Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   Crespin Adanguidi (“the applicant”) applies pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) for an inquiry into his convictions and sentences with respect to the murders of Shiquin Zhu, Pin Shen and Christy Bo Shen contrary to s 18 of the Crimes Act 1900 (NSW).

2. [2]

   On 1 February 2003, the applicant killed each of the deceased. On 14 April 2005, after a trial conducted before Barr J, he was found guilty of three counts of murder. At his trial, he did not dispute that he had killed each of the deceased. His pleas of not guilty were based on the defence of mental illness. He argued in the alternative, that the partial defence of substantial impairment was satisfied, such that he was not guilty of murder, but guilty of manslaughter. It is plain from the result the jury did not accept that either defence applied.

3. [3]

   On 3 June 2005, Barr J sentenced the applicant to life imprisonment with respect to each count: Regina v Crespin Adanguidi [2005] NSWSC 519. The applicant sought leave to appeal to the Court of Criminal Appeal against the sentences imposed on him. No appeal was brought against the convictions. On 15 December 2006, that Court granted leave to appeal against the sentences but dismissed his appeal: Adanguidi v Regina (2006) 167 A Crim R 295; [2006] NSWCCA 404.

4. [4]

   The applicant is in custody serving those sentences and has been so since his arrest on 1 February 2003. As matters stand, he will never be released. He now, in support of this application, relies on further psychiatric evidence which is said to cast doubt on psychiatric evidence given at trial.

The application

1. [5]

   The applicant seeks a direction from the Court that an inquiry be conducted by a judicial officer into his convictions and/or sentences: CAR Act, s 79(1)(a). The application is put principally on the basis that there is a doubt or question as to the psychiatric evidence that was considered at trial although he has also provided evidence of progress towards rehabilitation.

The relevant provisions

1. [6]

   Sections 78 and 79 of the CAR Act provides:

2. [7]

   The legislation has a beneficial purpose and is designed to “overcome injustices that sometimes arise in the course of the criminal justice system”: Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review Act) 2001 (NSW) [2021] NSWSC 1061 at [5]; Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 at [10]; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [60], [64]-[75].

3. [8]

   The principles applicable to the consideration of applications under s 79 were reviewed by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (“Application of Holland”) at [6]-[9]:

4. [9]

   In Li v Attorney General for New South Wales [2018] NSWSC 674, Harrison J stressed, at [15], that “[t]he statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question … The Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry” (emphasis in original). This was reproduced with approval by Basten JA in Li v Attorney General for New South Wales (2019) 99 NSWLR 630; [2019] NSWCA 95 at [19].

5. [10]

   In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA, at [65], expressed some reservation about relying on the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of “unease” or “disquiet” in allowing the conviction to stand. His Honour there observed that “[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of ‘doubt or question’”: see also Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 at [14]; Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412 at [13].

6. [11]

   In Eastman v Director of Public Prosecutions (ACT) (No 2) (2014) 9 ACTLR 178; [2014] ACTSCFC 2, the Court considered the interpretation of s 422 of the Crimes Act 1900 (ACT) (the ACT equivalent of s 79 of the CAR Act, albeit with more conditions before an inquiry may be ordered), and came to the view (at [50]) that the concept of “doubt” is connected to the outcome of the finding of guilt, whereas “question” is linked to the process by which that finding was reached.

7. [12]

   It is not necessary for the Court in an application under Part 7 to determine if the evidence is “fresh” rather than “new”. In relation to this, Johnson J in Application of Holland, said, at [11]:

The present matter

1. [13]

   The applicant provided a written application, which comprised:

   1. (1)

      The Indictment, the applicant’s trial transcript, the summing up and proceedings after conviction;

   2. (2)

      Trial Exhibits;

   3. (3)

      Sentence Exhibits and the Crown and Defence Sentencing Submissions;

   4. (4)

      A copy of the remarks on sentence (Regina v Adanguidi [2005] NSWSC 519);

   5. (5)

      The Court of Criminal Appeal decision and related documents (Adanguidi v Regina [2006] NSWCCA 404);

   6. (6)

      Medical reports produced following the Court of Criminal Appeal decision, which includes:

   7. (7)

      A volume of scholarship concerning the interaction between schizophrenia and violence; and

   8. (8)

      Various academic and vocational courses completed by the applicant and other subjective material.

2. [14]

   The Attorney General provided written submissions dated 17 December 2021. The applicant provided submissions in reply dated 11 March 2022.

