Carter v R

1. [1]

   PAYNE JA: I have read the decision of Button J in draft. I agree with the orders proposed by his Honour. My reasons for doing so, however, whilst leading to the same outcome, differ slightly from those of his Honour in some respects that I will explain.

Legislative history

1. [2]

   Section 7 of the Criminal Appeal Act 1912 (NSW) deals with “Powers of court in special cases”. This section was derived from s 5 of the English Criminal Appeal Act 1907 (7 Edw. 7 c. 23). Section 7(4) of the Criminal Appeal Act confers a discrete power on this Court to consider the question of whether a convicted offender was mentally ill at the time of offending, so as not to be responsible according to law.

2. [3]

   In 1986, s 7(4) was amended by the Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW) so as to provide:

3. [4]

   The Bill introducing the Criminal Appeal (Mental Illness) Amendment Act was introduced as a cognate bill to the Mental Health (Amendment) Bill which identified anomalies requiring amendment to the then recently introduced Mental Health Act 1983 (NSW).

4. [5]

   The Second Reading Speech for the Criminal Appeal (Mental Illness) Amendment Bill stated that the changes were not intended materially to change the power conferred on this Court by s 7(4). The Second Reading Speeches in both the Legislative Assembly and the Legislative Council when introducing the Bill stated:

5. [6]

   The subsection was later further amended by the Crimes Legislation Amendment Act 2004 (NSW) to insert the words italicised below. The current version of s 7(4) thus reads:

The subject matter, scope and purpose of s 7(4) of the Criminal Appeal Act

1. [7]

   The principal matter in relation to which I differ from Button J concerns his Honour’s description of an application pursuant to s 7(4) as involving a “de novo determination about a question of fact”. It may be that the test, as applied by Button J at [280], is close in a practical sense to that which I prefer but I should explain my reasons for rejecting the label “de novo hearing” as a useful description of the statutory power granted by s 7(4).

2. [8]

   In Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335, Basten JA (with whom Meagher JA agreed) explained that the term “de novo hearing” itself does not necessarily have a firm or precise meaning:

3. [9]

   In the present case I do not think it helpful to describe the statutory power in s 7(4) as giving rise to a “de novo hearing”.

4. [10]

   It has long been settled in NSW that the power of the Court under s 7(4) (in the various forms it has taken) was not limited to cases where a new trial would be ordered under ss 6 and 8 of the Criminal Appeal Act 1912 (NSW): R v Jenkins (1963) 64 SR (NSW) 20. This point is made clear in the following passages from that decision. Per Herron CJ at (22-23):

5. [11]

   Walsh J (with whom Ferguson J relevantly agreed) held at 29-31 :

6. [12]

   Jenkins has subsequently been described in this Court as the leading authority in NSW as to the scope of s 7(4): R v Derbin [2000] NSWCCA 361 per Mason P. Nothing that has been said subsequently, including in Da-Pra v R; R v Da-Pra [2014] NSWCCA 211, the most recent examination of the section by this Court, casts doubt on the central principles which emerge from Jenkins and Derbin.

7. [13]

   The sole condition of the exercise of the power in s 7(4) is that it appears to this Court that the appellant was mentally ill at the time the appellant committed the act or made the omission charged. The provision thus confers a power to examine the evidence and to act upon this Court’s view of that evidence in appropriate cases. The operation of the provision is not limited to cases in which the Court finds error or would otherwise quash a conviction or order a new trial under other provisions of the Criminal Appeal Act. It is perhaps in this sense correct to describe the hearing as being “de novo” in that the appellant bears the onus of proving that he or she was mentally ill at the time he or she committed the act or made the omission charged.

8. [14]

   On the other hand, the words used in the subsection, “If, on any appeal”, make it plain that the power to quash the conviction and sentence can only be invoked where there is an appeal before the Court. The section involves an appeal based on the evidence in the court below, subject to the power of this Court to permit further evidence to be given in appropriate cases. The power in s 7(4) thus bears some similarity to an appeal by way of rehearing. It is for this reason that the application of s 7(4) is subject to a principle of appellate restraint. This is because this Court is required to give effect to advantages enjoyed by the trier of fact. In the language of Walsh J in Jenkins, “The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself”. There is no reason in principle why appellate restraint should apply in any different way in a judge alone trial. There may be practical differences in the application of the principle of restraint occasioned by the fact that, unlike a jury, trial judges must give reasons. This principle of appellate restraint explains why it has often been said that cases falling within the power conferred will be of rare occurrence: Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77; Jenkins at 29; R v Weise [1969] VR 953; R v Matusevich [1976] VR 470 at 476; R v Anderson (1980) 2 A Crim R 379; [1981] VR 155 at 386; Da Pra at [104].

Application of principles in this case

1. [15]

   I have myself considered all of the material before the primary judge and, in particular, have viewed the lengthy video ERISP and listened to the audio recording of the appellant at the time he was first arrested. This was exactly the same primary material as was available to the trial judge. The principle of appellant restraint I have described is of lesser importance in a case such as the present where this Court is able to view exactly the same evidence, presented in the same form, as the trial judge and no issues of credit arise (save perhaps from the video recorded ERISP).

2. [16]

   Applying the principles identified in Jenkins and emphasised in subsequent authorities, I am persuaded to the relevant standard that the appellant was mentally ill, so as not to be responsible according to law.

3. [17]

   This is for essentially the reasons given by Button J at [299]-[324]. The reasons of the trial judge for rejecting the special verdict are relatively brief. As his Honour explains, there are some factors tending against acceptance of the proposition that the appellant did not know that what he was doing was morally wrong. These include the theft of the knife, the hiding of that knife before the attack, the choice not to attack every person he saw and fleeing from the scene at the approach of the taxi driver who came to the victim’s aid.

4. [18]

   On the other hand, as Button J points out, there is no doubt that at the time of the attack on the victim the appellant was suffering hallucinations and paranoid delusions. His plan to kill was based on a belief that unidentified “others” were accusing him of being a paedophile. Based on the uncontested evidence of the appellant’s mother, that belief was delusional. As to the evidence of planning (regarding the knife and other items purchased by the appellant), I do not regard it as indicative that the appellant knew what he was doing was morally wrong. In circumstances where the planning, such as it was, was closely related to the appellant’s paranoid delusions, the evidence is at best equivocal. The evidence of the appellant fleeing the scene and seeking to avoid the police is consistent with his delusional state and acting in the belief that unidentified “others” were accusing him of being a paedophile. It does not provide any sufficient reason to reject the expert psychiatric evidence.

5. [19]

   I also take a different view to the trial judge about the responses given by the appellant when first questioned and when he was subjected to an ERISP which was recorded on video. They seem to me fairly clearly to demonstrate that the appellant was not aware that what he was doing was wrong. The appellant’s recounting of the horrific details of this terrible attack in the way that he does tells against a finding that the appellant appreciated that what he was doing was morally wrong in the sense explained by the High Court in Stapleton v The Queen (1952) 86 CLR 358.

6. [20]

   Finally, and perhaps most importantly in this case, there is nothing about the appellant’s responses or the other evidence in the case that causes me to doubt the expert evidence led on behalf of the appellant and the Crown which was unanimous on this subject. I agree with Button J that each of Drs Westmore and Adams possess far more experience in the assessment of mental illness than even a very experienced judge. Of course, as the trier of fact, the trial judge was not bound by the joint expert opinion but his reasons for rejecting that evidence are not persuasive. In particular, there is nothing in the lengthy passages extracted by the trial judge of his examination of Dr Westmore which identifies any basis to doubt the diagnosis given by Dr Westmore, about which Dr Adams relevantly agreed.

7. [21]

   This is a case where there were unchallenged unanimous opinions of psychiatrists supported by the assumptions they made and by the other available evidence. It follows that the orders proposed by Button J should be made. I also agree with Button J for the reasons he gives that ground 1 of the appeal should be dismissed.

8. [22]

   SCHMIDT J: I have had the benefit of reading in draft both the judgments of Payne JA and Button J and like their Honours, have myself examined the evidence, including the video ERISP and the audio recording of the appellant on the night of his arrest, when he sought to escape police, after he had so seriously wounded his victim, in the bizarre circumstances explained by Button J.

9. [23]

   I also agree with the orders which Button J proposes. Like their Honours, I have come to a different view to that which the primary judge reached about what the evidence established as to the appellant’s mental illness and his responsibility, according to law, for the actions which became the subject of the two charges of which he was convicted.

10. [24]

    That conclusion accords with the opinions of both psychiatric experts, explained in the evidence which they gave at trial, which led to parties’ common position at trial, that there should be a verdict of not guilty on the grounds of mental illness entered. The primary judge did not accept that common position, for the reasons which his Honour gave.

11. [25]

    In reaching my conclusion, I have approached the task which arises on this appeal under s 7(4) of the Criminal Appeal Act in a way which accords with the approaches of both Payne JA and Button J. That is because it does not seem to me that there is any real difference in the conclusions which their Honours have reached about the proper construction of this statutory task.

12. [26]

    That is, that s 7(4) does not require error to be established on appeal, but rather directs that this Court itself consider the evidence, in order to determine whether the appellant has met the onus of establishing that he was mentally ill at the time of the commission of the offences, “so as not to be responsible, according to law”, for his actions. In that event the conviction may be quashed and the appellant ordered to be detained in strict custody in such place and such manner as the court thinks fit, until released by process of law.

13. [27]

    The exercise s 7(4) requires does not involve a hearing de novo. Rather, the question of whether the conviction may be set aside must be decided on the evidence led at trial. In its consideration this Court is entitled to take into account that the trier of fact may have had the benefit of hearing oral evidence, including when conflicting opinions of experts arise to be resolved. But the Court must itself examine the evidence, in order to determine whether the appellant has met the onus which s 7(4) imposes.

14. [28]

    In this case the trial judge did not accept the common opinions of the psychiatrists. Despite the advantage which his Honour had in having heard the evidence at trial, like Payne JA and Button J, I am also satisfied on my assessment of the evidence, that their opinions must be accepted. I, too, have concluded that not only was the appellant mentally ill when he committed the two offences, the nature of his illness was then of such a kind that he was “not to be responsible, according to law”, for his terrible actions.

15. [29]

    It is not necessary to explain that conclusion further, agreeing as I do with the explanations which both Payne JA and Button J have given for the conclusions which they reached, about what the evidence established.

16. [30]

    The order which the law requires be made in those circumstances, are thus those that Button J proposes.

17. [31]

    BUTTON J:

Introduction

1. [32]

   On 30 March 2016, in the District Court of New South Wales sitting at Lismore, Mr Thomas Joseph Carter (the applicant) was found guilty by Judge Bennett SC at the conclusion of a trial by judge alone of two counts on an indictment.

2. [33]

   The first count averred wounding with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 25 years, and the offence has a standard non-parole period of 10 years.

3. [34]

   The second count alleged a police pursuit, whereby the applicant knew, or ought reasonably to have known, or had reasonable grounds to suspect, that police officers were in pursuit of a vehicle that was required to stop. That count went on to allege that he did not stop, and then drove recklessly or at a speed or manner dangerous to others. That offence was contrary to s 51B(1) of the Crimes Act. The maximum penalty is imprisonment for three years for a first offence.

4. [35]

   At trial, the Crown prosecutor and defence counsel were agreed with regard to the verdicts that should be returned: not guilty on the grounds of mental illness, the special verdict available pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act).

5. [36]

   That joint position was adopted because, on the one hand, there was no dispute on the part of defence counsel that the applicant had physically performed the acts underpinning the two offences alleged by the Crown. On the other hand, it was also because each party tendered a report from an experienced and well-qualified forensic psychiatrist expressing the opinion on the balance of probabilities that, at the time of the commission of those physical acts, the applicant was suffering from a defect of reason arising from a disease of the mind that had the effect that, although he appreciated the nature and quality of his acts, and although he may have appreciated the legal wrongfulness of his actions, the applicant did not appreciate that they were morally wrong: see generally R v M’Naghten (1843) 10 Cl & Fin 200; 8 ER 718, as illuminated in R v Porter [1933] HCA 1; (1933) 55 CLR 182, and Stapleton v R [1952] HCA 56; (1952) 86 CLR 358.

6. [37]

   His Honour rejected that unanimous expert opinion and that joint position of the parties, and explained why in reasons for verdict delivered on 23 June 2016.

7. [38]

   In a nutshell, a detailed analysis of the undisputed evidence about the actions and circumstances of the applicant led his Honour to fail to be satisfied, on the balance of probabilities, that the defence underpinning the special verdict had been made out.

8. [39]

   In particular, although satisfied of many elements of the defence, his Honour was not satisfied that the applicant did not appreciate that his actions were morally wrong. To remove matters of onus from that statement for a moment in aid of comprehension, the finding of his Honour was that the applicant did indeed appreciate the moral wrongfulness of what he was doing at the time he did it.

