Counsel appearing for the Crown was under an obligation when cross-examining to do so in a way that did not infringe the Appellant’s entitlement.

As Heydon J endorsed in Libke v R [2007] 230 CLR 559 at [122]:

The cross-examination was combative and aggressive. While such an approach may often not be inappropriate, it was clearly so in this case. The Prosecutor did put, indeed I think make, a number of controversial and prejudicial assertions based upon inaccurate or inadequate factual foundations and although some were subsequently withdrawn - some, days later - the mere putting of them was calculated to suggest, at least inferentially, that there was a basis for them. The Legal Profession Uniform Conduct (Barristers) Rules 2015 Rule 61 quoted by Beazley P and Davies J is not there for no reason.

As I indicated at the commencement of these reasons, I do not suggest that all departures from proper questioning make a trial unfair. I am not unconscious of the views of other members of this Court. Nevertheless, my overall impression of the cross-examination of the Appellant is that it was unfair and the accumulation of errors by the cross-examiner and their impact on the Appellant liable to have had an impact on the jury’s view of him.

Accordingly, I would uphold ground 1.