3. [15]

   This decision has been made on the papers. I have considered all of the above materials in making my decision.

4. [16]

   The appropriateness of the relief sought

5. [17]

   As can be seen from the history above, while the applicant challenged his sentence in the Court of Criminal Appeal, no action was taken with respect to his conviction. He has not, consequently, exhausted his avenues of appeal with respect to his conviction: R v Gibbings [1936] SASR 204 at 205, cited in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 305 fn 15 and followed in R v Caruso (1988) 49 SASR 465; (1988) 37 A Crim R 1; see also Jasmin v The Queen (2017) 51 WAR 505; [2017] WASCA 122 at [229]; Lawson v The State of Western Australia [No 2] [2018] WASCA 204 at [22].

6. [18]

   The opening sentence of s 79(3) of the CAR Act provides a discretion to “refuse to consider or otherwise deal with an application”. The opening words of the next sentence – “Without limiting the foregoing …” – suggest a broad and unfettered discretion. It is important however, to read the provision as a whole. The next sentence goes on to set out a number of circumstances in which the Supreme Court “may” refuse to consider or otherwise deal with an application, they being, where one of the circumstances in s 79(3)(a) applies and s 79(3)(b) applies. In the present matter, s 79(3)(a)(iii) applies – the applicant has not exhausted his rights of appeal, at least as against his convictions. This raises a question as to whether s79(3)(b) applies, that is, that I am “not satisfied that there are special facts or special circumstances that justify the taking of further action”.

7. [19]

   The matters in s 79(3)(a) and s 79(3)(b) have been described as serving as “a guide to the proper limits of [the] power” to refuse to consider or deal with an application: Clark v Attorney General of New South Wales [2020] NSWCA 70 at [39], per McCallum JA (as her Honour then was); see also the observations of Basten JA at [7]; GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179, per McCallum JA at [129]. In the present context, the fact that the applicant has not exhausted his avenues of appeal with respect to his conviction suggests the Court should refuse to deal with the application unless “satisfied that there are special facts or special circumstances that justify the taking of further action”: s 79(3)(b). Such a reading would be consistent with the nature of the jurisdiction sought to be engaged. That is, Part 7 of the CAR Act, as noted above, operates as a failsafe to be engaged in appropriate cases in order to remedy a miscarriage of justice where the criminal justice system has run its course.

8. [20]

   Neither of the parties referred to the potential significance of s 79(3) to this application. As noted above, what is sought is “that an inquiry be conducted by a judicial officer into [the applicant’s] convictions and/or sentence”. Insofar as the application concerns the sentences imposed, s 79(3) does not (at least specifically) raise an issue. However, it is plain that the applicant seeks to agitate his convictions, squarely raising an issue as to whether the Court should consider this application.

9. [21]

   Nor did the parties address the basis on which an inquiry, rather than a referral to the Court of Criminal Appeal, was sought. An inquiry ordered under s 79(1)(a) is not an end in itself. The judicial officer conducting the inquiry has no power with respect to the convictions or the sentence. In the event that an inquiry were to be ordered, it would be conducted according to Division 4 of Part 7 of the CAR Act. The action taken at the completion of the inquiry is governed by s 82, which relevantly provides:

10. [22]

    This provision requires that the judicial officer conducting the inquiry send a report to the Chief Justice: s 82(1)(b). The Supreme Court, after considering this report, must then furnish its own report, along with the judicial officer’s report, to the Governor, who may then dispose of the matter in such manner as the Governor considers “just”: ss 82(3), 82(4). One manner of disposal is the Governor’s exercise of the “pardoning power”. There is nothing put in the application to suggest that the present matter is one that is appropriate for exercise of the Governor’s pardoning power, or that there is a prospect that this will be so after an inquiry. Rather, the issues raised go to the applicant’s liability and culpability for the offences, matters quintessentially within the role of the courts.

11. [23]

    While the conduct of an inquiry will result in a report which, in this case, would be sent to the Chief Justice, it would also be open for the officer who conducted the inquiry to refer the matter to the Court of Criminal Appeal in the case of a doubt as to the applicant’s guilt or as to a matter affecting the nature or severity of the sentence: s 82(2). While the tests are not identical, the applicant could have sought this course directly. The evidence on which the applicant relies is clearly set out in the various reports. The Court of Criminal Appeal regularly deals with appeals based on the existence of fresh or new evidence. There does not appear to be any particular complexity to the issues in this matter such as to suggest an inquiry is the more suitable course. Those issues are discussed below.