9. [40]

   On 18 November 2016, after entering convictions against the applicant, his Honour sentenced the applicant to an aggregate head sentence of imprisonment for 20 years 6 months, with a non-parole period of 12 years. An indicative head sentence of imprisonment for 20 years, with a non-parole period of 12 years, was provided for the first count, and an indicative head sentence of 1 year 4 months was provided for the second count.

10. [41]

    The applicant has sought leave to appeal against conviction on two grounds, and, as against the possibility of failure in that regard, leave to appeal against sentence on three grounds.

Brief sketch of the objective facts

1. [42]

   It is convenient at this stage to set out a broad overview of the objective aspects of the matter, although it will be necessary to return to them, along with evidence about the mental state of the applicant at the relevant time, in much more detail later. The following is derived from the remarks on sentence of his Honour.

2. [43]

   On the evening of Friday 21 November 2014, the victim, a young woman then 17 years of age, attended a party in South Lismore, in the Northern Rivers region of New South Wales. She left the party shortly before 1.15 am on Saturday 22 November 2014, and commenced to walk home.

3. [44]

   As she did so, she saw the applicant’s car, and then saw him alight from the vehicle alone. The applicant, a young man then aged 22 years, ran towards her. The victim began screaming and ran away from the applicant. He caught up to her, and stabbed her repeatedly with a very sharp filleting knife, while she was trying to push him away.

4. [45]

   When a taxi approached the two of them, the applicant retreated to his car. The taxi driver had observed the victim being chased by the applicant, and saw what he believed to be punches inflicted to the victim’s upper body; those punches were in fact the applicant repeatedly stabbing the victim. The victim was able to enter the taxi and told the driver that she had been stabbed. He drove to a nearby unattended ambulance station, calling for assistance en route. At the ambulance station, police officers arrived, promptly took control of the taxi, and drove it directly to a hospital.

5. [46]

   A partial registration number and description of the applicant’s car was broadcast over the local police radio network. The applicant was seen by police driving away from Lismore in the direction of the nearby town of Casino. The police pursued his vehicle, which was seen to drive on the incorrect side of the road and at high speeds.

6. [47]

   Eventually, with a police vehicle close behind, the applicant’s vehicle hit a roundabout and struck a rock garden wall that I understand to be in the middle of it. The car became airborne and on subsequent impact with the roadway a fire ignited beneath it.

7. [48]

   The applicant abandoned the vehicle and ran into a private property. Police pursued him on foot. The applicant’s escape was blocked by fencing. Police approached, drew a Taser, and arrested and handcuffed him.

8. [49]

   As the applicant was being taken to the police truck, he said “Just shoot me, shoot me now”, and when he was told he was under arrest he said “Yeah, kill me now” (these and all subsequent quotations in this judgment are verbatim). The applicant, when asked whether he had stabbed someone in Lismore replied “Yeah, a girl”. He confirmed that he did not know the victim, and could not provide any explanation as to why he did not stop driving.

9. [50]

   In the car that had been driven by the applicant, police located the knife used to stab the victim, along with a second filleting knife with a length of almost nine centimetres, and a serrated steak knife.

10. [51]

    In a recorded interview with police later that morning, the applicant disclosed that a hammer would also be found beneath the front seat of his car. He also said that he knew the reason for his arrest; admitted that he was looking for someone to kill that evening; admitted that he had tried to kill “some girl” he had spotted; and said that he did not know her. He admitted that he had stabbed her “a couple of times”, intending to kill her, and had aimed at her heart, lungs, and throat. He attributed the decision to kill to his “brain”. He asserted that he had tried to kill himself in the car, and that he wanted to “take down” as many people as he could. He blithely explained to the police that he had been driving around the Northern Rivers region that evening with the intention of killing “as many people as I can and then off myself.”

11. [52]

    The victim suffered severe and extensive injuries, including a laceration to the temporal lobe of her brain. The simple fact is that she came very close to dying as a result of the acts of the applicant. Graphic photographs tendered in the trial and placed before us on the appeal show the numerous gaping wounds that the applicant inflicted upon the victim with the filleting knife.

Grounds of appeal against conviction and sentence

1. [53]

   The following grounds of appeal against conviction were notified and pressed:

2. [54]

   The following grounds of appeal against sentence were notified and pressed:

More detailed discussion of evidence before the court at trial

1. [55]

   Whatever is to be the precise characterisation of the nature of the process of review called for by ground 2 of the appeal against conviction (a topic to which I shall return later in this judgment), it necessitates a very close analysis of the evidence placed before the trial judge. In undertaking that analysis, I shall focus in particular upon the evidence that argued for and against the proposition that the applicant, at the time of the commission of the physical elements of the two offences, was not guilty on the ground of mental illness.

2. [56]

   The majority of the evidence at trial was in documentary form, by way of police statements, without cross-examination of the maker of the statement. A recorded interview between detectives and the applicant was also tendered, as were a number of photographs showing the injuries to the victim. Each party tendered a report from a psychiatrist that it had retained: Dr Adams for the Crown, and Dr Westmore for the applicant. Dr Westmore was the only witness of either party who gave oral evidence in the trial.

3. [57]

   Turning first to the documentary evidence placed before his Honour, and summarising it in the order in which it appears within the folder of documents that constitutes Exhibit 1, they included a Crown case statement. But because that document is merely a secondary summary of the other evidence, I shall not pause to summarise it here.

4. [58]

   In his statement of 22 November 2014, Mr Fuller, the taxi driver, spoke of the events of early hours of that morning.

5. [59]

   At about 1.15 am, he was driving his taxi in Lismore when he observed “a female running across the road with a male chasing her”. Mr Fuller slowed his vehicle. He saw that the female was bleeding from the mouth, and saw her trip and fall onto the median strip. The male caught up to her, and stood over the top of her. Mr Fuller believed that he saw the male punch the female at least four times to the upper body area.

6. [60]

   Mr Fuller had completely stopped his vehicle, and opened the door to get out. At about the same time, the male left the female and jogged back in the direction from which he had appeared. He saw the male jog towards a white coloured vehicle that was parked on a street that intersected with the street upon which Mr Fuller had originally seen the two persons running. That vehicle was parked about 20 metres from that intersection.

7. [61]

   The female entered the vehicle of Mr Fuller. He quickly realised that she had been stabbed. He performed a U-turn in his taxi, saw the white vehicle again, and noted its registration number. He saw the man whom he had seen before now seated in the driver’s seat of that vehicle. A short time later, whilst driving, Mr Fuller saw the white vehicle in his rear view mirror. He could not tell which way the white vehicle ended up travelling.

8. [62]

   Eventually, as I have said, through the efforts of Mr Fuller and police, the life of the victim was saved; the details about that in his statement do not need to be summarised here.

9. [63]

   Mr Fuller went onto provide a description of the male; there was no dispute at the trial, of course, that he was the applicant.

10. [64]

    By way of a statement of 15 December 2014, Constable Papworth gave evidence that he was part of a team of police operating a caged truck that evening.

11. [65]

    At about 1.20 am on Saturday, 22 November 2014, Constable Papworth and his partner received a message over police radio. They travelled immediately to the ambulance station in Lismore. There they saw Mr Fuller, his taxi, and the victim. She was completely covered with blood, appeared to be slightly convulsing, and her breath was laboured and “gurgled”.

12. [66]

    Constable Papworth was given the task of locating a crime scene. He left the ambulance station and went to a location near Lismore City Hall. At about 1.35 am, a male waved at him. That male told the police officer “I woke up to a lady screaming fuck off fuck off. I looked out my [window] saw a male trying to grab a female. She ran over the road and he ran off and got in a car. She dropped something ran back to get it and flagged down a taxi.” The speaker was not able to describe the applicant, except to say he had “dark hair”.

13. [67]

    Constable Papworth spoke of the fact that, subsequently, photographs were taken of the injuries to the victim.

14. [68]

    By way of a statement of 1 January 2015, Constable Ellis gave evidence of her observations of the evening of Friday 21 November and the morning of Saturday 22 November 2014. She was then working in a fully marked police vehicle with a partner.

15. [69]

    At about 1.20 am, the phone call was received from the taxi driver. Constable Ellis and her partner ran from Lismore police station and proceeded urgently to the ambulance station. She saw the taxi of Mr Fuller to be “covered in blood” with what appeared to be “blood hand marks smeared all over” various exterior locations of the taxi. She observed the victim in the taxi’s back seat, which was also covered in blood.

16. [70]

    Later, with other police, Constable Ellis searched a grassed area near Lismore City Hall looking for weapons or other evidence.

17. [71]

    Later again, she found a pool of blood, from which there was a blood trail that extended quite some distance over a road in Lismore.

18. [72]

    Senior Constable Hayes was the partner of Constable Ellis. His statement is dated 24 November 2014. He described receiving a message over police radio at 1.23 am on the Saturday.

19. [73]

    At the ambulance station, he saw the taxi to be “covered in blood which was smeared up [on] both side[s]”. He also saw that the victim was “covered in blood and what appeared to be stab wounds to her head and upper torso. I observed that she was choking on the blood and struggling to breathe.” He drove the victim to hospital at a very high speed. Before she passed out, the police officer asked her “[d]o you know who did this to you?” She replied “[n]o, it was a bloke, he chased me, I could not get away.”

20. [74]

    At the hospital, Senior Constable Hayes noted that the victim had “several lacerations to her head, face, breast and upper torso”. Later, doctors informed the Senior Constable that the victim had lost something in the order of three litres of blood, and was minutes from death when she arrived at the hospital.

21. [75]

    Detective Sergeant Ewing made a statement on 10 December 2014. He gave evidence of receiving a phone call at about 2 am on 22 November to the effect that “a young girl had been stabbed multiple times outside the City Hall”. He was informed a little later that a male person had been arrested “after a police pursuit in Casino”.

22. [76]

    At about 3.15 am, at Centre Street Casino, Detective Ewing saw a white Daihatsu Charade in the middle of the road; there was no dispute at trial that that was the vehicle that the applicant had been driving.

23. [77]

    At about 3.30 the same morning, the detective saw the applicant in the dock at Casino Police Station wearing white forensic overalls.

24. [78]

    At about 4.52 am, the detective commenced to interview the applicant. That interview concluded at 5.45 am. Later, the applicant was charged, and later again forensic procedures were conducted upon him.

25. [79]

    The statement of Senior Constable Paine is dated 25 November 2014. He spoke of hearing the radio broadcast at 1.23 am on 22 November. He was seemingly the first police officer to arrive at the ambulance station. Mr Fuller said to him “[s]he’s in the backseat. He was stabbing her.” Senior Constable Paine saw that the taxi was “covered in blood”. Seated on the backseat of the taxi was the victim; she appeared lifeless. She was driven to hospital with great urgency.

26. [80]

    At about 3.40 am, the police officer engaged in an interview with the victim that was audio and video recorded.

27. [81]

    The statement of Senior Constable Reddell was made on 25 November 2014. At about 1.40 am on 22 November, he was driving a marked police sedan along a street in Casino. He saw the white Daihatsu Charade that was being driven by the applicant. Having heard a bulletin about the stabbing and the associated vehicle, Senior Constable Reddell performed a U-turn, and commenced to come up behind the Daihatsu. It appeared to speed up. The Senior Constable activated all warning devices, but the applicant made no attempt to stop. Instead, he accelerated, and a pursuit was initiated by police. The Daihatsu drove at an estimated speed of about 100 kilometres per hour through a roundabout, with the result that the vehicle moved around on the roadway. It continued at a speed estimated to be about 100 kilometres an hour.

28. [82]

    As the Daihatsu approached another roundabout, the applicant made no effort to slow down, or indeed negotiate the roundabout itself. Instead, the Daihatsu collided with the wall of a rock garden (as I understand it, in the middle of the roundabout itself), with the result that it launched over the garden, rising off the roadway by about a metre. It then landed heavily on the other side of the roundabout. The result of that impact was an explosion of fire from underneath the Daihatsu.

29. [83]

    The Daihatsu continued for about 100 metres up from the roundabout. Oil on the road (no doubt from the damaged Daihatsu) interfered with the traction of the pursuing police vehicle. The Daihatsu “now believed to be engulfed by fire” crossed the centre line, appeared to slide on oil, and then came to a stop.

30. [84]

    The applicant opened the driver’s side door, and ran towards a private yard. Senior Constable Reddell’s partner exited the police vehicle and gave chase on foot. Senior Constable Reddell kept driving, and followed the applicant, who ran into a backyard. The applicant ended up being literally cornered in part of the yard, and was unable to go further. He was surrounded by the police vehicle and the police officer on foot, who drew and activated his Taser. The applicant was arrested, with his hands handcuffed to his rear.

31. [85]

    The witness asked the applicant his name, and he replied truthfully and correctly “Joseph Carter”. As he was being walked back to the police vehicle, the applicant said “Just shoot me, shoot me now.”

32. [86]

    The following conversation took place with the applicant in the back of the police truck:

33. [87]

    Later, Senior Constable Reddell returned to the Daihatsu, and saw some items that had been removed from it by another police officer. The witness observed “a large, what appeared to be a filleting knife, with what appeared to be blood on the blade. I also saw another knife, a hammer, and garden shears.”

