IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF TASMANIA

Criminal Law and Practice - Jurisdiction, Practice and Procedure - Insanity - Whether evidence of mental disease not amounting to insanity relevant to question whether accused ought to have known his act likely to cause death - Whether, if so, to order retrial or substitute manslaughter verdict. Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, considered.

COX J This Court is required by an order of the High Court of Australia allowing the appellant's appeal to it, to consider whether evidence held by the High Court to have been wrongly excluded by the learned trial judge as irrelevant to the issue of whether or not the appellant formed a specific intent to kill the deceased was nonetheless irrelevant and inadmissible on the issue whether the appellant "ought to have known" that his conduct was "likely to cause death in the circumstances". As the learned trial judge left to the jury as an alternative to one based on the specific intents referred to in the Criminal Code, s157(1)(a) and (b) a verdict based on the state of mind required by s157(1)(c), it is difficult to see that the appellant would have sustained any injustice by the exclusion of that evidence if it was irrelevant to that issue.

2. The evidence proffered by the appellant on a former trial in the form of an unsworn statement and tendered by the Crown at the trial, the subject of this appeal, contained the following description of the circumstances in which the deceased met his death:

"I held the gun out on the right hand side up to my head,

thumb on the trigger, right hand. I wanted him to see me

shot myself. I was standing just down from the top of the

drain. I heard Dad coming. I just saw him - he came out

from around a bush he was about seven to eight metres away.

I don't know whether he saw me. Then everything flashed

through my head.

Him bashing Mum, Mum being bashed by my step-father, flashes

through me mind were pictures of Nan's coffin, arguments

between Mum and Dad, what he'd done to me, all muddled

thoughts - then why not him instead of me - he caused most of

it. The thoughts went through my head not in any order but

all muddled and at the same time. I put the gun from my head

down to my hip and pulled the trigger within a second. It

went off, Dad fell down, I didn't see where the bullet hit,

he fell on his face. I just pointed the gun at him and

pulled the trigger, I didn't aim it. He didn't say anything

before or after the gun went off. It all happened at once -

very quickly all in the one moment. At the time I pulled the

trigger I can't recall any thoughts that were happening. I

wasn't thinking about what I was doing or the consequences."

3. Part of the evidence of Professor Jones which the learned trial judge ruled inadmissible was that the appellant suffered a mental disease which would render him more prone to attempt suicide and that such a person, if about to attempt to commit suicide, would be prone to fragmented and disorganised thinking patterns. At one stage he said "A person with this disorder would be more likely to act at a precognitive level, would act rather than think about it." Although the main thrust of Professor Jones' evidence was directed to the possible reduction of the appellant's capacity to form a specific intent under s157(1)(a) or (b), material which the High Court has held is relevant to and admissible on that issue even though the jury may not be persuaded the appellant's condition met any of the criteria laid down in s16 for excusing his act on the ground of insanity, the Professor's evidence suggests a state of affairs in which the appellant may not have appreciated the consequences of the act of discharging a loaded rifle in the direction of his father, and furthermore that his ability to stop and think about the probable consequences of his act was diminished by the tendency induced by the mental disease to "act rather than think about it".

4. The mental element laid down in s157(1)(c) is either that he knew, or that he ought to have known, that the act was likely to cause death in the circumstances, although he had no wish to cause death. There seems little doubt that such evidence would be relevant to the question whether the appellant, at the crucial time, "knew" of that likelihood. The High Court in its reasons for judgment in the present case (Hawkins v The Queen [1994] HCA 28; (1994) 68 ALJR 572) directed attention rather to the question whether that evidence would be relevant to and admissible on the issue whether the appellant "ought to have known" that his conduct was "likely to cause death in the circumstances", prefacing that observation with the comment "assuming the evidence of the psychiatrists would have been relevant to and admissible on the issue whether the appellant knew that his conduct was 'likely to cause death in the circumstances'" (at 580). In determining whether an accused person ought to have known of the likelihood of that consequence, Mason, Wilson and Deane JJ in Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 28-29 emphasised that:

"The starting point of the inquiry on the question whether an

accused ought to have known that his or her actions were

likely to cause death must be the knowledge, the intelligence

and, where relevant, the expertise which the particular

accused actually possessed. The relevant question is not

whether some hypothetical reasonable person in the position

of the accused would have appreciated the likely consequences

of the applicant's act. It is what the particular accused,

with his or her actual knowledge and capacity, ought to have

known in the circumstances in which he or she was placed.

Inevitably, the word 'ought' requires the making of a

subjective judgment by a jury. The jury must be persuaded,

on the criminal onus in the context of a murder trial, that

the established circumstances were such that the particular

accused, with the knowledge and the capacity which he or she

actually possessed, ought to have thought about the likely

consequences of his or her action. They must also be

persuaded, again on that onus and in the context of such a

trial, that if the particular accused had stopped to think to

the extent that he ought to have, the result would, as a

matter of fact, have been that he or she would have known or

appreciated that the relevant act or acts were likely to

cause death."

5. In its application to the requirement that the appellant should stop and think to the extent that he ought to have, Professor Jones' evidence that at a time of heightened agitation due to his mental disease he would act rather than think about it is, in my opinion, highly relevant. The inquiry is a subjective one and evidence of this kind must be relevant and admissible on it. In these circumstances I do not think a finding that he ought to have known death was likely was inevitable if the evidence had been received. It is not, accordingly, an appropriate case for the application of the proviso.

6. As the appellant does not dispute his criminal responsibility for the unlawful act which caused his father's death, although he does dispute he had the state of mind necessary for a finding of murder, the substitution by this Court of a finding of guilty of manslaughter is within our discretion (the Code, s403(2)). The High Court, in allowing the appeal from this Court, has confirmed the power of the Court of Criminal Appeal to do so (at 581) and the appellant asks that we adopt that course.

7. The substitution of the lesser verdict is a course which has been adopted where the appeal court is of opinion that had the error not occurred or misdirection not been given, a verdict of murder might have been sustained (Hughes v The King [1951] HCA 34; (1951) 84 CLR 170 at 175; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107). In Phillips v The Queen (No 2) (1971) Tas SR 360 the Court of Criminal Appeal substituted a verdict of manslaughter where, on the second trial of the appellant for murder the trial being otherwise regular and conducted without error, a verdict of guilty had been erroneously entered on a majority finding by the jury contrary to the Jury Act 1899, s48. At 366 Burbury CJ said:

"Since the abolition of capital punishment in Tasmania the

principle that the court will lean towards exercising the

discretion to substitute a verdict of manslaughter instead of

putting the appellant in jeopardy for murder again as being

in favorem vitae is no longer applicable, but nevertheless a

conviction for the crime of murder carries very serious

consequences, and the fact that the appellant has already

faced two abortive trials for murder is, of course, a cogent

factor entering into the exercise of our discretion."

8. Crawford J, being of the view that the appeal should be dismissed for want of jurisdiction, did not express a view on the issue of the substituted verdict. Nettlefold J noted that the trial judge, although prepared to leave murder to the jury, appeared not to be free of doubt as to whether a verdict of murder would be a safe one in all the circumstances. At 377 he concluded:

"Having regard to the applicant's request to the court to

substitute a verdict for manslaughter, the state of mind of

the learned trial judge, the risk of prejudice to the

appellant if there is a third trial, the fact that there is a

clear case for manslaughter, but some doubt as to the case

for murder, I have reached the clear conclusion that this

court should allow the appeal and exercise its power to

substitute a verdict of guilty of manslaughter."

9. Phillips was an unusual case where the Crown alleged the appellant had left a women he had assaulted, unconscious on a beach in a position where she was shortly thereafter drowned by the incoming tide. It was a less clear-cut contest than one in which there was a voluntary and intentional unlawful discharge of a weapon known to be loaded and pointed in the direction of the deceased. Nevertheless, the appellant at the time was barely 16 years of age and the evidence adduced on the voir dire supported the view that he was in a very excited, confused and unstable state due to a mental disorder when he killed his own father. He has already faced three full trials. The first ended with the jury being unable to agree upon a verdict, but the second and third have resulted in his being proclaimed a murderer on each occasion. All three trials have been held in Burnie, presumably because that is where the balance of convenience suggested that they should be held. A further trial in Burnie would undoubtedly be likely to expose the appellant to prejudice by reason of the probability that at least one member of the jury would be aware of the result of the last two trials and might pass that information on to his colleagues. Although there is power to order a different venue, the risk, though reduced, yet remains. In my view, in all the circumstances, the appropriate course to adopt is to substitute for the verdict of murder found by the jury a verdict of guilty of manslaughter and to pass an appropriate sentence having heard the parties thereon.

CRAWFORD J On his third trial the appellant was convicted of murdering his father. During the course of the trial the learned trial judge ruled that the evidence of Professor Jones that by reason of a mental disease, not resulting in one of the conditions prescribed by the Criminal Code, s16(1)(a) or (b), the accused's capacity to form one of the specific intents necessary for murder under s157(1)(a) and (b) was diminished or extinguished would not be admitted. This Court dismissed the appeal against the conviction. Hawkins v R (No 2) (1993) 68 A Crim R 1.

2. On appeal in Hawkins v R [1994] HCA 28; (1994) 68 ALJR 572 the High Court held at 580 that evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was "voluntary and intentional" within the meaning of those terms in s13. But the court held that such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars(a) and (b) of s157(1).

3. The High Court allowed the appeal, set aside the order of this Court and remitted the case for this Court to make such consequential orders as it sees fit having regard to issues arising under s157(1)(c), the relevance of the excluded evidence to those issues, whether the appeal should be dismissed under the proviso in s402(2) and, if not, whether this Court should substitute a conviction of manslaughter instead of ordering a new trial.

4. The learned trial judge left the jury with the issue, under s157(1)(c), whether the appellant was guilty of murder because he committed the homicide by means of an unlawful act which he knew, or ought to have known, to be likely to cause death in the circumstances, although he may have had no wish to cause death or bodily harm. In view of the judgment of the High Court as to the relevance and admissibility of the excluded evidence to the appellant's state of mind under s157(1)(a) and (b) it must follow that the evidence was also relevant and admissible to the issue whether the appellant in fact knew that his act of firing the rifle was likely to cause his father's death. If the jury had heard the evidence they might have concluded that they were left with a reasonable doubt that he did know that.

5. There is the further question whether the excluded evidence was relevant and admissible to the issue whether the appellant ought to have known that his act was likely to cause death. This in turn raises the question whether the test of what he ought to have known is a purely objective one or, if not, the extent to which it is a subjective one. Counsel for the Crown pointed to the appellant's version of the events which included that he was about to kill himself with the rifle but then turned it towards the deceased and fired, causing death. Counsel submitted that on the appellant's own version of the events if he did not know that death was likely he plainly ought to have known that.

6. The test of what the appellant "ought to have known" in this regard was authoritatively stated by Mason, Wilson and Deane JJ in Boughey v R [1986] HCA 29; (1986) 161 CLR 10 at 28-29 in a passage which included the following:

"The relevant question is not whether some hypothetical

reasonable person in the position of the accused would have

appreciated the likely consequences of the applicant's act.

It is what the particular accused, with his or her actual

knowledge and capacity, ought to have known in the

circumstances in which he or she was placed. Inevitably, the

word 'ought' requires the making of a subjective judgment by

a jury. The jury must be persuaded, on the criminal onus in

the context of a murder trial that the established

circumstances were such that the particular accused, with the

knowledge and the capacity which he or she actually

possessed, ought to have thought about the likely

consequences of his or her action. They must also be

persuaded, again on that onus and in the context of such a

trial, that if the particular accused had stopped to think to

the extent that he ought to have, the result would, as a

matter of fact, have been that he or she would have known or

appreciated that the relevant act or acts were likely to

cause death."

7. It is to be noted that in the last sentence the second part of the test is not what the appellant would have known if he had stopped to think, but to what extent he ought to have stopped to think and, if he had stopped to think to that extent, would he have known or appreciated that if he fired the rifle the death of his father was a likely result.

8. No complaint has been made by either party about the direction given by the learned trial judge to the jury concerning what the appellant "ought to have known" for the purposes of s157(1)(c). His Honour directed the jury as follows:

"Now, here you have to consider the position of the accused.

We're not talking about some hypothetical person when we talk

about 'ought to have known', we're talking about the accused.

Ought he to have known that the unlawful assault would be

likely to cause death in the circumstances. That is to say,

with the accused's actual state of knowledge and capacity as

you determine it to have been in the circumstances as he was

then placed, again as you think they were according to the

evidence, ought he to have known that the unlawful assault -

if you're satisfied it was - was likely to cause death, even

though he didn't wish death or bodily harm. The question is,

had the accused stopped to the extent that you think he

should have, would he have appreciated that death was likely

to ensue from the unlawful act. If he would have, if he'd

stopped to think to the extent you think he should have, then

you will be satisfied that he ought to have known death was

likely."

9. If the evidence of Professor Jones had not been rejected as inadmissible by the learned trial judge but had been heard by the jury, it might well have been material when the jury was considering what the appellant ought to have known when he fired the rifle. The evidence of Professor Jones included that the appellant may have been likely to act at a pre-cognitive level and may have tended to act rather than think about what he was doing. He may have been extremely anxious at the critical moment, having been about to take his own life, and with his disease, which Professor Jones labelled as an adolescent adjustment disorder, it is likely that he would have been more prone to fragmented and disorganised thinking patterns. All of this evidence would have been relevant to the question of what the appellant subjectively ought to have known. In these circumstances I do not see it as open to this Court to conclude under s402(2) that the appeal should be dismissed because no substantial miscarriage of justice has actually occurred because of the rejection of the evidence, notwithstanding that counsel for the appellant at the trial did not submit that the evidence was relevant to s157(1)(c).

10. The final question concerns the disposition of the case consequent upon the success of the appeal. Realistically there are two choices open to the Court. One is to order a new trial for murder pursuant to the power in s404. The other is to substitute for the verdict of guilty of murder, a verdict of guilty of manslaughter pursuant to the power in s403(2).

11. The Crown case has consistently been one of cold-blooded, premeditated murder. At the first trial, over which I presided, the jury were unable to agree on their verdict. Insanity was a major issue at that trial and it seemed most likely to me that the jury's difficulty in reaching a verdict arose because of that defence, that is to say the likely conflict within the jury was whether murder had been proved by the Crown or the defence of insanity had been proved by the defence. Guilty of manslaughter was a most unlikely verdict. At the outset of the second trial the appellant once again intended to raise insanity as a defence. However, during the trial he chose not to persist with that defence. The jury found him guilty of murder. Following a successful appeal based on judicial error he was tried for a third time. Once again he chose not to rely on insanity. Once again the jury found him guilty of murder and once again, because of judicial error, he has successfully appealed.

12. The evidence at the trial was strongly suggestive of premeditated murder, including evidence that he shot his father dead inside a pine plantation, leaving his body concealed therein. The validity of the psychiatric evidence that raised the possibility that he may not have had the specific intention necessary for murder under s157(1)(a) and (b) depended mainly on his veracity and on relatively little objective evidence. Indeed, his claim that he led his father inside that plantation, having arranged to be taken to the airport, so that his father could witness him committing suicide was in my view an extremely unlikely version of the events. Having particular regard to where the homicide was committed and the evidence of what the appellant did thereafter (he attempted to sell his father's assets and made sexual advances to his father's girlfriend according to the evidence) the Crown case was a strong one for a verdict of guilty of murder. That at his second and third trials judicial error occurred is unfortunate but I am unpersuaded that it is in the interests of justice that this Court should substitute a verdict of guilty of manslaughter. I would order that there be a new trial. Whether, after having regard to all the history and circumstances of the case, the trials and the appeals, the availability of witnesses and all other relevant considerations, it should be determined that a fourth trial is undesirable and should be avoided is I think more appropriately a decision for the Crown to make.

ZEEMAN J The appellant was charged with the murder of his father. At his first trial the jury were unable to agree. His second trial resulted in his conviction for murder but that conviction was quashed by this Court and a new trial ordered (Hawkins v R A105/1991). At his third trial the appellant again was convicted of murder and his appeal was dismissed by this Court (Hawkins v R (No 2) (1993) 68 A Crim R 1). The High Court granted the appellant leave to appeal against that dismissal. The appeal was allowed, the order of this Court set aside and the appeal remitted to this Court to make such consequential order as it sees fit in accordance with the judgment of the High Court (Hawkins v R [1994] HCA 28; (1994) 68 ALJR 572).

2. The principal issue the subject of the appeal to this Court, and of the subsequent appeal to the High Court, was whether evidence of mental disease is evidence which may be considered by a jury in their consideration of whether there has been established to their satisfaction the formation of one or other of the forms of specific intent referred to in the Criminal Code ("the Code"), s157(1)(a) and (b). The High Court held that this Court was in error in holding that certain evidence of mental disease was inadmissible on this issue.

3. However, the learned trial judge also left to the jury a third state of mind as a possible basis upon which they might convict the appellant of murder, namely that prescribed by the Code, s157(1)(c). As to that aspect of the case, the High Court said, at 580-581:

"The appellant's notice of appeal to the Court of Criminal

Appeal challenged the correctness of leaving the issues under

par (c) to the jury, but par (c) received little reference in

the judgments in the Court of Criminal Appeal and was not

made the subject of any particular issue in this Court.

Assuming that the evidence of the psychiatrists would have

been relevant to and admissible on the issue whether the

appellant knew that his conduct was 'likely to cause death in

the circumstances', it is another question whether that

evidence would have been relevant to and admissible on the

issue whether the appellant 'ought to have known' that his

conduct was 'likely to cause death in the circumstances'.

And if that evidence was irrelevant to and inadmissible on

that issue, it is a further question whether the verdict of

the jury, construed by reference to the evidence admitted on

the trial, necessarily carries findings adverse to the

appellant that culpable homicide was committed (i) by means

of an unlawful act (ii) which the offender ought to have

known to be likely to cause death.

If these questions arising under par (c) of s 157(1) were

resolved against the appellant, the case would, in the

absence of any reason to the contrary, be one for the

application of s 402(2) of the Code. That subsection

empowers the Court of Criminal Appeal, though upholding an

appeal point, to 'dismiss the appeal if it considers that no

substantial miscarriage of justice has actually occurred'.

As this Court is unable to resolve the questions arising

under par (c), it is necessary to remit the matter to the

Court of Criminal Appeal in order to determine what order

should be made consequent upon the allowing of the appeal to

this Court on the question of the admissibility of the

psychiatric evidence on the issues of specific intent arising

under pars (a) and (b).

If the Court of Criminal Appeal is of the opinion that the

questions arising under par (c) remain open and must be

resolved against the appellant, it will be for the Court of

Criminal Appeal to determine whether the appeal to it should

be dismissed pursuant to s 402(2) of the Code. If the appeal

is not so dismissed, it will be open to the Court of Criminal

Appeal to substitute a conviction of manslaughter and thereby

avoid the unfortunate necessity for a new trial. However, it

should be borne in mind that, if the evidence of Dr Sale and

Professor Jones had been admitted in the ordinary course of

the trial, the appellant might have been acquitted on the

ground of insanity despite his counsel's disclaimer of that

defence.

The case has come to this Court for decision on an important

question of law but, that question having been decided, it

must now be remitted to the Court of Criminal Appeal to

determine, in accordance with the judgment of this Court and

in the light of submissions to be made to the Court of

Criminal Appeal, what order should be made."

4. Those passages explain the reason for the appeal having been remitted to this Court and the nature of the questions which require consideration. At the outset I observe that the ground of appeal which specifically referred to s157(1)(c) was not concerned with any mental element arising under that paragraph. That ground asserted that the learned trial judge erred in law by directing the jury that it was open to them to convict the appellant of murder on the basis of s157(1)(c), but, as argued, it amounted to no more than a ground that there was no evidence before the jury upon the basis of which it was open to them to find that the appellant had committed any unlawful act within the meaning of s157(1)(c). That ground was rejected by all members of this Court and the grant of special leave to the High Court did not relate to that aspect of the case.

5. As to the application of the proviso on the possible basis suggested by the High Court, counsel for the respondent conceded that he had made no submission to this Court when the appeal was previously before it to the effect that the proviso ought to be applied on any such basis. When the Court heard argument on the appeal, senior counsel for the respondent submitted that the proviso ought to be applied by reason of quite different considerations and that argument found favour with a majority of the members of the Court.

6. In general terms, I consider that it is incumbent upon the Crown to raise any argument for the application of the proviso and that normally the Court ought not to consider its application by reference to considerations not raised by the Crown. However, the Court is now required to consider whether the proviso should be applied by reference to the considerations raised by the High Court, the respondent having submitted that the Court should dismiss the appeal on this basis.

7. Both the appellant and the respondent relied upon the following passage from the judgment of Mason, Wilson and Deane JJ in Boughey v R [1986] HCA 29; (1986) 161 CLR 10 at 28-29:

"The words 'ought to have known' are included in s 157(1)(c)

as an alternative to 'knew'. Reliance upon them is necessary

only in a case where it is not positively established that an

accused actually knew that his act was likely to cause death.

That does not, however, mean that the content of the

knowledge laid at the door of an accused is to be assessed by

reference to the notional knowledge and capacity of some

hypothetical person. The starting point of the inquiry on

the question whether an accused ought to have known that his

or her actions were likely to cause death must be the

knowledge, the intelligence and, where relevant, the

expertise which the particular accused actually possessed.

The relevant question is not whether some hypothetical

reasonable person in the position of the accused would have

appreciated the likely consequences of the applicant's act.

It is what the particular accused, with his or her actual

knowledge and capacity, ought to have known in the

circumstances in which he or she was placed. Inevitably, the

word 'ought' requires the making of a subjective judgment by

a jury. The jury must be persuaded, on the criminal onus in

the context of a murder trial, that the established

circumstances were such that the particular accused, with the

knowledge and the capacity which he or she actually

possessed, ought to have thought about the likely

consequences of his or her action. They must also be

persuaded, again on that onus and in the context of such a

trial, that if the particular accused had stopped to think to

the extent that he ought to have, the result would, as a

matter of fact, have been that he or she would have known or

appreciated that the relevant act or acts were likely to

cause death."

8. Senior counsel for the respondent particularly relied upon the final sentence of that passage as if it alone stated the relevant test. Plainly that is not so as it represents no more than the final step in the relevant reasoning process. Ultimately counsel appeared to accept that the sentence upon which he relied did not state the entire test.

9. Whether or not the appellant "knew", in the terms of s157(1)(c), that his act of discharging a rifle in the direction of the deceased was likely to cause death clearly was a live issue for the jury. However, the respondent submitted that the verdict of the jury, construed by reference to the evidence before them, necessarily carried with it a finding adverse to the appellant in that at the very least the jury must have concluded that the appellant "ought to have known", within the meaning of s157(1)(c), that that act was likely to have that effect.

10. As appears from Boughey v R (supra) and the dictum of Windeyer J in R v Phillips (1971) 45 ALJR 467 at 480, it is what the appellant, with his actual knowledge and capacity, ought to have known in the circumstances in which he found himself which is relevant to whether he ought to have known that his unlawful act was likely to cause death in the circumstances.

11. Neither Phillips v R nor Boughey v R concerned offenders whose capacity to know that a particular act or omission was likely to cause death in the circumstances was affected by any form of mental disease. Phillips v R was a case where the knowledge that waters, near which the deceased had been left in an unconscious state, were tidal. Boughey v R concerned the knowledge of a medical practitioner as to the possible fatal effect of pressure to the carotid arteries. However, the principle appears to be the same. It is necessary to look at the particular accused person and determine what he, and not some other person, knew or ought to have known. There appears to be no reason to exclude mental disease from the factors relevant to a consideration as to whether a particular person ought to have known. Whilst Boughey v R was not concerned with an accused suffering from mental disease, the relevant principle laid down by that case in the passage which I have reproduced is of equal application in such a case. Once the test is seen to be subjective in the sense that it refers to what the particular accused ought to have known then all factors affecting that accused's capacity to know must be relevant. Those factors include any relevant mental disease from which the accused was suffering at the material time.

12. Some of the psychiatric evidence was capable of being used by the jury on this question. The effect of Dr Sale's evidence was that at the relevant time the appellant would have been highly aroused emotionally and psychologically and that by reason thereof his ability to think clearly or logically would have been severely impaired. If by reason of a psychiatric disorder the appellant was incapable of thinking clearly or logically to the extent of not knowing, and not being able to know, that his unlawful act was likely to cause death in the circumstances, then he could not be convicted of murder on the basis of s157(1)(c). Other than actual knowledge, s157(1)(c) is concerned with the case of the accused whose knowledge of the likely effect of his unlawful act "is hidden from him by his unexcused ignorance." (per Cosgrove J in Boughey v R [1985] TASSC 5; (1985) Tas R 1 at 19). Ignorance caused by mental disease is not unexcused ignorance. The evidence of both psychiatrists, including that part of the evidence of Professor Jones which was ruled to be inadmissible, was relevant to the question as to whether or not the ignorance of the accused, if there was ignorance, was legally excusable ignorance. It cannot be said that that question was necessarily determined against the appellant by the jury's verdict and accordingly I am of the view that there is no occasion to apply the proviso.

13. There was some discussion as to what ought to be the appropriate order in that event. The respondent submitted that there ought to be an order for a new trial. The appellant submitted that this Court ought to substitute a verdict of manslaughter. I have previously expressed my view that there ought to be a new trial. The further submissions made to the Court have not altered my view. It is regrettable that the need for a new trial arises but the circumstances of this case lead me to the conclusion that no other course is appropriate. It is, of course, a matter for the Crown as to whether a further trial proceeds or whether it adopts some other course leading to a conviction for manslaughter. That is a matter properly within the Crown's discretion. Nothing that I have said ought to be taken as indicating what course the Crown ought to take. What I have said means no more than I do not consider that this Court ought to substitute a verdict of manslaughter.

14. The High Court already has ordered that the appeal to this Court be allowed so that no further order to that effect is required. I would order that the conviction be quashed and that there be a new trial.