Background to the present application

1. [24]

   As noted above, the applicant at trial did not dispute that he had killed each of the deceased, but denied responsibility for murder based on a defence of mental illness, and in the alternative substantial impairment by an abnormality of mind. The circumstances of those killings was summarised by Barr J at [4]-[22] as follows:

2. [25]

   As noted above the applicant relied on the defence of mental illness and the partial defence of substantial impairment. In broad terms, the defence of not guilty by mental illness required the applicant to establish, on the balance of probabilities that, when he did the acts causing death, the applicant 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 what he was doing was wrong: R v Porter (1933) 55 CLR 182 at 188; [1933] HCA 1; and see also s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed).

3. [26]

   The partial defence of substantial impairment (to reduce murder to manslaughter) required the applicant to establish, on the balance of probabilities, that at the time of the act causing death his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself were substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: Crimes Act, s 23A.

4. [27]

   Two highly regarded and experienced forensic psychiatrists gave evidence. The applicant’s case at trial relied on the opinion of Dr Westmore. That opinion was summarised in the following terms by Barr J at [50]-[51] of Regina v Crespin Adanguidi:

5. [28]

   In addition to this, Dr Westmore noted that “sometimes schizophrenic illnesses are preceded by what’s called a prodromal phase where there is a change in the person’s behaviour and sometimes their mood, and sometimes their thought processes … Not obviously psychotic, but obviously changed”. Dr Westmore was also of the view that while the applicant “did participate in what appears to be very purposeful goal directed behaviour… [i]t doesn’t exclude the possibility that he was mentally ill at the time.”

6. [29]

   Thus, while Dr Westmore’s opinion was that the applicant knew the nature and quality of his acts, he did not know that they were wrong, as understood in the context of a mental illness defence. Clearly, the jury did not accept Dr Westmore’s opinion.

7. [30]

   Dr Nielssen was briefed by the Crown and gave evidence in a case in reply. Reports provided by Dr Nielssen subsequent to the applicant’s trial are central to this application. At trial, Dr Nielssen described the appropriate psychiatric diagnosis as “probable schizophrenic illness” although it was not clear that he ascribed this diagnosis to the applicant at the time of the offences, as opposed to after the commission of the offences. Critically, he gave this evidence with respect to the impact of any illness on the relevant acts:

8. [31]

   Dr Nielssen also gave evidence that “[t]here was very little information to support that he was affected by symptoms of mental illness prior to the offence”, and that “it seems, if he has become mentally ill, it’s after the offences occurred”. The final question and answer in the evidence in chief were as follows:

9. [32]

   As can be seen, there is some confusion in the above answer as to the points in time being referred to. Importantly, in his evidence in chief, while Dr Nielssen gave evidence that the applicant certainly knew his actions were “wrong in a legal sense”, he gave no evidence as to whether he knew his actions were morally wrong or as to his capacity to reason in this regard.

10. [33]

    In cross-examination, Dr Nielssen accepted that in the report previously provided to the Crown he concluded that the applicant may have been eligible for the partial defence of substantial impairment. He accepted that implicit in this was a view that the applicant had an abnormality of mind at the time of the homicides. He said that at the time of writing the report he was of the view the applicant “probably had a psychotic illness at least from two days after” the killings, and this led to a view (at the time of preparing the report) that “on the balance of probabilities he had an acute psychotic illness that was also present at the time of the offences”, which was relevant to the partial defence of substantial impairment. However, with respect to the critical question of his then current view of the impact of any psychiatric illness on the applicant’s understanding of the wrongfulness of his acts, Dr Nielssen gave the following evidence:

11. [34]

    The Registrar referred to above was Dr Atherton, a trainee psychiatric registrar who saw the applicant on 2 February 2003, and therefore prior to Dr McDonald and Dr Willhelm who saw the applicant on 3 and 4 February 2003, and Dr Ellis who saw the applicant on 9 February 2003. Dr Nielssen appears to have based the opinion in his report on an inference drawn from the assessments made on these later dates in February 2003 to infer the presence of mental illness on 1 February 2003. That inference was undermined by the notes of Dr Atherton who on examination on 2 February 2003, found no sign of psychosis. Barr J thus summarised this aspect of Dr Nielssen’s evidence as follows (at [57]):