34. [88]

    Senior Constable O’Rourke, the partner of Senior Constable Reddell, provided a statement on 29 November 2014. He spoke of the radio message of 1.27 am. He described the commencement of the pursuit in a way consistent with that of the previous witness.

35. [89]

    By comparing the speedometer of the police vehicle and its distance from the Daihatsu during the pursuit, the witness estimated that the vehicle driven by the applicant was travelling between 105 and 110 kilometres per hour.

36. [90]

    He described the Daihatsu, as it drove onto the embankment of the roundabout, launching into the air, and becoming alight when it hit the road on the other side. He described the vehicle coming to a stop about 100 metres past that impact, the driver alighting from the vehicle and running into a private property, and his pursuit on foot, over approximately 60 metres. Senior Constable O’Rourke drew and armed his Taser. Eventually the police officer confronted the applicant, and said “Get on the ground”. The applicant stopped, put his arms in the air behind his head, got on the ground face first, and was handcuffed.

37. [91]

    Later, at 2.31 am, the witness administered a blood alcohol concentration breath test to the applicant whilst he was in the rear of the caged truck, with negative result.

38. [92]

    Senior Constable Hudson gave a statement on 23 November 2014. On the morning in question, he was partnered with Senior Constable Vaughan in a caged police vehicle.

39. [93]

    At about 1.40 am he was driving in Casino behind the sedan containing Senior Constable Reddell and Senior Constable O’Rourke. Senior Constable Hudson observed the Daihatsu travelling at a speed well above the speed limit. His vehicle also performed a U-turn, in order to follow the Daihatsu.

40. [94]

    The witness observed the Daihatsu increase its speed; he also saw it “completely cut through the round-a-bout”, rather than abiding by its circle. Although at least one police vehicle had warning lights and sirens activated, the Daihatsu did not slow down or stop. He estimated the speed of the Daihatsu to be in excess of 100 kilometres per hour. The estimate of the witness was that, at the second described roundabout, the Daihatsu became airborne to an extent of approximately 10 feet in the air, followed by “a large flash of fire”.

41. [95]

    The next relevant thing observed by the witness was the applicant in the custody of Senior Constables O’Rourke and Reddell. He recognised the applicant as someone with whom he had interacted with regard to driving matters earlier that day (that is, on 21 November). He retrieved from the Daihatsu the following items: a men’s wallet containing cards in the name of the applicant and approximately $280 in cash; one pair of pruning shears; one filleting knife with a black handle and a bloodstained blade; empty packaging for a fish filleting knife; and one black handled serrated steak knife.

42. [96]

    The witness opened the rear door of the caged truck and spoke to the applicant. He could see that the clothes of the applicant were dishevelled, “he smelt strongly of bad body odour and he was sweating profusely”. The following conversation occurred between the two of them:

43. [97]

    Thereafter, further conversation was audio recorded. The witness gave evidence that the recording is seven minutes and ten seconds in length. He also said that “Throughout the interview [the applicant] was seated in the rear cage of a Police vehicle with his hands handcuffed behind his back. The [applicant] stared straight ahead for the duration of the interview and his face remained emotionless”.

44. [98]

    During that interview, the applicant spoke of a further item to be found in the Daihatsu. Based upon that, the witness retrieved the hammer from under the front seat of the Daihatsu.

45. [99]

    Back at Casino Police Station, the following conversation took place between the applicant and Sergeant Underhill:

46. [100]

    The applicant was divested of his clothes and was provided with a disposable forensics suit.

47. [101]

    Later, the witness assisted the detective during the recorded interview of the applicant. Later again, the witness attended to the various exhibits that had been seized.

48. [102]

    During the interview of seven minutes’ duration between Senior Constable Hudson and the applicant near the location of his arrest, and which commenced at 1.55 am, the applicant correctly provided his name, provided his date of birth, and said his driver’s licence was in the Daihatsu. The following conversation took place (extracted verbatim from the transcript placed before the trial judge):

49. [103]

    I have listened to the audio recording of which the above is a transcript more than once in Chambers. My notes of my impression of the affect of the applicant during that brief interview are as follows:

50. [104]

    An interview with the victim commenced at 3.51 am at the hospital. She described walking home from the house of a friend and seeing a parked car, from which a male alighted. She began to walk in the opposite direction, and the male “just seemed, I saw him just start bolting at me, like running and I started running and screaming and then I saw him have a knife in his hand and then he catched up to me and there was a car coming so I was kind of trying to get to that car and then he grabbed me and he started stabbing me and um, and then the, the cab came. I can’t remember what happened then but then, he, he ran away because I think the car come and then, I don’t know how I got in the car, but I got in the car.”

51. [105]

    Later, she described the applicant as looking “pretty shaggy”. She believed that the applicant may have grabbed her neck. Although she believed that the applicant may have said something whilst he was stabbing her, she could not recall what it was.

52. [106]

    A report from a doctor from the Emergency Department at Lismore Base Hospital detailed the injuries to the victim. She had suffered many knife wounds, including a laceration to the left temporal region of the head, which penetrated sufficiently to cause a laceration to the brain; a deep laceration to the left of her chest; two lacerations to the back; three deep and extensive lacerations to the right arm; a laceration over the outer part of the shoulder; a laceration to her lip and tongue; and two small superficial lacerations to the left wrist.

53. [107]

    A further medical report from another doctor spoke of “minimally displaced left temporal skull fracture”. Later, a previously unidentified penetrating injury to her sinus was also discovered.

54. [108]

    As I have said, the applicant engaged in a formal interview at Casino Police Station with Detective Ewing in the presence of Senior Constable Hudson. The applicant’s mother was also present.

55. [109]

    The interview began at 4.52 am. The applicant was quite capable of answering questions rationally and directly. He was able to agree with the overview of events leading up to the interview provided by the detective. At times, he was able to dispute the layout of the parts of Casino in which the pursuit and subsequent arrest took place.

56. [110]

    He said that he had “looked in the rear view mirror, and I saw the sirens flashing and then I just took off”. He said that he had “just tried to evade”. As for the impact with the roundabout, he said “I was trying to not brake too much and make the corner”.

57. [111]

    As his Honour did, I have watched the recorded interview in Chambers. I shall intersperse my summary of what the applicant said with my notes of how he said it.

58. [112]

    I have noted that, during this first phase of the interview summarised above, the affect of the applicant was flat; he was staring, at one stage he shrugged; he showed no emotion; and he was able to be focused and clear about the questions he was being asked.

59. [113]

    He agreed that he was interviewed by police at the scene of his arrest, but could not recall the details of that conversation. When they were put to him from police notes, he agreed with them. In doing so, my note is that he was “totally calm”.

60. [114]

    When it was put to him that he had spoken of driving to as many towns as he could in order to kill people, he agreed that he had responded in the affirmative. My note is that he betrayed no emotional reaction in that agreement, despite the presence of his mother.

61. [115]

    When he was asked whether he had informed the police at the scene of his arrest that he had tried to kill a person that night, he agreed that he had said so, and his affect was totally flat in that agreement. Generally, during this phase of the interview, he provided quick answers in a flat way.

62. [116]

    He agreed with the detective that, at the scene, the detective had said “[y]ou don’t drink or do drugs. There’s nothing that would be affecting your decision-making tonight”, and he had replied “[m]y brain.” At the time of his agreement to that earlier exchange in the formal interview, he showed no emotional reaction.

63. [117]

    In the formal interview, he told police that he would have first left home that evening after 9 pm. He travelled first to Lismore, and thereafter was trying to head up to Brisbane, but got lost in the vicinity of Byron Bay. He described driving around “looking for people…just anyone alone.” At the time of saying those things, his affect was very flat.

64. [118]

    He described ending up in Ballina. He was asked “what were you going when you, if you did find someone in Ballina [sic]?” and answered “[t]ry to kill them.” I have noted that that answer was flat and quick.

65. [119]

    As for the items in the car, he claimed that one of the knives was part of a plan to go fishing earlier that day, and there was also a pruning knife that was for tomatoes. When asked “[a]nd were you going to use those items to harm people?” he answered “I don’t know”.

66. [120]

    He accepted that, if he had found “someone to hurt” he would have used the black handled filleting knife. He described having stolen it from his father’s shed, just before he had left on the evening. He explained that he stole it “[t]o um, kill people.”

67. [121]

    He explained that at one stage he had stopped at a service station in Lismore before travelling to Byron Bay. He described a person of possibly Indian ethnicity as working in the service station. He said that, during his driving that evening, he remained at or under the speed limit.

68. [122]

    He explained that he simply drove through the town of Ballina, and kept going once he was unable to find anyone. He denied keeping track of time, and said that he had turned off his phone. He was asked:

69. [123]

    At the time of giving those answers, my note is that he was “totally flat”, and at one stage shrugged.

70. [124]

    He said that, in Lismore “I was about to give up and just head home and then I spotted the girl and yeah.” Later he said, “[w]ent back to round the roundabout and pulled up and then got out with the knife hid it behind my…she ran off and then yeah”. “I stabbed her a couple of times and saw the cab driver coming back and yeah”. My note is that, in giving the latter answer, he was flat.

71. [125]

    At one stage of the interview in which he was being asked about his attempt to implement a plan to commit mass murder, he complained about the itchiness of the forensic overalls he was wearing, and asked whether they “get washed”.

72. [126]

    He readily drew a diagram of the location of the attack. Later, he said “[s]he stopped walking, so I got out of the car with the knife, hid it and then I just started running at her. She tried running away. And I got her”. He agreed that he had parked his car “[s]omewhere in another street”.

73. [127]

    He described in detail the process of the infliction of repeated stab wounds to the victim. When asked about the location of the wounds he said “[o]ne of them was the gut, I think. The rest of them I’m not really sure.” He agreed that he had been aiming for the “vital organs”. He also agreed that it was his intention to kill her. When asked why, he responded with a small shrug. His recollection was that he had said nothing to the victim. During the entirety of his description of these events in the recorded interview, my note is that he was flat and calm.

74. [128]

    He was asked “after you finished stabbing her, right, what did you do?” He replied “I noticed the cab driver pulling in, so I ran back to the car.” He agreed that after returning to his vehicle, he “sped off” in the direction of Casino.

75. [129]

    He described his state of mind at that stage as “I thought she was alive, because I didn’t, didn’t think I hit any of her vital organs so, she should have been right.…Oh, I thought I got her once in the gut, but I think it was pretty low so, she should have been right. Plus there was no blood on the blade and that, so it mustn’t have…penetrated that much, I don’t think.” My note is that during that answer, the presentation of the applicant was flat.

76. [130]

    He was asked about his thoughts and feelings after the attack, and whilst he was driving towards Casino from Lismore. His responses were that he was not thinking anything, he was “just driving”; he “[d]idn’t feel anything, just like before that”; he was “just sort of numb the entire day”, and had “no feelings”; he “didn’t care” whether the victim lived or died; and, if he had happened to have come across other people on his journey, he did not know whether he would have cared about those people.

77. [131]

    Although he had never “done this before”, in answer to the question of whether he had ever had these kinds of thoughts before, the applicant replied “[y]ep”.

78. [132]

    He spoke of the “schizophrenia medication which I was supposed to be taking”, but said that the last time he had taken that was “[m]onths ago”.

79. [133]

    When he spoke of having been diagnosed with schizophrenia, his mother clarified that that would have been in 2012 or 2013.

80. [134]

    The applicant claimed not to have been receiving treatment from a local psychiatrist in Casino or Lismore, and spoke of “real bad anxiety and that. I have trouble leaving the house”.

81. [135]

    Later, he confirmed that his intention was to kill a person, and thereafter kill himself. When asked how he would achieve the latter, he responded “[b]y any means”. My note is that, at the time the applicant said that, his affect was totally flat.

82. [136]

    Towards the conclusion of the interview, the detective prepared to leave in order to obtain an adopting officer. He reminded the applicant that the recording device was still operating. The applicant responded “[y]eah, when are you getting the ah, forensic stuff done?”

83. [137]

    The applicant continued to make inquiries about “the forensics”. My note is that at that stage, the applicant had his head in his hand, and was staring into the distance.

84. [138]

    The interview concluded by way of the usual adoption questions, and ended at 5.44 am.

85. [139]

    The next documents tendered in evidence were photographs of the victim shortly after the attack. As I have said, they show a number of gaping wounds to her body, and any layperson can see that she had suffered injuries of the gravest kind.

86. [140]

    The printout of criminal convictions of the applicant was placed before his Honour. It showed that he had been born in September 1992, that he lived at an address in Casino, and that, as at 29 July 2015, he had no criminal record.

87. [141]

    A photograph of a knife was also placed before the trial judge.

88. [142]

    The applicant tendered the first report of Dr Westmore of 14 April 2015.

89. [143]

    The forensic psychiatrist noted the following aspects of the matter.

90. [144]

    The applicant told him that, at the time of the attack, he was unemployed, receiving a Newstart Allowance, and trying to “get on the pension”. He was living with his parents and two brothers, along with some nieces and nephews, in Casino.

91. [145]

    The applicant spoke of “being hounded for a couple of years over rumours that I was a paedophile. I was getting threatened (about) getting bashed, death threats. I was having trouble leaving the house and, on the night, I ended up attacking a chick”.

92. [146]

    The applicant went on to say that he had been driving around and “I tried to kill someone. I saw this chick and I thought that she was the same chick that was taunting me that afternoon. I ended up attacking her at one o’clock in the morning. Then I drove away and I tried to kill myself in the car and the cops found me”. The applicant went on to explain that he had attempted to commit suicide by driving the Daihatsu into a roundabout at high speed.

93. [147]

    He agreed that he had told police that he had been driving around looking for someone walking alone in order to kill them. He remarked “I thought that the entire community was out to get me”. He said that he had had those thoughts for the preceding two months or so. He spoke of people having yelled things out to him whilst he was driving past locations, and accusing him of being a paedophile and a “dog”.

94. [148]

    When Dr Westmore confronted him with the fact that he had not spoken to the police of his belief that the victim was a person by whom he had been taunted earlier that day, the applicant was unable to explain that disjunction. Later, he said “[i]t wasn’t really in my head at the time. I wanted to kill myself”.

95. [149]

    The applicant told the forensic psychiatrist that he had first seen a mental health professional in about 2012, and had seen a psychiatrist once at that time. He had been prescribed some well-known anti-psychotic medications, and had taken them for a time, but ultimately stopped, because they caused him to have disturbing dreams.

96. [150]

    He agreed that he had heard voices in the past, and that was why he had seen the psychiatrist in 2012. He denied receiving messages from the television or the radio, but said “I have to use earphones to block out the sounds”. He agreed that strangers talked about him or looked at him in a certain way, and also said that they “read my mind and everyone was changing the streets”.

97. [151]

    He claimed that the people who had accused him of being a paedophile had also “wanted me to kill a kid or do something to a kid”.

98. [152]

    When asked whether medication in custody was assisting him, he replied “[y]es, I haven’t heard voices for a couple of weeks now”.

99. [153]

    When asked about his current mood state, he replied “I haven’t had any thoughts of killing anyone, so that (mood) is good”.

100. [154]

     He agreed that he had told police that he wanted to kill as many people as he could, and explained “yes, because everyone was putting me down and I had trouble in the house as well. I thought everyone was out to get me”.

101. [155]

     When asked whether what he had done to the victim was wrong, he replied “yes, because by doing that I have probably made her feel the way I feel, afraid to leave the house and, it’s against the law. I know that now, but at the time it wasn’t really in my head”.

102. [156]

     He agreed that, at the time of the recorded interview, he had told police that he did not really care or have any feelings about killing people at the time of the incident.

103. [157]

     With regard to his more general history, the applicant told the forensic psychiatrist that he had smoked cannabis on two occasions, but stopped doing so because he “felt like killing someone”. He had not used other prohibited drugs.

104. [158]

     He related a significant family history of mental illness. He also spoke of having suffered from depression as a child, and being bullied at school. He had been suspended “heaps”. He had never worked, never had romantic partners, and had moved to Adelaide at one stage in an effort to find work. He spoke of having friends, but not speaking to them anymore because he had “heard them dogging me but, over the last couple of years, I’ve probably been hearing things”.

105. [159]

     The applicant told the psychiatrist that, as at the evening in question, he had been thinking for a couple of months of attacking and killing somebody, and said that he had been very depressed at the time. He spoke of thoughts of self-harm that had extended for years, but that had never really been acted upon.

106. [160]

     When Dr Westmore asked him directly why he had decided to go out and randomly kill a person, the applicant responded “because I thought that everyone was out to get me, I now know I was wrong (to think that)”.

107. [161]

     Dr Westmore turned to examine the recorded interview of 22 November 2014. He noted the “extraordinary frank account” of the events of the evening in question.

108. [162]

     At the conclusion of that first report, Dr Westmore diagnosed the applicant as suffering from a chronic paranoid schizophrenic illness which was, at the time of the assessment, in partial remission. A differential diagnosis included major depressive episodes, or an adjustment disorder with depressed and anxious mood.

109. [163]

     The forensic psychiatrist expressed the opinion that the applicant was fit to be tried.

110. [164]

     Dr Westmore requested more information from the defence legal team, including the Justice Health file of the applicant and the video of the recorded interview with police, but was content at that stage to express the opinion that, on the balance of probabilities, at the time of the attack upon the victim, the applicant was “suffering from an acute exacerbation of his chronic schizophrenic illness and that that acute exacerbation had been caused by his poor compliance with medication”.

111. [165]

     Dr Westmore deferred the question of whether a defence of mental illness could possibly be available until the requested materials had been received.

112. [166]

     The second report of Dr Westmore placed before the trial judge was dated 12 May 2015. By that stage, the psychiatrist had the extra materials that he had sought.

113. [167]

     He noted from the Justice Health records that the applicant had been seen by a psychiatrist on 8 December 2014. At that stage, he was noted to have a “restricted affect, a depressed and flat mood and persecutory delusions.” Dr Westmore went on in his second report to summarise some of the Justice Health entries.

114. [168]

     On 12 December 2014, a note was made that “in context of psychotic symptoms, thought whole community had alienated him and were calling him a paedophile behind his back.”

115. [169]

     The doctor who spoke to the applicant on that occasion was provided with a history of the evening that was generally consistent with that given in the recorded interview with police. The doctor also wrote “no emotional response to having attacked a victim…at time of offence, felt confused and was having odd ideas re: converting energy from trees. Continues to have odd ideas, e.g. told me about his plans to have a black soldier insect larva to feed to carp which could then be turned into high Omega 3 chook feed”.

116. [170]

     At the end of the second report, Dr Westmore noted the differing versions of events, with regard to his behaviour towards the victim, that the applicant had provided on different occasions. Nevertheless, Dr Westmore expressed the opinion that, at the time of the attack, the applicant was suffering from a disease of the mind in the form of paranoid schizophrenia, which “would have totally deprived him of the capacity to know that he ought not to have acted as he did towards the victim.” Dr Westmore noted that the attack upon her was unprovoked and unexpected, and the psychiatrist expressed the opinion that, on the balance of probabilities, those actions “arose as a direct result of his delusional beliefs at that particular time”. Dr Westmore also invited attention to the history of auditory perceptual disturbances, or ideas of reference, or both.

117. [171]

     In a brief third and final report of 22 June 2015, Dr Westmore confirmed that by that stage he had watched the entirety of the video of the recorded interview. He invited attention to the “flat unreactive affect (expressive emotion) when providing the history that he had intended to kill a person at random”. Dr Westmore expressed the view, in the context of the presentation of the applicant in the recorded interview, that “[h]e showed, I felt, no insight into the wrongness of his actions. He described feeling “numb” the whole day leading up to the alleged offending behaviour and he advised police that he did not care what happened to the victim”.

118. [172]

     Dr Westmore confirmed that watching the recorded interview did not alter his previously expressed opinion.

119. [173]

     The next piece of documentary evidence placed before the trial judge was the Justice Health records of the applicant. I shall not summarise them in any detail. Suffice to say they record (in reverse chronological order) the applicant as having spoken of trying to kill himself by way of the roundabout collision; the presence of paranoid beliefs about taunting and persecution by others; an expression of suicidal thoughts on 13 April 2015; a denial of hallucinations on 25 March 2015; a statement of 16 March 2015 that the applicant “feels better” about some improvement in the health of the victim; a reference of 14 February 2015 to his low mood and blunted affect; a note of 15 December 2014 of “Nil thought disorder presented. Pt. stated that he no longer hear voices and footsteps. Insight – Good insight. Perception – alert and orientated. Judgement – Good judgement.”; a denial of ideas of reference emanating from the television on 9 December 2014; an inability to explain why the attack occurred noted on 8 December 2014; a reference to the applicant having harmed himself because other inmates were taunting him whilst he was held in a safe cell; a reference that the applicant “remains paranoid” on 1 December 2014; and an assessment by a clinician of 25 November 2014 that the applicant was neither intoxicated nor withdrawing from any substance.

120. [174]

     The final piece of documentary evidence placed before the trial judge was the report of Dr Jonathan Adams, forensic psychiatrist, of 4 November 2015. As I have said, that forensic psychiatrist was qualified by the Crown, and his opinion formed the basis of the Crown submitting that the special verdict sought by the applicant was the appropriate one.

121. [175]

     Dr Adams recorded that the applicant confirmed that he had been hearing voices in the past, but was not by the time of the two interviews that underpinned the report, which were conducted on 29 September and 23 October 2015. He spoke of the voices as having been “external” to his mind, and occupying the space surrounding him; they were female; and he did not recognise any voice. The applicant had heard instructions from the voices to “decapitate people”. At times he used a music device with earphones to try to block out the voices.

122. [176]

     He repeated the history of believing that others were speaking negatively of him, and accusing him of being a paedophile.

123. [177]

     He also spoke of a fear that his food had possibly being poisoned, and also that cameras may have been placed in his home to keep him under surveillance.

124. [178]

     At one stage, he told the forensic psychiatrist that he was particularly good at “killing people”, and had researched the topic of serial killers. He believed that he was “better” than the murderers about whom he had read, because “I felt emotionally numb…I have trouble crying”. He had been contemplating killing people for about 18 months before the attack.

125. [179]

     The applicant spoke of having seen a psychiatrist in Adelaide in 2012, who had prescribed medication that Dr Adams identified as an anti-depressant and an anti-psychotic.

126. [180]

     Dr Adams recorded a life history that was generally consistent with that provided to Dr Westmore.

127. [181]

     The applicant told Dr Adams that he was not taking his anti-psychotic or anti-depressant medication for about a month and a half before the attack. He had not refilled his prescriptions because he was afraid to leave the house. He was not using alcohol or prohibited drugs prior to or at the time of the attack. He confirmed his belief that, at the time, he was being accused of being a paedophile, and spoke of feeling suicidal.

128. [182]

     On the one hand, the applicant could not really remember thinking about killing people in the week prior to the attack. On the other hand, he informed the psychiatrist that he had thought about doing such a thing “since he was a teenager.”

129. [183]

     He spoke of hearing his name called whilst he was driving around the Northern Rivers region on the evening in question. He also said that “I thought everyone was an enemy at the time…maybe I could take more than one person out”.

130. [184]

     As for the attack itself, he denied that it had any sexual component. He described himself as having “freaked out”.

131. [185]

     He maintained the position that he was driving home after the attack in order to kill himself, and confirmed that he had collided with the roundabout at high speed with that intention.

132. [186]

     Dr Adams asked the applicant “if he believed his alleged behaviour was in any way wrong”. The reply was “No…I just figured everyone was out to get me, so what’s the difference about trying to get someone”.

133. [187]

     By the time the forensic psychiatrist saw the applicant, he had self-harmed in custody by cutting his right arm, because other inmates had allegedly called him a paedophile. He was in a mental health screening unit for a couple of months, and at the time of the interviews was prescribed a long-lasting anti-psychotic injectable medication, along with an oral anti-psychotic and an anti-depressant.

134. [188]

     The applicant spoke of his mental health having gradually improved in custody and of his ability by that latter stage “to think more clearly”. He also told the psychiatrist that he had had no further thoughts of harming anybody whilst in custody.

135. [189]

     By the time of the interviews, Dr Adams assessed the level of insight of the applicant as reasonable. He also assessed him as fit to stand trial.

136. [190]

     Dr Adams engaged in a detailed analysis of the recorded interview. He noted that the applicant sat calmly throughout, and did not appear distressed or emotional. He noted a level of attentiveness and concentration on detail.

137. [191]

     Dr Adams also spoke to the applicant’s mother. She spoke of his happy-go-lucky childhood, and his lack of verbal or physical aggression. She also described the applicant not leaving his bedroom during the weeks leading up to the attack. She referred to him as paranoid, and recounted that he was anxious about going into Casino. She suggested that the propositions of the applicant that people were accusing him of being a paedophile and intended to do him harm “had no basis in reality and she was not aware of this ever taking place”. She described the violence of the attack as inconsistent with the young man whom she knew. She spoke of an improvement in his mental health during the months that he had been incarcerated.

138. [192]

     Dr Adams reviewed the Justice Health records. Without being repetitive of my earlier summary, the psychiatrist invited attention to a reference to the applicant believing that others could read his thoughts on 29 November 2014; and to a reference of 8 December 2014 to the hearing of “whispers” and people calling the name of the applicant, extending back to the period in Adelaide.

139. [193]

     Dr Adams also provided his own précis of the opinion of Dr Westmore.

140. [194]

     Dr Adams diagnosed schizophrenia, and spoke of its hallmark symptoms being present: delusional beliefs of a persecutory, referential, and “thought interference” nature, and auditory hallucinations. Dr Adams also considered a comorbid diagnosis of major depression.