12. [35]

    Insofar as there was a potential impact on the applicant’s ability to judge right from wrong, Dr Nielssen’s evidence was extremely muted. The following evidence was given:

13. [36]

    It might be noted that the above questions were premised on the presence of an abnormality of mind at the relevant date, a matter Dr Nielssen had only accepted as a possibility, albeit a strong one. The final question and answers in Dr Nielssen’s evidence, given in re-examination, were as follows:

14. [37]

    Based at least in part on the above evidence, Barr J was satisfied that, while the applicant was suffering from a developing illness, his mental health was not affected in any relevant way at the time of the murders, so as to reduce his culpability. His Honour said at [72]:

15. [38]

    The above conclusion was, understandably, central to the decision to impose sentences of life imprisonment.

16. [39]

    As noted above, those sentences, but not the convictions, were the subject of challenge in the Court of Criminal Appeal. Central to the challenge was the contention that it was not open to Barr J to find that the applicant’s culpability was not affected by his illness. That contention was rejected. Given Dr Nielssen’s evidence, that rejection is unsurprising. The applicant also sought to place additional materials before the Court of Criminal Appeal. This comprised:

    1. (1)

       A report of Dr Nielssen dated 29 October 2006;

    2. (2)

       A report of Dr Agoncan dated 2 June 2006; and

    3. (3)

       The applicant’s prison file for the period 3 June 2005 to 12 September 2006.

17. [40]

    In this 2006 report of Dr Nielssen, he concluded that the applicant had a chronic schizophrenic illness, largely in remission. He also noted (as noted at [63] of Adanguidi v Regina) that additional evidence, including the evidence of the applicant’s wife regarding a change in the applicant’s behaviour in the period prior to the offences, was consistent with the applicant having a pre-existing mental illness and being in the early phase of a further episode of illness in the month before the offence.

18. [41]

    Hislop J (with whom the other members of the Court agreed) rejected the application to place the additional material before the Court as fresh or new evidence. His Honour stated at [64]:

19. [42]

    The Court did not come to resentence and the material was, consequently, not admitted.

Reports relied on in support of the application

1. [43]

   In his 2007 report, Dr Nielssen said the following with respect to the presence of an abnormality of mind at the relevant time:

2. [44]

   Dr Nielssen pointed out that what is known as to the relationship between emerging psychotic illness and violent offending has changed since the applicant’s trial. Dr Large in his 2009 report refers to three papers published in 2007 and 2008 which indicate a greatly increased rate of homicide in first episode psychosis. Dr Nielssen was a co-author on each of those papers, alongside Dr Large with respect to two of them. While it is not entirely clear when the applicant’s first episode of psychosis commenced, the experts are clear that, generally, the presence of schizophrenic illness emerges over time. Further, Dr Large observed, “[i]t can be difficult to distinguish the prodrome of schizophrenia and first episode schizophrenia”. Hence, Dr Nielssen said in his 2007 report:

3. [45]

   And similarly in his 2014 report:

4. [46]

   Dr Nielssen was also able to consider the applicant’s history of treatment since his incarceration, which he reported has involved long-term treatment with high doses of antipsychotic medication. In his 2007 report Dr Nielssen said:

5. [47]

   It appears that a combination of the changed understanding of the connection between prodromal or first episode schizophrenia with violent offending, and confirmation of the nature of the applicant’s illness through its subsequent progress, has led Dr Nielssen to form his current opinion as to the potential link between the applicant’s mental illness and his actions on 1 February 2003.

6. [48]

   The primary basis on which the application is resisted by the Attorney General is that, in the Attorney General’s submission, there was, at trial, little conflict between the opinions of the forensic psychiatrists, and that Dr Nielssen has, despite providing the subsequent reports, not gone so far as to say that his opinion has changed. On this basis it is contended that there is not a sufficient basis for the applicant’s matter to be revisited. The submissions are largely based on what Dr Nielssen has said in his post-trial reports. In his 2007 report, he said:

7. [49]

   Additionally, in his 2014 report, Dr Nielssen said:

8. [50]

   However, despite the view of Dr Nielssen that the experts agreed the applicant had a defence of substantial impairment by abnormality of mind available to him, this was in fact a substantial issue at trial, with Dr Westmore supporting the availability of a defence of mental illness. Further, whatever was intended to be conveyed by Dr Nielssen in his evidence, any support for the defence of substantial impairment in his evidence was faint to the point of vanishing. As noted above at [36], Dr Nielssen’s evidence provided a sound basis for the sentencing judge’s conclusion that the applicant was not badly affected by the presence of mental illness at the relevant time. Despite what Dr Nielssen said as to the difference between his evidence at trial and the opinion in his 2007 and 2014 reports, the opinion in those reports is, to my mind, quite different to what the jury was likely to have understood as to his opinion when he gave evidence in 2003.