141. [195]

     Like Dr Westmore, Dr Adams was of the opinion that the applicant was fit to stand trial.

142. [196]

     Turning to the defence of mental illness, Dr Adams expressed the opinion that there were reasonable grounds to conclude that the applicant was suffering from symptoms of schizophrenia during the period leading up to the attack in November 2014. He suggested that schizophrenia often satisfies the legal element of the defence requiring a disease of the mind.

143. [197]

     He spoke of there being reasonable grounds to conclude that the capacity of the applicant for rational thought at the relevant time was impaired, predominantly as a result of his symptoms of schizophrenia. He suggested that that could be thought of as a defect of reason.

144. [198]

     Dr Adams expressed the view that the applicant was indeed aware of the nature and quality of his behaviour when he attacked the victim. His opinion, however, was that “it is likely that he did not fully understand the wrongfulness of his behaviour, given his delusional persecutory ideation, and belief that he should kill others given his pervasive persecution”. He also invited attention to the professed numbness of the applicant in the period leading up to the offence, and his detachment during the recorded interview.

145. [199]

     Dr Adams concluded this analysis by expressing the opinion that “there are reasonable grounds to conclude that Mr Carter would not have been able to reason about the wrongfulness of engaging in the alleged behaviour with a moderate degree of composure, given his continuing symptoms of schizophrenia.”

146. [200]

     Dr Westmore was called to give oral evidence in the defence case at trial. In evidence-in-chief, it was confirmed that, at the time of the consultation leading to the first report, he did not have the transcripts of the short recorded interview or the longer recorded interview of the applicant. Nor did he have the Justice Health records. The interview before the first report was the only time at which Dr Westmore had spoken to the applicant.

147. [201]

     In the first report, Dr Westmore had not diagnosed the applicant as suffering from a major depressive disorder. The psychiatrist explained that, although “his affect was blunted and unreactive and his mood state was restricted”, he did not, as a clinical assessment, perceive depression.

148. [202]

     Dr Westmore gave evidence that “there was something wrong with him at the time I assessed him in terms of his mental state”.

149. [203]

     Dr Westmore went on to emphasise that the attack had occurred after the applicant had discontinued his prescribed medication, and that his mental state had improved once he was medicated in the highly controlled setting of custody.

150. [204]

     In the context of providing a layperson’s definition of the term schizophrenia, Dr Westmore said “This man has a paranoid schizophrenic illness”.

151. [205]

     The forensic psychiatrist went on to emphasise the genetic components of depression and schizophrenia.

152. [206]

     With regard to the extended recorded interview, the witness expressed the view that “the most important abnormality in the DVD, from a psychiatric perspective, is his abnormal affect.… There was a, a - they, they talk about schizophrenia, the community uses the term split personality, but that is not correct. What is split is it is split, but it’s the splitting of the affect, a person’s ability, emotional reactions, to their thoughts, their thought processes, so there is this splitting away, and that’s what we see most prominently in that, in that DVD”.

153. [207]

     The psychiatrist expressed the view that the fact that the applicant did not appear to have spoken or otherwise communicated in any way with the victim before, during or after the attack “might be consistent with all the other unusual components of his behaviour leading up to the, the offence”.

154. [208]

     During his oral evidence, the trial judge asked Dr Westmore about the whole of the sequence leading up to the attack. The question from his Honour encompassed the following undisputed propositions. After alighting from his vehicle and before the attack, the applicant kept the knife hidden. The attack was a ferocious one. Although the applicant had spoken of seeking to kill people, he had not inflicted any violence on the service station operator. Nor did he attack the taxi driver. On the contrary, when the taxi driver came close to the applicant and the victim, the applicant fled. The applicant had claimed that he was unaware, at least for a time, of the police vehicle being behind his. It was only after he was cornered in a yard that he asked the police to shoot him. The enquiry of his Honour was how all of that fitted “into the opinion that you've reached upon your assessment of the accused upon clinical presentation and the documents that you've read?”

155. [209]

     Dr Westmore explained the targeting of the victim as likely to have been based on her vulnerability, as opposed to two people together, who might more readily have been able to resist the applicant. He also thought that, possibly, her gender “increased his levels of confidence that he might be able to be successful in his plan”.

156. [210]

     His Honour indicated that his chief concern was the question of proof of the element of lack of appreciation of wrongfulness, and the psychiatrist expressed his understanding of that focus. In response to a question about that topic that focused upon the decision not to confront a male, or more than one person, as well as the applicant fleeing from the scene after the attack, Dr Westmore replied:

157. [211]

     Further questions of the trial judge focused upon the seeming delusion about being accused of being a paedophile, the sense of the wrongfulness of that false accusation, the desire to have “other people suffer along with him”, and whether that would therefore suggest an appreciation of the wrongfulness of the infliction on his part of that suffering. The following exchange occurred:

158. [212]

     Later, the psychiatrist accepted the proposition of the trial judge that the “second leg” of the “M’Naghten test” (that is, the question of appreciation of wrongfulness generally) is something of a “moving line”.

159. [213]

     As for the failure to stop during the police pursuit, his Honour enquired “how does one address the McNaughton [sic] defence in that context?” The response of the forensic psychiatrist was:

160. [214]

     In cross-examination by the Crown prosecutor, Dr Westmore returned to the affect of the applicant in the recorded interview. He was taken to the focus by the applicant during that interview upon the state of his forensic overalls, in the context of him admitting to attempted murder and premeditated attempted mass murder. Dr Westmore said of that focus, along with the “frank and full confession. It’s incongruous, inconsistent”.

161. [215]

     With regard to the question of the level of insight of the applicant on the evening in question, Dr Westmore explained “Insight is not like a light switch, it’s not all or nothing, unfortunately. It’s on a spectrum …”

162. [216]

     Dr Westmore also spoke of the many reasons why mentally ill people decline to take prescribed medication.

163. [217]

     With regard to the fact that in the recorded interview the applicant was able, rationally and with precision, to correct one of the questions he was asked about the route undertaken during the police pursuit, Dr Westmore replied:

164. [218]

     Finally, with regard to the claimed amnesia of the applicant with regard to the attack itself, Dr Westmore expressed the view that that could indeed be possible, and that, even in a healthy mind, there can be a blocking out of traumatic events.

Appeal against conviction

1. [219]

   Turning now to the grounds of appeal against conviction, in my opinion it is convenient to deal with ground 2 first. I repeat it for the convenience of the reader.

Ground 2

1. [220]

   Section 7(4) of the Criminal Appeal Act 1912 (NSW) (“the section”) is as follows:

2. [221]

   This ground raises a preliminary question; namely, what is the nature of the review undertaken by this Court pursuant to the section?

3. [222]

   On the one hand, does it permit a de novo review of the evidence, or something close to it? In asking that question, I am not speaking of a hearing before this Court that is truly de novo, in that the whole matter “starts again”, by way of the tender of evidence, objections thereto, cross-examination, and so forth. Rather, I am speaking of a determination that is de novo, in the sense of being unfettered by the need for identification of error in the verdict at first instance.

4. [223]

   Or, on the other hand, is the nature of the review to be thought of as closely analogous to an appeal pursuant to s 6(1) of the same Act, founded only upon the proposition that the verdict is unreasonable or unable to be supported, and in that sense calling for identification of error in the verdict? That subsection provides:

5. [224]

   If the former, the determination is unfettered by the verdict at first instance, and, in the case of a trial by judge alone, the findings of fact and reasons given in support of that verdict. If the latter, the process must be thought of as “error based”, at least in the sense most recently discussed by the High Court of Australia in Irwin v the Queen [2018] HCA 8, and (in the context of a trial by judge alone) Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.

6. [225]

   The Court sought the assistance of counsel by way of supplementary submissions on the question of the nature of appellate review pursuant to the section. Because the parties did not agree in the characterisation of the section, I briefly summarise their submissions, and thereafter determine this preliminary question of legal characterisation.

7. [226]

   Senior counsel for the applicant submitted that the section is not contingent on the applicant succeeding on the ground of appeal provided by s 6. Rather, the section may “operate independently”, and in support of that proposition he placed emphasis upon the decision of R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW).

8. [227]

   Senior counsel invited attention to the words of the section in question, namely “If, on any appeal, it appears to the court that…” to found the submission that they suggest no restrictions upon this Court considering matters afresh, utilising the transcript and exhibits from the trial.

9. [228]

   Senior counsel also relied on what had been said in R v Jenkins, which was an appeal against conviction to this Court following a trial by jury:

10. [229]

    I understood the point to be that, although such a divergence of opinion between this Court and the tribunal of fact at first instance may be rare, still and all, it is possible, and does not require identification of an unreasonable verdict at first instance.

11. [230]

    Senior counsel separately invited attention to the fact that the verdict in this case was returned by a judge as opposed to a jury, and suggested that that may mean that there is even less of a fetter on the role of this Court here, because the traditional respect that is paid (admittedly in the other context of s 6) to a verdict of a jury, the time-honoured institution of popular participation in the criminal justice system, is not applicable here.

12. [231]

    Further, he submitted that, even assuming that, pursuant to the section, this Court would give weight to credibility findings made by the trial judge, there were none to be made here, because the credibility of the single witness who gave oral evidence was never placed in dispute.

13. [232]

    Finally, senior counsel emphasised that s 6 is restrictive in nature, and limits the nature of the ground of appeal available to an offender following conviction. In contrast, the section was submitted to be patently less restrictive because of the words actually used in the section: “if…it appears to the court”.

14. [233]

    To conclude, I understood the applicant’s case to be that, in accordance with the nature of the appeal under the section, this Court can have regard to all of the evidence in the trial to examine whether it would itself be satisfied, on the balance of probabilities, that the mental illness defence is made out.

15. [234]

    Senior counsel for the Crown examined the history of s 7 of the Criminal Appeal Act. It was derived from s 5 of the English Criminal Appeal Act 1907 (the English Act). Indeed, the section was identical to s 5(4) of the English Act when it was first introduced.

16. [235]

    It was accepted that the section confers a discrete power on this Court to consider the question of whether a convicted offender was mentally ill at time of offending, so as not to be responsible according to the law.

17. [236]

    A helpfully detailed analysis of the history of amendment to the section was provided that may be summarised as follows.

18. [237]

    The original wording of the section was said to show that the relief conferred by the section was confined to quashing the sentence, and did not extend to quashing the conviction:

19. [238]

    It was also submitted that the Criminal Appeal (Mental Illness) Amendment Act 1986 (NSW) amended s 7(4) by updating its terminology (from “insane” to “mentally ill”), and inserted the word “conviction” in order to empower this Court to quash both conviction and sentence. It then provided:

20. [239]

    Further, the Mental Health (Amendment) Bill 1986 (NSW) was said to have identified anomalies requiring amendment to the Mental Health Act 1983 (NSW). The Second Reading Speech in support of the Bill was said to evidence that “the amending Act was not intended to confer a new kind of appeal on the Court of Criminal Appeal” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 April 1986 at 3074-3076). There it was said:

21. [240]

    Section 7(4) was then amended by the Crimes Legislation Amendment Act 2004 (NSW), to add the following underlined words:

22. [241]

    In short, I did not understand it to be submitted that the various “mechanistic” amendments described above shed any light on the underlying nature of the process of review created by the section.

23. [242]

    Separately, it was submitted that the Australian jurisprudence diverged from the English jurisprudence in the 1960s, with the result that the latter was not analysed.

24. [243]

    Turning then to the particular question of whether a determination pursuant to the section is de novo, the Crown accepted that the subsection does confer “extraordinary” jurisdiction that is exercised in a manner different from that conferred by ss 5 and 6 of the Criminal Appeal Act.

25. [244]

    Senior counsel referred to the debate on the subclause to the original Criminal Appeal Bill in the Legislative Assembly (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 July 1911 at 1386-1387), where it was said:

26. [245]

    The clause was said to have been agreed to on 11 July 1911, without further debate on section.

27. [246]

    Senior counsel for the Crown then engaged in a detailed review of the authorities from different Australian States, including from Victoria, Tasmania, and New South Wales, in order to shed light on the nature of the decision pursuant to the section. Because I deal with them later in this judgment, I shall not pause to discuss them now.

28. [247]

    Suffice to say that the Crown submitted that none of the authorities examined suggest that the nature of the hearing pursuant to the section is de novo, as that is “not reconcilable with an approach that affords the jury verdict the deference referred to in the case law”. I also understood her submission to be that nor is the decision of this Court pursuant to the section entirely de novo. Rather, it was said to be more akin to that made pursuant to the first limb of s 6(1); having said that, it was acknowledged that establishment that the verdict at first instance was unreasonable or unable to be supported is not required pursuant to the section.

29. [248]

    As for the question of whether an appeal under the section is “tethered” to an appeal under s 5(1), attention was invited to the introductory words of the section: “if, on any appeal”. That was said to show that the power to quash the conviction and sentence pursuant to the section can only be invoked where there is an appeal before the Court and leave to appeal has been granted, a construction supported by the legislative history of section.

30. [249]

    Senior counsel informed the Court that research undertaken by the Crown was unable to locate any authority in which an application had been made to this Court solely pursuant to the section.

31. [250]

    It was submitted that an appeal pursuant to the section can only be available where the defence of mental illness had been raised at trial: The Queen v McMahon [2004] VSCA 64; (2004) 8 VR 101. Further, it was said that that proposition supports the submission that the hearing in this Court cannot be de novo in the extended sense.

32. [251]

    Turning to consider whether the application of the section differs depending upon whether conviction followed a trial by jury or by judge alone, senior counsel referred to s 133 of the Criminal Procedure Act 1986 (NSW) and many authorities for the proposition that it cannot be the case that the approach of this Court to the section differs depending upon whether the tribunal of fact at first instance was a jury or a judge: Filippou v The Queen; ZA v R [2018] NSWCCA 116 at [83]-[85].

33. [252]

    Senior counsel also submitted that only one case had been found that contained a discussion of the exercise of power pursuant to the section (or one of its analogues) in an appeal following a judge alone trial: Hone v The State of Western Australia [2007] WASCA 283. There the Court of Appeal of Western Australia held that the trial judge was correct in refusing to accept the uncontradicted expert psychiatric opinion that the appellant was of unsound mind. That decision was said to provide no support for any proposition that a different approach should be undertaken pursuant to the section or its analogues depending upon whether the tribunal of fact was a jury or a judge.

34. [253]

    To conclude this aspect of the analysis, senior counsel firmly submitted that the approach of this Court to an application under the section should be the same, irrespective of whether the appeal against conviction follows a jury trial or a trial by judge alone.

35. [254]

    Finally, in relation to the general approach that this Court should adopt on an application under the section, senior counsel submitted that such power should only be exercised “in exceptional circumstances and that cases falling within the power conferred will be of rare occurrence”. And it was submitted that, in each of the appeals heard by this Court, when exercising its power pursuant to the section, the Court only had regard to the evidence led at trial, thereby demonstrating that the power does not involve a hearing that is truly de novo.

36. [255]

    In short, I understood the Crown’s position to be that a determination by this Court pursuant to the section is “neither fish nor fowl”: it does not require identification of error in the sense of unreasonableness in the verdict, but nor can it be said to be a determination that is undertaken completely afresh. Rather, it is in something of a third category.

37. [256]

    Turning to resolve this question of characterisation, as has been stated above, the section is well over 100 years old, appearing as it did in similar form in our Criminal Appeal Act as originally made. And its progenitor appeared in the English legislation that commenced five years before. As well as that, it has existed for many years in various forms in all Australian states (I say that appreciating that the underlying defence is also framed differently in different Australia jurisdictions).

38. [257]

    It is true that there has been a divergence of opinion between intermediate appellate criminal courts throughout Australia about the nature of the section and its analogues. For example, in Tasmania the section has been thought of as replicating an appeal based upon the unreasonableness of the verdict at first instance: see the detailed analysis in Hitchens v The Queen [1962] Tas SR 35 at page 40 and following.

39. [258]

    With regard to the Victorian provision, a more nuanced position has been adopted.

40. [259]

    In Mizzi v the Queen [1960] HCA 77; (1960) 105 CLR 659, the High Court of Australia quashed a conviction for murder on the basis that the summing-up was defective, and thereafter exercised the power under the Victorian provision in a way that was consistent with a de novo approach.

41. [260]

    In R v Weise [1969] VR 953, the already apparent difference in approach between Tasmania and New South Wales was noted. Reference was made to the approach taken by the Full Court of the Supreme Court of Victoria in Mizzi v the Queen, which was de novo, and the fact that the High Court did not question that approach. In the event, the Victorian Court adopted the broader approach in R v Weise (at 964, 967, and 975).

42. [261]

    In R v Matusevich and Thompson [1976] VR 470, the Victorian Court of Appeal was asked to utilise the provision analogous to our section. Arguably, a more restricted approach was taken, at 476-477:

43. [262]

    The Court there ordered a new trial, and did not exercise the power under the analogue.

44. [263]

    In R v Anderson [1981] VR 155, in circumstances in which the applicant had not raised the defence of mental illness at trial, and strongly resisted the utilisation of the section on appeal, the Full Court of the Supreme Court of Victoria declined to substitute a verdict. In similar vein, in R v McMahon, the Victorian Court of Appeal held that the section could not be used in circumstances whereby the defence had been raised neither at trial nor on appeal.

45. [264]

    Finally, in R v Fitchett [2009] VSCA 150; (2009) 23 VR 91, the defence of mental impairment was central to the defence case at a trial for murder. The Victorian Court of Appeal found that the summing-up was defective. Turning to a ground asserting that the verdict was unreasonable or unable to be supported, the Court described the role of the Victorian provision as “not without difficulty”: at [43]. A number of Australian authorities were discussed. In the event, the Court did not resolve the question of characterisation of the provision. Rather, it simply proceeded on the basis that the jury was entitled to reject the defence of mental impairment, and the Court was in no position to substitute its own view, even on the assumption that it was empowered to do so: at [49]. In the event, a new trial was ordered.

46. [265]

    In short, I respectfully think that it can be said that the Victorian approach is, on the one hand, less restrictive than the Tasmanian approach, but, on the other hand, less decisive and more cautious than the New South Wales approach, which I shortly turn to summarise.

47. [266]

    To complete this brief conspectus of other jurisdictions, as for England and Wales, their version of the section changed markedly some time ago, although the approach adopted very shortly after the commencement of the legislation was certainly a very broad one: see, for example, R v Atkins (1908) 1 Cr App R 45 and 69.

48. [267]

    In my opinion, whatever the approach taken in other Australian jurisdictions and overseas, the approach to the New South Wales section is established: the determination of this Court is de novo, although as a practical matter due respect will be paid to the verdict at first instance. I say that because of the following statements in decisions of this Court, extracted in general chronological order.

49. [268]

    In R v Jenkins, at 23, Herron CJ stated:

50. [269]

    At 29, Walsh J stated:

51. [270]

    At 30:

52. [271]

    At 33, perhaps to the contrary, Ferguson J stated:

53. [272]

    In short, in my opinion in that judgment a majority that included the Chief Justice made it clear that the process of determination pursuant to the section does not require identification of error in the verdict, in the sense of it being unreasonable or unable to be supported.

54. [273]

    In R v Fleeton (1964) 64 SR (NSW) 72, the Court applied R v Jenkins, at 73:

55. [274]

    Later, at 75, Walsh J quoted the extract at [269] above, before coming to the conclusion that, following the “cautious and conservative approach to the exercise of power” from R v Jenkins, the power to substitute a verdict should be exercised pursuant to the section, and stated at page 83 and 86 respectively:

56. [275]

    In Stockton v R (1981) 3 A Crim R 384, Street CJ considered the power pursuant to the section, at 391:

57. [276]

    In R v Hilder (1997) 97 A Crim R 70, Hunt CJ at CL also examined the power pursuant to the section, and concluded that that power is wider than that arising from s 6, observing at 75:

58. [277]

    In R v Derbin [2000] NSWCCA 361, Mason P discussed the powers of the Court of Criminal Appeal pursuant to the section, stated that the leading authority is R v Jenkins, cited extensively from the judgment of Walsh J (at [12]), and came to the conclusion that the power under the section should be exercised.

59. [278]

    More recently, in Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 (the most recent authority of this Court on the question of characterisation of which I am aware), Emmett AJA examined the power conferred upon this Court pursuant to the section, at [103]-[104]:

60. [279]

    R A Hulme and Bellew JJ referred to R v Derbin, and approached the whole question on the basis that an appeal pursuant to the section is not to be equated with an appeal contending that the verdict of a jury or a judge alone is unreasonable or unable to be supported.

61. [280]

    In short, there are very many considered decisions of this Court, some of them of longstanding, to the effect that the application under consideration is in a special category. In my opinion, it constitutes one of the rare occasions upon which this Court makes a de novo determination about a question of fact. The Court does not need to identify error in the verdict at first instance by way of characterising it as unreasonable or unable to be supported. In saying that, I do not purport to suggest that an application pursuant to the section is procedurally a de novo recommencement of the litigation; that question of procedural characterisation does not arise in this appeal.

62. [281]

    I therefore propose to determine afresh the question of whether, on the evidence tendered in the trial, the accused has established, on the balance of probabilities, the defence of mental illness, whilst paying due practical and common sense deference to the verdict and reasons of the trial judge.

63. [282]

    I turn now to summarise the submissions of the parties about whether this Court should be so satisfied.

64. [283]

    In written submissions, senior counsel for the applicant said that the trial judge placed too much weight on the apparently rational behaviour of the applicant following his attack on the victim, in order to conclude that the defence of mental illness was not established.

65. [284]

    It was also submitted that the trial judge placed too much weight on the behaviour of the applicant before and after the stabbing, including whether the applicant was attempting to commit suicide when being pursued by police in Casino, or was fleeing because he knew that what he had done was wrong.

66. [285]

    Significant emphasis was placed on the evidence of Dr Westmore. It was submitted that Dr Westmore, during his examination-in-chief, repeatedly warned against placing “too much weight” on seemingly rational behaviour of the applicant in assessing whether he knew that what he was doing was wrong.

67. [286]

    In particular, attention was drawn to the following remarks of Dr Westmore:

68. [287]

    Further, at TT 11.28:

69. [288]

    And finally, at TT 12.16:

70. [289]

    It was submitted that the issue of “calculated and rational” behaviour surrounding the physical elements of an offence was relevantly discussed in Da-Pra v R, at [371]:

71. [290]

    Finally, it was submitted that on all the evidence, including the opinions of psychiatrists about the demeanour of the applicant in the recorded interview, this Court would be satisfied, on the balance of probabilities, that the defence of mental illness had been established.

72. [291]

    In oral submissions, senior counsel also emphasised the proposition that the trial judge placed too much weight on numerous matters in the category of alleged “calculated rational behaviour” in assessing whether the applicant appreciated the moral wrongfulness of his actions. Reference was again made to the evidence of Dr Westmore, and that doctor’s explanation that, speaking generally, despite the presence of rational and calculated behaviour on the part of persons who commit the physical elements of offences, they may nevertheless be not only mentally ill, but also not aware of the moral wrongfulness of what they were doing.

73. [292]

    In written submissions, the Crown invited attention to the finding of both psychiatrists that the applicant was indeed aware of the nature and quality of his behaviour at the time he stabbed the victim. Thus, the central question for determination devolves to whether, on the balance of probabilities, the applicant knew that what he was doing was wrong.

74. [293]

    It was submitted that the evidence of the psychiatrists with regard to that question was not identical. Dr Westmore, in his second report, stated that the applicant’s disease of the mind “would have totally deprived him of the capacity to know that he ought not to have acted as he did towards the victim”, and said “I believe [the applicant] could raise a mental illness defence to the matter now before the Court”. In contrast, Dr Adams was “somewhat more circumspect”, in that he stated that it “was likely” that at the time of the offending the applicant “did not fully understand the wrongfulness of his behaviour”.

75. [294]

    In Dr Westmore’s oral evidence, he agreed that the conduct of the applicant after the attack indicated that he was aware of the illegality of his actions, but was “compromised in his ability to conceptualise and consider the wrongfulness of his actions in a moral sense”. The psychiatrist also agreed that the boundary between a schizophrenic person who satisfies the second limb of M’Naghten and one who does not involves a “moving line”.

76. [295]

    Attention was also invited to the differing accounts the applicant gave about the selection of victim, as follows. The applicant told Dr Westmore that it “was the same chick that was taunting me that afternoon”; he told police, however, that the victim was “some girl” chosen at random. Dr Westmore opined that it was not clear whether the difference in those accounts “reflects a deliberate attempt by him to provide a new history which may have some forensic gain for him or whether the account he gave me reflects a retrospective delusional belief”.

77. [296]

    Ultimately, it was submitted that the combined force of the evidence was consistent with the trial judge’s conclusion that, notwithstanding the applicant’s mental illness, he understood the wrongfulness of his actions, or rather that the contrary proposition had not been proven on balance.

78. [297]

    That evidence included: the applicant reporting to Dr Adams that he had had thoughts of killing people since he was a teenager; he had contemplated doing so for months prior to the attack; his research into serial killers; the conflicting accounts about whether he suffered auditory hallucinations, and whether the victim was part of a delusion; the stealing of the knife in the afternoon prior to the attack; the expressed desire of the applicant to kill as many people as he could; the fact that the applicant was driving around many towns in the Northern Rivers, looking for people who were alone; the fact that such people would be more vulnerable to attack than people who were in company; the fact that the ultimate victim was a woman and not a man; the fact that the applicant did not attack the male console operator at the Lismore service station; the secreting of the knife behind the back of the applicant as he approached the victim; his aiming for the vital organs of the victim during the stabbing; his undoubted intention to kill; the finding that the applicant appreciated that that the victim tried to defend herself; the retreat of the applicant to his vehicle when the taxi approached, his failure to attack that gentleman, and his speedy departure; the fact that the applicant accelerated in an effort to escape the police; and finally that the finding of the trial judge that the applicant was not trying to commit suicide when he crashed his car was well open on the evidence, bearing in mind that, afterwards, he continued to flee on foot.