9. [51]

   Dr Nielssen in his 2014 report ultimately expressed the view that advances in the understanding of the effects of prodromal and first episode schizophrenia, and I interpolate, the insight gained as a result of the progress of the applicant’s illness and treatment, “warrants a review of the outcome of his case”. That must apply with even greater force given the view I have taken as to the extent to which Dr Nielssen’s more recent opinion diverges from that given at trial.

Decision

1. [52]

   Dr Nielssen’s evidence was relied on by the Crown at trial and it appears was preferred by the jury over the evidence of Dr Westmore. Further, given the evidence of Dr Nielssen, it was open to the sentencing judge to find the applicant was not badly affected by his mental illness in any relevant way at the time of the offences. The evidence relied on in support of the application, and in particular, reports subsequently obtained from Dr Nielssen, raise a question or doubt as to the evidence he gave at the trial. Dr Nielssen’s more recent opinion that the applicant was, on the balance of probabilities suffering the effects of a psychiatric disorder and that that illness was “likely to have significantly impaired his capacity to understand events, judge right from wrong and to control himself at the time of the offence” calls into question the applicant’s guilt.

2. [53]

   However, as noted above, the applicant has not exhausted his rights before the Court of Criminal Appeal with respect to his conviction. It would ordinarily be appropriate that he do so before being granted a remedy under Part 7 of the CAR Act. On the other hand, he has exhausted his rights in relation to his sentence. Thus, if the matter is not referred, it is possible that he might be unsuccessful in relation to his conviction appeal (or his application for leave with respect to that appeal), but without recourse in relation to his sentence. Having regard to the potential relevance of the further evidence to both his convictions and sentences it is undesirable that the Court of Criminal Appeal’s jurisdiction be so limited. While I have the power to refer the matter to the Court of Criminal Appeal of my own motion, I cannot refer only the sentence appeal. The power to refer is a power to “refer the whole case”.

3. [54]

   In the circumstances, and while not condoning the approach of the applicant in making this application before exhausting judicial remedies, it is my view that I should refuse the application for inquiry, but, of my own motion, refer the applicant’s matter to the Court of Criminal Appeal. This is, in my view, the preferable course, given what I have said, above, as to the Court of Criminal Appeal’s capacity to deal with the matter, and the questionable benefit of holding an inquiry.

4. [55]

   I am mindful that, in making the order I propose I am likely impacting on what would have been a requirement that the applicant seek an extension of time to appeal his conviction. (The referral pursuant to s 79(1)(b) of the CAR Act involves a referral to “be dealt with as an appeal”, not as an application for leave to appeal.) This is a further unsatisfactory aspect of the application. While the 2007 and 2014 reports of Dr Nielssen were not in existence at the time the applicant sought to appeal his sentence, they have now been in existence for many years. No explanation has been given for the delay in raising these matters. Nonetheless, it remains the case that the matters raised give rise to a question as to the applicant’s guilt with respect to his three convictions for murder. In these circumstances I am inclined to make the referral despite its potential impact on the need for an extension of time in the context of a very long and unexplained delay.

5. [56]

   Finally, I should indicate that, in my view, the above considerations amount to special circumstances that justify the taking of further action with respect to the whole matter, despite the fact that the avenues of appeal against his convictions have not been exhausted: CAR Act, s 79(3)(b). I have formed this view primarily on the basis that, if the applicant is to agitate his matter in the Court of Criminal Appeal by filing an appeal in the ordinary fashion, he would be limited to appealing against his convictions, which is undesirable, for the reasons discussed above.

Orders

1. [57]

   I make the following orders:

   1. (1)

      The application for an inquiry into the applicant’s convictions and/or sentences is refused.

   2. (2)

      I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole of the applicant’s case is referred to the Court of Criminal Appeal to be dealt with as an appeal.

   3. (3)

      The applicant’s case be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.