79. [298]

    In oral submissions, emphasis was placed on the proposition that this case could not be categorised as one where the psychiatrists were in “furious and firm agreement, and it was capricious of the trial judge to disregard their expert opinion”.

80. [299]

    In accordance with my above analysis of the nature of the review pursuant to the section, and the common law test referred to in s 38 of the MHFP Act, the question is whether the accused has proven, on the balance of probabilities, that, at the time of his acts, he was suffering from a disease of the mind that led to a defect of reason on his part, which in turn led him to fail to appreciate either the nature and quality of his acts, or to fail to appreciate that they were wrong.

81. [300]

    And the law is clear that it is not just a matter of appreciating the legal or superficial wrongfulness of what one is doing; the defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts.

82. [301]

    Working my way through the elements of the defence, in my opinion the evidence is overwhelming that, at the time that he performed the physical acts that underpinned the offences, the applicant suffered from a disease of the mind; namely, paranoid schizophrenia. The parties were in agreement about that; the psychiatrists were unanimous about it; and the trial judge accepted it without reservation.

83. [302]

    I am also abundantly satisfied that, at the time, that disease of the mind led to a defect of reason on the part of the applicant. I say that because of the analysis of the psychiatrists about the applicant’s delusional beliefs; their persecutory content; his ideas of reference; and his auditory perceptual disturbances. Again, the trial judge was comfortably of the same view.

84. [303]

    I am also of the opinion that, at the time that he brutally and repeatedly stabbed the victim, the applicant was well aware of the nature and quality of his acts. The entirety of his versions of events is to that effect. And there is no suggestion in the evidence that, as a result of mental illness, the applicant believed (for example) that he was merely disabling an android, or an alien impostor, or otherwise not inflicting grave injury by way of a readily fatal weapon upon the body of a fellow human being. Yet again, I am in respectful agreement with the trial judge about that element of the affirmative defence.

85. [304]

    I also consider that the applicant appreciated the formal legal wrongfulness of what he was doing. I say that because: during his extended drive around the Northern Rivers, he stayed within the speed limit; he parked his vehicle around the corner from where the victim was walking; he departed when the taxi driver approached; and, at least at the first stage of the police pursuit, he was seeking to escape from them. He also fled from them on foot after his vehicle crashed. In other words, I have no difficulty in finding that the applicant appreciated, on some level, that he was liable to apprehension by the police and detention by the criminal justice system if he were to kill other people. Yet again, the parties, the psychiatrists, the trial judge, and I are in agreement about this element of the offence.

86. [305]

    The central, difficult, and contestable question in this appeal is whether the evidence establishes, on the balance of probabilities, that the applicant did not appreciate, in a considered way, the moral wrongfulness of attacking the victim with intent to kill her. Aspects of the evidence that are against establishment of that aspect of the defence are as follows.

87. [306]

    First, all of the factors that I have recounted immediately above may demonstrate not just appreciation of legal wrongfulness, but also appreciation of moral wrongfulness. After all, the two are not entirely separate. And even many disturbed people surely appreciate the moral wrongfulness of intentionally bringing the life of a fellow human being to an end, even leaving aside the reaction of the criminal justice system to such a crime.

88. [307]

    Secondly, one can readily infer a degree of planning underpinning the offence, not least by the presence of weapons in the vehicle of the applicant, including the weapon that he actually used.

89. [308]

    Thirdly, despite his professed intention to kill as many persons as possible that evening, the applicant did not attack the male console operator in the service station. That might suggest a considered approach to the intention to kill, whereby the applicant refrained from effecting it when he may not succeed, or may more readily have been apprehended (by way of CCTV, for example). That in turn may indicate appreciation of moral wrongfulness.

90. [309]

    Fourthly, the approach to the victim with the knife secreted behind his back certainly shows that the applicant appreciated that what he proposed to do must be kept hidden, and that may support an appreciation of moral wrongfulness.

91. [310]

    Fifthly, the extreme ferocity of the attack itself may support the proposition that even a very disturbed person would appreciate its moral wrongfulness.

92. [311]

    Sixthly, his response to the arrival of the taxi driver by fleeing the scene and thereafter the police may support the proposition that the applicant appreciated that he had done something grossly immoral.

93. [312]

    In my opinion, the significant countervailing factors are as follows.

94. [313]

    First, the mental illness from which the applicant suffered is a significant one. It featured auditory hallucinations, ideas of reference, and paranoid delusions. On the applicant’s earliest version of events, his attempt to kill the victim, and the plan to kill many other persons, was founded on the proposition that others were oppressing him, and accusing him of being a paedophile. That proposition was not just unlikely; based upon what his mother had to say, it was demonstratably delusional.

95. [314]

    Secondly, although the difference between appreciation of legal wrongfulness and moral wrongfulness may be a refined one, and evidence of appreciation of the former may be relevant to appreciation of the latter, the law is clear that there is a distinction between the two. And it is not difficult to think of hypothetical examples whereby a very disturbed person may appreciate the former but not the latter: a person suffering command hallucinations that he or she believes are direct messages from a divinity may completely understand that society will react to his or her proposed actions with incarceration or other punishment. But the person may also believe that society is (unlike the person) unenlightened by the divine voice, and through its criminal justice system is standing in the way of a divine purpose that is utterly righteous.

96. [315]

    In short, although connected, appreciation of legal and moral wrongfulness are distinct states of mind. And particularly in the case of significantly mentally ill people, one can readily see the conceptual difference between the two.

97. [316]

    Thirdly, the same may be said about planning: it bespeaks an intellectual engagement with physical circumstances and consequences, but not necessarily an engagement with moral questions. Speaking more generally about the connection between planning and appreciation of moral wrongfulness, it is not difficult to think of examples from the 20th century whereby meticulously planned projects were undertaken at the behest of almost certainly disturbed leaders who had no moral appreciation of the gross wrongfulness of what they were seeking to achieve.

98. [317]

    Fourthly, the contents of the conversations that the applicant had with others are, in my opinion, significant to this question. In particular, the contents of the recorded interview are illuminating. They show that the applicant readily admitted in detail not only the attack; not only the intention to kill at the time of it; but also the plan to commit mass homicide that evening. The expansive answers given to the questions of all of the police officers, whereby the applicant admitted all of that, is an important part of my determination.

99. [318]

    Fifthly, even more important than the content of what he had to say is the affect of the applicant to be heard on the initial recording, and to be seen and heard on the longer one. He recounted the horrific details of the attack flatly, blithely, almost cheerfully, as if it were a banality. And he adopted the same manner with regard to the more general history of his intention to commit mass homicide that evening.

100. [319]

     Sixthly, although it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system.

101. [320]

     Seventhly, although I have reflected on the question, I do not believe that it could be conceivable that the affirmative defence could succeed with regard to one count, but not the other. By that I mean, I have reflected whether it could be the case that the applicant did not appreciate the moral wrongfulness of his attempt to kill, but did appreciate that it was morally wrong to cause the police to engage in a pursuit of him. Counter-intuitively, it could be the case that the applicant appreciated the wrongfulness of the less serious offence, bearing in mind that it was not central to his attempt to respond to his paranoid delusions by way of homicide. But I think that such an analysis would simply be too theoretical: after all, the pursuit occurred very soon after the attack, and the mind of the applicant was surely just as disordered then as it had been minutes beforehand.

102. [321]

     Eighthly, I respectfully agree that the evidence about what the applicant was seeking to achieve when he fled from police and his vehicle collided with the roundabout is equivocal. It is possible that his claim that the impact was an attempt to commit suicide is not correct. But ultimately, I regard all of that as of little moment, in the context of a man who unquestionably was suffering from a significant mental illness; who deludedly believed that he was being oppressed by others, as evidenced voices that he heard speaking about him that were simply not there; who conceived of a plan to commit mass homicide as a result; who put it into operation against an individual whom he had never met, and who had offered not the slightest provocation in reality towards him; and who thereafter cheerfully confessed the entirety of what he had done and intended to do.

103. [322]

     In short, this element of the defence is unquestionably finely balanced. But having undertaken a detailed review of all of the evidence placed before the trial judge, and bearing in mind that success with regard to this element and all elements of the affirmative defence requires only the merest “tipping of the scales” towards the proposition of the applicant in order to discharge the onus, I have respectfully come to a different view from that of the trial judge: I am satisfied on the balance of probabilities that, at the time he attacked the victim, the applicant did not appreciate the profound moral wrongfulness of his actions.

104. [323]

     The combination of that state of mind on my part and my analysis of the meaning of the section leads to the result that I would grant leave to appeal and uphold the appeal, quash the convictions, substitute two verdicts of not guilty on the grounds of mental illness, and make uncontroversial consequential orders pursuant to the MHFP Act.

105. [324]

     As against the possibility that my primary analysis is mistaken, I turn now to consider the other ground of appeal against conviction, and the grounds of appeal against sentence. Because of my determination with regard to this ground, however, all of the following analysis is contingent, and will be very concise.

Ground 1 of the conviction appeal

1. [325]

   I repeat the ground for the convenience of the reader:

2. [326]

   In written submissions, senior counsel for the applicant detailed the latter evidence of Dr Westmore. In his third report, the psychiatrist noted:

3. [327]

   In addition, reliance was placed on what Dr Westmore said about the applicant’s demeanour in his evidence-in-chief:

4. [328]

   Later, in cross-examination, Dr Westmore was asked:

5. [329]

   Whilst it was acknowledged that the trial judge did refer to Dr Westmore’s third report, it was submitted that “he failed to mention the concluding opinion of the doctor”, namely, that the applicant had “no insight into the wrongness of his actions”.

6. [330]

   In addition, whilst the trial judge did refer to Dr Adams’ conclusions about the applicant’s mental state at the time of the offence, he did not refer to the psychiatrist’s observations of the applicant’s ERISP.

7. [331]

   In summary, it was submitted that the trial judge made no attempt to reconcile the evidence of the psychiatrists about the demeanour of the applicant during the recorded interview. That was said to be important, because it demonstrated the applicant’s demeanour shortly after the attack, and was certainly relevant to the trial judge’s ultimate conclusion that the mental illness defence had not been made out.

8. [332]

   In oral submissions, by reference to the well-established obligation of a judge to give reasons, it was said that the “emotional state of the appellant as depicted in the ERISP interview shortly after the incidents going to this in the context of knowing the wrongness of his actions was the significant factual issue”, and that this was an “evidential dispute that the trial judge failed to resolve”.

9. [333]

   It was submitted that the longer recorded interview occurred three and a half hours after the stabbing, and there was no evidence of a change in the emotional state of the applicant. That was said to be consistent with the observations of Senior Constable Hudson, in that, during the first interview shortly after the applicant’s arrest, the applicant was said to be staring straight ahead and remaining emotionless.

10. [334]

    Furthermore, both psychiatrists had the benefit of viewing the recorded interview prior to coming to a conclusive view on the availability of the defence. It was submitted that the affect of the applicant was an issue that both counsel canvassed during the oral evidence of Dr Westmore. And yet, there was no reference in the reasons for verdict to this issue.

11. [335]

    Senior counsel did concede, however, that neither counsel emphasised the importance of the applicant’s demeanour in his ERISP in their final addresses.

12. [336]

    Attention was also invited to Dr Westmore’s first report – which was based on the transcript of the recorded interview but not the recording itself – in which the psychiatrist had recorded that the applicant gave “an extraordinary frank account of his actions leading up to the incident”.

13. [337]

    Further, after viewing the video, Dr Westmore opined that the applicant when recounting the history of the incident showed no “apparent emotional reaction not did he express any emotional feelings or apparent empathy for the victim” and had “no insight into the wrongness of his actions”. Again, it was submitted that the trial judge did not include a reference to this significant aspect, nor attempt to reconcile it with the verdicts that rejected the defence.

14. [338]

    In written and oral submissions, the Crown emphasised that there was no obligation on the trial judge to refer to every item of evidence, provided the judgment adequately demonstrated his Honour’s reasoning.

15. [339]

    It was also submitted that the trial judge did, in fact, address the evidence of the psychiatrists in his judgment, including the presentation of the applicant in the recorded interview. That was so despite the fact that neither counsel made the submission that his Honour should turn his mind to it as a material, decisive factor.

16. [340]

    It was emphasised that the trial judge extracted extended portions of the recorded interview at pages 28 to 35 of his reasons for verdict. Later, at page 41, when discussing the evidence of Dr Adams, his Honour stated:

17. [341]

    Further, at pages 42 to 51, the trial judge considered the evidence of Dr Westmore, referred to the psychiatrist’s desire to view the recorded interview in order to assess the applicant’s demeanour, and recited at length the oral questioning of Dr Westmore in relation to issue of whether the applicant appreciated the wrongfulness of his actions.

18. [342]

    Senior counsel submitted that neither doctor relied on the recorded interview as crucial evidence of mental illness, or a significant determinative factor as to whether the defence was available, as both psychiatrists noted that the applicant’s presentation was not essential to the ultimate diagnosis. In particular, Dr Westmore diagnosed chronic paranoid schizophrenia, and stated that the applicant’s presentation in the recorded interview “did not, alone, enable any diagnostic opinions to be expressed”. Further, it was in the second report of Dr Westmore, before he viewed the ERISP, that the psychiatrist opined that the applicant had the mental illness defence available to him.

19. [343]

    Ultimately, it was submitted that the trial judge did not rely upon the applicant’s demeanour as the decisive factor in the conclusion that the applicant had not discharged the onus of proving the defence of mental illness. Instead, a number of other factors led his Honour to conclude that the second limb of the defence had not been made out, including: the limited evidence of the applicant’s prior mental health or presentation well before the offences; the unreliable history given to the psychiatrists; the stealing of the knife, combined with the leaving home that evening armed with that knife intending to kill; the patrolling for victims; the secreting of the knife; the flight from the taxi driver and police; the viciousness of the attack; and the rejection of the thesis that the applicant was attempting to commit suicide when he crashed his vehicle.

20. [344]

    In short, it was said that the presentation of the applicant in the recorded interview was “but one (relatively unimportant) aspect of the evidence of the appellant’s mental illness”, and that it was adequately addressed in the judgment.

21. [345]

    Turning to my contingent determination of this ground, the trial judge gave perfectly adequate reasons for his determination about whether or not the defence had been established on the balance of probabilities. As the Crown submitted before this Court, it was not incumbent upon the trial judge to refer to every single piece of evidence, or every single submission, in the reasons for verdict. And it is quite clear that the trial judge took into account the demeanour of the applicant during the recorded interview: so much is apparent from the questions his Honour asked of Dr Westmore, and his reference to the opinions of the psychiatrists in his judgment. Finally, it is surely significant to the determination of this ground that the particular matter now complained of was not emphasised in written and oral submissions of defence counsel with regard to verdict.

22. [346]

    If I be wrong in my primary analysis, I would not uphold this ground.

Appeal against sentence

1. [347]

   Before turning to my contingent analysis of the proposed grounds of appeal against sentence, I briefly summarise the findings of fact and evaluative judgments made by his Honour in the remarks on sentence, to the extent that they are additional to all of the objective and subjective features to which I have referred at length above.

2. [348]

   First, his Honour analysed the evidence about the medication the applicant received and the medical practitioners whom he attended derived from Medicare records. That prescription of medication was under the Pharmaceutical Benefits Scheme, from nine providers, across South Australia, New South Wales, and Queensland, from 28 January 2011 until 20 November 2014.

3. [349]

   In addition, his Honour summarised the documents from Prospect Medical Centre in South Australia, in order to discuss in more detail the applicant’s past history of depression and the fact that no “perceptual abnormalities or psychotic symptoms” were observed by medical practitioners between April 2012 and April 2013.

4. [350]

   His Honour also discussed the report of Dr Cescato, a clinical psychologist, who had seen the applicant on 6 December 2012 and 17 January 2013. That report said that the applicant had ceased taking his medication; that he suffered a major depressive disorder; and that later appointments were cancelled. The psychologist also discussed contacting the applicant’s mother after his arrest, and how the applicant had been prescribed Zyprexa from another practitioner in upon his return to New South Wales in May or June 2013; however the applicant did not commence to take it.

5. [351]

   Finally, the remarks on sentence refer to the fact that, in the Justice Health materials, reference was made to the assessment that was undertaken when the applicant came into custody. On a self-report assessment, the applicant obtained a score consistent with severe depression and/or anxiety disorder. The records also discuss the history of treatment for mental illness, including schizophrenia and depression. Numerous other entries were discussed, including: that he had cut his wrists shortly after entering custody in November 2014; that he had first experienced auditory hallucinations in high school; that a doctor recorded an impression of untreated schizophrenia comorbid with depression; the expression of odd ideas about emission of energy from trees and harvest insects; and continuing psychosis, hallucinations, paranoia, and ideas of persecution by other inmates.

6. [352]

   In 2016, a Justice Health psychologist, Dr Dayalan, made a more recent diagnosis of schizophrenia. His Honour noted improvements in the applicant’s mental state due to his current medication; the implication that his condition is “manageable under appropriate medication properly monitored”; and that there was no evidence from health care providers of his presentation in the weeks leading up to the offence.

7. [353]

   Separately to the material reviewed in the remarks on sentence, I also record at this stage that a distinguished forensic psychiatrist provided documentary and oral evidence before us. Senior counsel for the applicant made it clear that that evidence was only relied upon if error were established in the appeal against sentence. Because of my opinion expressed below that no error in sentence has been established, I shall not summarise that evidence.

Grounds of appeal against sentence

1. [354]

   I repeat for the convenience of the reader the grounds of appeal against sentence that were notified and pressed:

Ground 1 of the sentence appeal

1. [355]

   The submissions of senior counsel for the applicant with regard to this ground may be summarised as follows.

2. [356]

   First, it was submitted that this Court, in accordance with what was said by R A Hulme J in JM v R (2014) NSWCCA 297, can consider the indicative sentences provided as a “guide to whether error has been established in relation to the aggregate sentence”.

3. [357]

   Secondly, as the applicant’s moral culpability was “significantly compromised” because of his mental condition at the time of the commission of the offence, the indicative sentence of 20 years for the wounding with intent to murder is disproportionate. That disproportionality was said to be apparent from both the objective circumstances of the offence, and the matters personal to the applicant. Reliance was placed on Yun v R [2017] NSWCCA 317, at [47], for the proposition that “an offender’s mental condition at the time of the commission of the offence is a critical component of ‘moral culpability’ which in turn affects the assessment of ‘objective seriousness’”.

4. [358]

   Third, the indicative sentence of 1 year 4 months for the police pursuit was similarly disproportionate to the objective circumstances of that offence. That was submitted to be due to the applicant’s moral culpability, his age of 22, and the fact that he had no prior criminal record.

5. [359]

   In summary, it was submitted that both indicative sentences were suggestive of error; that in turn led to the aggregate sentence of 20 years 6 months being disproportionate to the objective seriousness of the offence; and that the notional accumulation of merely 6 months did not alleviate the error.

6. [360]

   Turning briefly to my contingent determination of this ground, the objective features of the primary count can only be described as horrific. It will be recalled that, objectively, the vulnerable young victim was ferociously attacked; she suffered a number of gaping knife wounds, including one that penetrated her brain; when she arrived at the hospital she was minutes from death; and the attack was committed in the context of a plan to commit mass murder. It must be assessed objectively as an exceptionally grave example of “statutory” attempted murder. It is no exaggeration to say that, purely objectively, it approaches the worst class of case of a wounding with intent to murder.

7. [361]

   Furthermore, whilst it is true that the moral culpability of the applicant was very much reduced by his mental condition, there inevitably arose a very real question about the protection of the community in this case. And in any event, the ground as framed speaks of a disjunction between the aggregate sentence and the objective features of the offending.

8. [362]

   For all of those reasons, I do not accept that the aggregate sentence of imprisonment for 20 years 6 months was disproportionate to the objective features of the offending.

Ground 2 of the sentence appeal

1. [363]

   Senior counsel for the applicant submitted that, as this case was a “one issue trial”, s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied, due to “the degree to which the administration of justice has been facilitated by the defence”, which includes pre-trial disclosure. The points were made that the elements of the counts on the indictment were conceded, and the prosecution “brief” was provided without objection.

2. [364]

   This issue was said to be raised by defence counsel during the proceedings on sentence, at TT 13.05:

3. [365]

   Reliance was placed on the judgment of Johnson J in R v Fang (No 4) [2017] NSWSC 323, whereby a discount was applied to the sentence of an offender for the facilitation of the administration of justice, at [69]:

4. [366]

   It was submitted that there was “no difference” between the circumstances of Fang (No 4) and to this case, whereby the applicant made significant pre-trial disclosures to facilitate the administration of justice.

5. [367]

   Furthermore, as the Crown did not oppose the giving of such consideration, and as there is nothing in the remarks on sentence on this point, senior counsel submitted that one could infer that its absence was simply an oversight on the part of his Honour.

6. [368]

   Turning to my contingent determination of this ground, the expeditious presentation of the matter was “part and parcel” of the fact that there were no issues of fact or law between the parties. In other words, whilst it is true that things were presented by way of a convenient forensic shorthand (which, as it happened, did not find favour with the tribunal of fact), there is no reason why the applicant needed to have been given credit for that at first instance.

7. [369]

   Quite apart from that, any credit to be given with regard to this aspect of the matter would utterly pale into insignificance in comparison to the objective gravity of the matter, and the need for protection of the community.

8. [370]

   If I be wrong about the conviction appeal, I would not uphold this ground.

Ground 3 of the sentence appeal

1. [371]

   The submissions in support of the proposition that the aggregate head sentence and aggregate non-parole period are manifestly excessive may be summarised as follows.

2. [372]

   It was said that both the indicative sentences and aggregate sentence are manifestly excessive. Senior counsel relied on many of the matters raised in support of grounds one and two, including the findings of his Honour that the applicant’s moral culpability was “severely compromised”, and that there should be a reduction accorded for facilitating the administration of justice.

3. [373]

   Other factors relied on to demonstrate a manifestly excessive sentence included: the applicant’s mental illness, in relation to general and specific deterrence, denunciation and the fact that gaol time will “be more onerous as a result of his mental disability”; his relatively young age of 22; and the fact that he possessed no prior convictions at the time of the offending.

4. [374]

   In oral submissions, emphasis was again placed on the “disproportionate” indicative sentence for the police pursuit offence of 1 year 6 months. Senior counsel for the applicant submitted that, if it had been dealt with on its own in the District Court or Local Court, it would be unlikely that the applicant, a young man with no criminal record, would have received any gaol sentence for it at all.

5. [375]

   Turning to my determination of this ground, much of what I have written about the question of objective seriousness is apposite here.

6. [376]

   On the contingent assumption that the applicant was indeed criminally liable for the offences: he came very close indeed to murdering an innocent young woman. Her ordeal was physically and psychologically extremely traumatic, and no doubt has had its permanent consequences. The driving offence surely endangered members of the community, even allowing for the lateness of the hour. Whilst it is true that the applicant accepted that he had committed the physical acts alleged against him, had no criminal record, and his mental illness was a powerfully mitigating feature, the protection of the community was a significant factor, and the principles in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 undoubtedly had a central role to play on sentence. The accumulation within the sentencing structure meant that the period in custody solely referable to the secondary offence was as little as six months. Finally, the aggregate sentence features a marked reduction in the “statutory ratio” between the aggregate head sentence and the aggregate non-parole period.

7. [377]

   In all of those circumstances, I do not believe that the aggregate sentence can be characterised as manifestly excessive. It is certainly substantial, but that is an inevitable consequence of the gravity of the primary offending.

8. [378]

   If I be wrong about the appeal against conviction, I would not uphold this ground of appeal against sentence.

Conclusion

1. [379]

   To summarise then the entirety of the above analysis: I consider that s 7(4) of the Criminal Appeal Act is to the effect that there is to be a de novo determination by this Court of the question of whether the defence of mental illness has been established when it has been rejected at first instance. Analysing the evidence in accordance with that kind of review, I consider that the affirmative defence is established. If I be wrong in that analysis, I would not uphold the other ground of appeal against conviction, nor any of the grounds of appeal against sentence.

2. [380]

   Finally, because I propose that the result of this litigation be that the applicant – who was found guilty at trial of a very grave attempted murder, and who has always admitted that he repeatedly stabbed the victim with intent to kill her – will nevertheless on appeal be acquitted of that offence, I believe that it is appropriate for me to explain the meaning and effect of the orders that I propose. They are the following.

3. [381]

   First, the effect of the proposed orders is that the applicant is not to be held criminally responsible for what occurred on the evening in question. But there is no question that he committed the physical acts underpinning the offences, and the verdicts of acquittal do not say anything to the contrary.

4. [382]

   Secondly, the verdicts of not guilty on the ground of mental illness are completely different from a straightforward verdict of not guilty, whereby the alleged offender is not liable to any further or future constraint on his or her liberty. To the contrary, the effect of the orders I propose is that the applicant will be committed to the care of the Mental Health Review Tribunal (the Tribunal). Pursuant to the MHFP Act, the Tribunal is not to release the applicant unless and until it is affirmatively satisfied that he does not constitute a serious risk to others or himself.

5. [383]

   Thirdly and finally, in other words, it is perfectly possible that the applicant may spend more time in detention, pursuant to the orders I propose, than he would have spent in custody, pursuant to the convictions and sentences imposed at first instance.

Proposed orders

1. [384]

   I propose the following orders: