Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442

The material provided on the application

1. The applicant provided a written application, which comprised: 1. The Indictment, the applicant's trial transcript, the summing up and proceedings after conviction; 2. Trial Exhibits; 3. Sentence Exhibits and the Crown and Defence Sentencing Submissions; 4. A copy of the remarks on sentence (Regina v Adanguidi [2005] NSWSC 519); 5. The Court of Criminal Appeal decision and related documents (Adanguidi v Regina [2006] NSWCCA 404); 6. Medical reports produced following the Court of Criminal Appeal decision, which includes: 1. An expert report of Dr Olav Nielssen dated 11 September 2007 ("2007 report"); 2. An expert report of Dr Matthew Large dated 10 September 2009 ("2009 report"); 3. A supplementary expert report of Dr Olav Nielssen dated 29 December 2014 ("2014 report"); 1. A volume of scholarship concerning the interaction between schizophrenia and violence; and 2. Various academic and vocational courses completed by the applicant and other subjective material.
2. The Attorney General provided written submissions dated 17 December 2021. The applicant provided submissions in reply dated 11 March 2022.
3. This decision has been made on the papers. I have considered all of the above materials in making my decision.
4. The appropriateness of the relief sought
5. As can be seen from the history above, while the applicant challenged his sentence in the Court of Criminal Appeal, no action was taken with respect to his conviction. He has not, consequently, exhausted his avenues of appeal with respect to his conviction: R v Gibbings [1936] SASR 204 at 205, cited in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 305 fn 15 and followed in R v Caruso (1988) 49 SASR 465; (1988) 37 A Crim R 1; see also Jasmin v The Queen (2017) 51 WAR 505; [2017] WASCA 122 at [229]; Lawson v The State of Western Australia [No 2] [2018] WASCA 204 at [22].
6. The opening sentence of s 79(3) of the CAR Act provides a discretion to "refuse to consider or otherwise deal with an application". The opening words of the next sentence - "Without limiting the foregoing …" - suggest a broad and unfettered discretion. It is important however, to read the provision as a whole. The next sentence goes on to set out a number of circumstances in which the Supreme Court "may" refuse to consider or otherwise deal with an application, they being, where one of the circumstances in s 79(3)(a) applies and s 79(3)(b) applies. In the present matter, s 79(3)(a)(iii) applies - the applicant has not exhausted his rights of appeal, at least as against his convictions. This raises a question as to whether s79(3)(b) applies, that is, that I am "not satisfied that there are special facts or special circumstances that justify the taking of further action".
7. The matters in s 79(3)(a) and s 79(3)(b) have been described as serving as "a guide to the proper limits of [the] power" to refuse to consider or deal with an application: Clark v Attorney General of New South Wales [2020] NSWCA 70 at [39], per McCallum JA (as her Honour then was); see also the observations of Basten JA at [7]; GAR v Attorney General for the State of New South Wales (No 3) [2020] NSWCA 179, per McCallum JA at [129]. In the present context, the fact that the applicant has not exhausted his avenues of appeal with respect to his conviction suggests the Court should refuse to deal with the application unless "satisfied that there are special facts or special circumstances that justify the taking of further action": s 79(3)(b). Such a reading would be consistent with the nature of the jurisdiction sought to be engaged. That is, Part 7 of the CAR Act, as noted above, operates as a failsafe to be engaged in appropriate cases in order to remedy a miscarriage of justice where the criminal justice system has run its course.
8. Neither of the parties referred to the potential significance of s 79(3) to this application. As noted above, what is sought is "that an inquiry be conducted by a judicial officer into [the applicant's] convictions and/or sentence". Insofar as the application concerns the sentences imposed, s 79(3) does not (at least specifically) raise an issue. However, it is plain that the applicant seeks to agitate his convictions, squarely raising an issue as to whether the Court should consider this application.
9. Nor did the parties address the basis on which an inquiry, rather than a referral to the Court of Criminal Appeal, was sought. An inquiry ordered under s 79(1)(a) is not an end in itself. The judicial officer conducting the inquiry has no power with respect to the convictions or the sentence. In the event that an inquiry were to be ordered, it would be conducted according to Division 4 of Part 7 of the CAR Act. The action taken at the completion of the inquiry is governed by s 82, which relevantly provides: 82 Action to be taken on completion of inquiry (1) On completing an inquiry under this Division, the judicial officer must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to - (a) … (b) the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court. (2) The judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal - (a) for consideration of the question of whether the conviction should be quashed (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or (b) for review of the sentence imposed on the convicted person (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence). (3) After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter (together with a copy of the judicial officer's report) to be sent to the Governor. (4) The Governor may then dispose of the matter in such manner as to the Governor appears just.
10. This provision requires that the judicial officer conducting the inquiry send a report to the Chief Justice: s 82(1)(b). The Supreme Court, after considering this report, must then furnish its own report, along with the judicial officer's report, to the Governor, who may then dispose of the matter in such manner as the Governor considers "just": ss 82(3), 82(4). One manner of disposal is the Governor's exercise of the "pardoning power". There is nothing put in the application to suggest that the present matter is one that is appropriate for exercise of the Governor's pardoning power, or that there is a prospect that this will be so after an inquiry. Rather, the issues raised go to the applicant's liability and culpability for the offences, matters quintessentially within the role of the courts.
11. While the conduct of an inquiry will result in a report which, in this case, would be sent to the Chief Justice, it would also be open for the officer who conducted the inquiry to refer the matter to the Court of Criminal Appeal in the case of a doubt as to the applicant's guilt or as to a matter affecting the nature or severity of the sentence: s 82(2). While the tests are not identical, the applicant could have sought this course directly. The evidence on which the applicant relies is clearly set out in the various reports. The Court of Criminal Appeal regularly deals with appeals based on the existence of fresh or new evidence. There does not appear to be any particular complexity to the issues in this matter such as to suggest an inquiry is the more suitable course. Those issues are discussed below.

The circumstances of the killings

1. As noted above, the applicant at trial did not dispute that he had killed each of the deceased, but denied responsibility for murder based on a defence of mental illness, and in the alternative substantial impairment by an abnormality of mind. The circumstances of those killings was summarised by Barr J at [4]-[22] as follows: "4 In January 2003 Mr Shen travelled to China on business. He returned on 29 January. On the next day the offender telephoned him and said that he was eager to see him. He invited him to come to his unit at Maroubra at any time after 7:00pm in the evening. 5 I am satisfied that the offender issued his invitation with the intention of attacking, disabling and robbing Mr Shen and his family. In anticipation of a visit by Mr Shen, he provided himself with a loaded pistol, strong adhesive tape, strong cord, various tools, a torch, cloths and a device to enable him to see in the dark. He had a pair of rubber gloves and a bag in which to carry these things and the money he expected to steal. 6 As invited, Mr Shen arranged to visit the offender on the evening of 31 January. He telephoned him on the way and they arranged to meet near the University of New South Wales because Mr Shen had never been to the offender's home and did not know the area well. They met as arranged and drove to the offender's unit block. The offender parked both their cars under the building and they went to the unit. 7 Once inside, they spent some time talking and looking at photographs of the offender's family. They moved into the bedroom and undressed and there was some intimate touching. As Mr Shen was putting on his clothes the offender took out the pistol and struck him hard on the back of the head. Mr Shen fell to the floor. The offender told him to remain silent and to lie on the floor. He placed one cloth in Mr Shen's mouth and another around his mouth and head. He took the adhesive tape and bound his head, hands and feet. He continued to threaten him with the pistol, telling him to remain quiet. 8 The offender moved Mr Shen into a second bedroom and began to demand money from him. He said that a "Slovenian gang" was after him, that he needed money to pay a "Mascot cop" and that he needed to leave Australia because he had killed a pharmacist at Hurstville. None of these things was true. He accused Mr Shen of sending photographs of them to his, the offender's, wife. 9 He held Mr Shen there for hours, demanding that he make over money and other valuable things. Mr Shen told him where he could find such money as was available, including some that he carried with him and some that he kept in his car. The offender went to the car and took the money. Mr Shen was obliged to explain to the offender that he was unable there and then to sign over to him assets, property or the proceeds of bank accounts that the offender was asking for. The offender began to make threats against Mr Shen's family and Mr Shen pleaded with him not to harm his wife or children. The offender produced a knife and cut off some of Mr Shen's hair. He said that he was going to show it to his wife. 10 The offender left the room from time to time and made and received calls on his mobile telephone. He had a contract with the operator of the Ritz Cinema, Randwick to clean the premises and employees of his were there while he was holding Mr Shen captive. Some of his telephone conversations were with those employees. 11 After one such conversation the offender returned to the room where Mr Shen was and told him that the Slovenian gang were chasing him and that he had only ten minutes left. He counted down the ten minutes and as he did so he held the pistol to Mr Shen's head. He left the unit, having stolen Mr Shen's car and unit keys. As he did so he set the alarm. 12 Having left Mr Shen bound and gagged, he went to the Ritz Cinema, driving Mr Shen's car, and spoke to his employees. After that he went to Rockdale. He knew the security arrangements at the building in which the Shen unit was situated and used Mr Shen's keys to get in. It was then 2:54am. He travelled to the floor on which the unit was situated but before entering it he turned off the electric power to the unit and to adjoining units. He entered the unit taking with him the bag containing his various belongings. He put on rubber gloves and carried a torch. 13 The offender was in the Shen unit for about an hour and during that time he carried out a number of different acts. The evidence does not permit any confident conclusion about the order in which they took place. He stole money and valuable property, including jewellery, computer equipment and mobile telephones. Because he was wearing the gloves he left no fingerprints. It seems unlikely that all this property would have been on open display, particularly the substantial amounts of cash that he took, and probable that he found it after searching or after having been told by Mrs Shen where it was. 14 As the offender was going about his work a number of things happened. Pin Shen, who kept a tennis racket in his room, took it and approached the offender. Whether the offender was then stealing or attacking Mrs or Ms Shen or was merely an unwelcome entrant it is not possible to say. The offender, facing him, shot him through the head at close range. Pin Shen died straight away. 15 Ms Shen also was alarmed. The clothes she was wearing when she was found make it appear likely that she was in bed at the time. If she was, she got out of bed and, still in her bedroom, took her mobile phone and called triple 0. She managed to make the connection, but it was almost immediately broken. I think that the offender must have done that. He shot her through the back of the head from close range. She died, slumped over her bed. 16 The offender killed Pin Shen to prevent him from getting in the way of what he was doing. He shot Ms Shen for the same reason and in particular to prevent her from calling for help. His intent in shooting them was to kill. 17 The offender attacked Mrs Shen with the pistol, but he did not shoot her. He tortured her by pressing the tip of the barrel into her breasts and perhaps rotating it. He did so to hurt her, perhaps with the intent of making her tell him where valuable things might be found. Mrs Shen was unlikely to have told him voluntarily. He used some instrument, presumably the pistol, to cause a superficial injury to her sexual parts. There was damage to the fingers, with breaking of the finger bones, tearing of the soft tissues and dislocation of the joints. He killed her by striking her repeatedly in the face and head with a hard object. I think that that was probably the pistol. There was extensive fracturing of the bones of the face, some of them extending into the base of the skull. There was bleeding within the skull. There was brain damage. The lacerations so produced bled extensively and some blood was inhaled and some swallowed. There was bruising about the neck and fractures of the ribs. Those fractures may have been caused post mortem. 18 Shiquin Zhu died of these injuries and from inhaling blood. Her death was painful. She probably knew before she died that her children had been murdered. 19 The offender left the unit shortly after 4am, taking with him the money and other valuable things he had stolen, together with the pistol, the gloves, the infrared device and other things in a sports bag. He also had a backpack and a computer in a bag. He drove to the unit of a woman with whom he had a casual sexual relationship, got her out of bed and told her a false story about his wife's having just left him. He left with her the bag containing the things I have mentioned, the backpack and the bag containing the computer. He made sure that she stowed them out of sight. He returned to his car and drove towards his own unit intending, no doubt, to deal in some way with Mr Shen. 20 In the meantime, after a long, difficult and painful struggle, Mr Shen had managed to free himself from his bonds. He got himself out of the offender's unit. He could not use his car, of course. He knocked on doors and called for help but at that hour of the morning there was no help. Eventually he managed to find a public telephone and made a call to the emergency services. Police officers came and helped him. He told them what had happened and gave them his family's telephone numbers. Ambulance officers took him to hospital, where he was treated. 21 Police officers telephoned the Shen unit. Only one of the several calls that they made was answered and on that occasion nobody spoke but the police could hear noises. They went to the unit and found the bodies of the deceased. 22 When the offender arrived at his unit block, waiting police officers arrested and disarmed him. He was taken into custody."

The defences at trial

1. As noted above the applicant relied on the defence of mental illness and the partial defence of substantial impairment. In broad terms, the defence of not guilty by mental illness required the applicant to establish, on the balance of probabilities that, when he did the acts causing death, the applicant was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong: R v Porter (1933) 55 CLR 182 at 188; [1933] HCA 1; and see also s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed).
2. The partial defence of substantial impairment (to reduce murder to manslaughter) required the applicant to establish, on the balance of probabilities, that at the time of the act causing death his capacity to understand events, or to judge whether his actions were right or wrong, or to control himself were substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability for murder being reduced to manslaughter: Crimes Act, s 23A.
3. Two highly regarded and experienced forensic psychiatrists gave evidence. The applicant's case at trial relied on the opinion of Dr Westmore. That opinion was summarised in the following terms by Barr J at [50]-[51] of Regina v Crespin Adanguidi: "50 … Dr Westmore thought that the offender was suffering from a psychotic illness when he killed the deceased and that the illness played a direct and relevant role in the offences. He was of the opinion that he was suffering from a disease of the mind which would have totally deprived him of his capacity to know that he ought not to do the act of killing each of the deceased. Dr Westmore agreed that there was little objective evidence for mental illness. As to whether the offender knew that he was doing wrong, Dr Westmore distinguished between legal and moral wrong. He thought that the offender's ability to know that what he was doing was wrong in the moral sense was compromised. 51 When asked how he thought that the offender's ability to reason had been affected, Dr Westmore said that it was his ability to consider all his proposed actions in a logical and reasonable fashion that was affected. He based his opinion firmly upon an assumption that the offender was mentally ill before the offences and in coming to that assumption he relied on changes described by the offender's wife before the offences, the fact that the killings were out of character and the victims virtually strangers to him and the evidence of an assault on the offender's son."
4. In addition to this, Dr Westmore noted that "sometimes schizophrenic illnesses are preceded by what's called a prodromal phase where there is a change in the person's behaviour and sometimes their mood, and sometimes their thought processes … Not obviously psychotic, but obviously changed". Dr Westmore was also of the view that while the applicant "did participate in what appears to be very purposeful goal directed behaviour… [i]t doesn't exclude the possibility that he was mentally ill at the time."
5. Thus, while Dr Westmore's opinion was that the applicant knew the nature and quality of his acts, he did not know that they were wrong, as understood in the context of a mental illness defence. Clearly, the jury did not accept Dr Westmore's opinion.
6. Dr Nielssen was briefed by the Crown and gave evidence in a case in reply. Reports provided by Dr Nielssen subsequent to the applicant's trial are central to this application. At trial, Dr Nielssen described the appropriate psychiatric diagnosis as "probable schizophrenic illness" although it was not clear that he ascribed this diagnosis to the applicant at the time of the offences, as opposed to after the commission of the offences. Critically, he gave this evidence with respect to the impact of any illness on the relevant acts: "Q. Were you able to find any relationship between his reported symptoms to you and to the other doctors, and his behaviour on the occasion when he killed these three people? A. In the symptoms he reported, no, I didn't find any relationship, neither as a result of the perceptual disturbances that were recorded, that is the voices and the content of the voices, or any delusional beliefs."
7. Dr Nielssen also gave evidence that "[t]here was very little information to support that he was affected by symptoms of mental illness prior to the offence", and that "it seems, if he has become mentally ill, it's after the offences occurred". The final question and answer in the evidence in chief were as follows: "Q. In June [when Dr Nielssen provided his report] you thought he may have had the illness of schizophrenia. Do you still adhere to that opinion? A. I still think it's a strong possibility. I put probable. It is quite difficult for me to make a firm diagnosis but the early accounts, particularly of Dr Ellis, whose opinion I respect, of some signs of disorganisation of thinking typical of psychosis and more typical symptoms elicited at that time made me say it's a strong possibility that he does have that mental illness."
8. As can be seen, there is some confusion in the above answer as to the points in time being referred to. Importantly, in his evidence in chief, while Dr Nielssen gave evidence that the applicant certainly knew his actions were "wrong in a legal sense", he gave no evidence as to whether he knew his actions were morally wrong or as to his capacity to reason in this regard.
9. In cross-examination, Dr Nielssen accepted that in the report previously provided to the Crown he concluded that the applicant may have been eligible for the partial defence of substantial impairment. He accepted that implicit in this was a view that the applicant had an abnormality of mind at the time of the homicides. He said that at the time of writing the report he was of the view the applicant "probably had a psychotic illness at least from two days after" the killings, and this led to a view (at the time of preparing the report) that "on the balance of probabilities he had an acute psychotic illness that was also present at the time of the offences", which was relevant to the partial defence of substantial impairment. However, with respect to the critical question of his then current view of the impact of any psychiatric illness on the applicant's understanding of the wrongfulness of his acts, Dr Nielssen gave the following evidence: "Q … [t]he presence of the underlying psychotic illness is likely to have affected his perception of events as he probably experienced hallucinations and voices disturbing his concentration and affecting his reasoning ability? A. Again I am not as certain about that as I was at the time I prepared the report because in the interim I have read the assessment of the mediRegistrar [as transcribed] who didn't illicit those symptoms and I am not sure that those symptoms were present on the 1 February."
10. The Registrar referred to above was Dr Atherton, a trainee psychiatric registrar who saw the applicant on 2 February 2003, and therefore prior to Dr McDonald and Dr Willhelm who saw the applicant on 3 and 4 February 2003, and Dr Ellis who saw the applicant on 9 February 2003. Dr Nielssen appears to have based the opinion in his report on an inference drawn from the assessments made on these later dates in February 2003 to infer the presence of mental illness on 1 February 2003. That inference was undermined by the notes of Dr Atherton who on examination on 2 February 2003, found no sign of psychosis. Barr J thus summarised this aspect of Dr Nielssen's evidence as follows (at [57]): "An important feature of the evidence of Dr Neilssen(sic) was that before he had access to the medical records of the psychiatric registrar [Dr Atherton], who recorded no psychotic symptoms, he thought that it was probable that the offender had a psychotic illness on 1 February 2003. After he saw the records he changed his opinion and considered only that it was possible."
11. Insofar as there was a potential impact on the applicant's ability to judge right from wrong, Dr Nielssen's evidence was extremely muted. The following evidence was given: "Q. Now sir isn't it true that his abnormality of mind on the 1 February would have affected his ability to judge right from wrong? A. Yes, it may have had some [e]ffect on that, yes. Q. And wouldn't he have had troubled reasoning about the matter with a moderate degree of sense of composure? A. Again it would depend on how severe[ly] the abnormality affected his reasoning ability. It didn't affect his capacity to form purposeful action, hence I don't think the [e]ffect on his reasoning in other respects was very great."
12. It might be noted that the above questions were premised on the presence of an abnormality of mind at the relevant date, a matter Dr Nielssen had only accepted as a possibility, albeit a strong one. The final question and answers in Dr Nielssen's evidence, given in re-examination, were as follows: "Q. … can you say anymore than this: that it's a possibility that such an abnormality of mind may have affected his ability to reason with a moderate degree of composure? A. Yes, I think that puts it accurately. Q. I understand you say it's not probable that he was incapacitated so that he couldn't reason moderately? A. As far as I could tell from the information that was available to me yes, I didn't find he was incapacitated."

The finding of the sentencing judge as to the impact of the applicant's mental health on his culpability

1. Based at least in part on the above evidence, Barr J was satisfied that, while the applicant was suffering from a developing illness, his mental health was not affected in any relevant way at the time of the murders, so as to reduce his culpability. His Honour said at [72]: "At the time of the murders, however, although the offender was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the offender's state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and the moral wrongness of what he was doing. I do not think that the offender's capacity to understand events or judge whether his actions were right or wrong in a moral sense or to control himself were impaired at all. I do not think that his capacity to reason about what he was doing was impaired. His illness, his belief that he was being watched and the other effects that it was having upon him, were incidental. No doubt they affected his life and relationships, but they did not mitigate his criminality any more than any physical illness would have done." (emphasis added)
2. The above conclusion was, understandably, central to the decision to impose sentences of life imprisonment.

The Court of Criminal Appeal

1. As noted above, those sentences, but not the convictions, were the subject of challenge in the Court of Criminal Appeal. Central to the challenge was the contention that it was not open to Barr J to find that the applicant's culpability was not affected by his illness. That contention was rejected. Given Dr Nielssen's evidence, that rejection is unsurprising. The applicant also sought to place additional materials before the Court of Criminal Appeal. This comprised: 1. A report of Dr Nielssen dated 29 October 2006; 2. A report of Dr Agoncan dated 2 June 2006; and 3. The applicant's prison file for the period 3 June 2005 to 12 September 2006.
2. In this 2006 report of Dr Nielssen, he concluded that the applicant had a chronic schizophrenic illness, largely in remission. He also noted (as noted at [63] of Adanguidi v Regina) that additional evidence, including the evidence of the applicant's wife regarding a change in the applicant's behaviour in the period prior to the offences, was consistent with the applicant having a pre-existing mental illness and being in the early phase of a further episode of illness in the month before the offence.
3. Hislop J (with whom the other members of the Court agreed) rejected the application to place the additional material before the Court as fresh or new evidence. His Honour stated at [64]: "I would reject the application to place the additional materials before the Court for any purpose other than as evidence to be taken into account should the Court come to re-sentence. I do so for the following reasons: (a) Dr Neilssen's(sic) report does not add significantly to the evidence which was before the sentencing Judge. His additional comments do not impact upon the question of the applicant's capacity at the time of the murders. He had read the statements of Ms Richards prior to giving evidence previously, had been given a summary of her evidence at the trial and was asked to assume her evidence by applicant's counsel at the trial; (b) The material contained in the report of Dr Agoncan does not impact upon his Honour's or Dr Neilssen's(sic) conclusion as to the applicant's condition at the time of the murders; (c) The gaol medical file relates to matters which postdate the sentence and is not admissible on the principle in R v Munday (d) Senior counsel for the applicant accepted that if the Court rejected Dr Neilssen's(sic) evidence then the remaining evidence sought to be tendered should also be rejected."
4. The Court did not come to resentence and the material was, consequently, not admitted.

Reports relied on in support of the application

1. In his 2007 report, Dr Nielssen said the following with respect to the presence of an abnormality of mind at the relevant time: "In response to the questions in your letter dated 22.6.07, I believe that on the balance of probabilities [the applicant] did suffer from an abnormality of the mind arising from an underlying condition on 1.2.03. I believe his underlying condition was an emerging psychotic illness that has since evolved into chronic schizophrenia. The abnormality of mind at the time of the offence was impaired reasoning and emotional regulation that is known to be associated with the early phase of psychotic illness. [The applicant] may also have been affected by false beliefs arising from symptoms of schizophrenia that he reported began about five months before the offence. I believe [the applicant's] psychiatric disorder is likely to have significantly impaired his capacity to understand events, judge right from wrong and to control himself at the time of the offence. Emerging psychotic illness is known to be associated with unrealistic thinking, increased anger and hostility, grossly impaired social judgement and high rates of physical violence, particularly homicide offences."
2. Dr Nielssen pointed out that what is known as to the relationship between emerging psychotic illness and violent offending has changed since the applicant's trial. Dr Large in his 2009 report refers to three papers published in 2007 and 2008 which indicate a greatly increased rate of homicide in first episode psychosis. Dr Nielssen was a co-author on each of those papers, alongside Dr Large with respect to two of them. While it is not entirely clear when the applicant's first episode of psychosis commenced, the experts are clear that, generally, the presence of schizophrenic illness emerges over time. Further, Dr Large observed, "[i]t can be difficult to distinguish the prodrome of schizophrenia and first episode schizophrenia". Hence, Dr Nielssen said in his 2007 report: "My opinion has also strengthened as a result of the development of scientific knowledge and becoming aware of existing research about the relationship between the first episode of psychosis and serious violence. … These studies confirm that the greatest risk of serious violence is during the prodrome and first episode of schizophrenia."
3. And similarly in his 2014 report: "Another scientific development in the years since [the applicant's] case was considered by the Court of Criminal Appeal, which is relevant to his case, is the increasing recognition of the association between the first episode of psychosis and serious violence. Studies that link criminal histories to contact with mental health services show a peak in the rate of conviction for violent offences immediately before the diagnosis of schizophrenia."
4. Dr Nielssen was also able to consider the applicant's history of treatment since his incarceration, which he reported has involved long-term treatment with high doses of antipsychotic medication. In his 2007 report Dr Nielssen said: "The relevance of the subsequent course of [the applicant's] illness is that it provides support for the accounts of signs and symptoms of acute psychosis from very soon after his arrest, and also provides some support for [the applicant's] account of the emergence of symptoms of psychotic illness several months before his arrest."
5. It appears that a combination of the changed understanding of the connection between prodromal or first episode schizophrenia with violent offending, and confirmation of the nature of the applicant's illness through its subsequent progress, has led Dr Nielssen to form his current opinion as to the potential link between the applicant's mental illness and his actions on 1 February 2003.
6. The primary basis on which the application is resisted by the Attorney General is that, in the Attorney General's submission, there was, at trial, little conflict between the opinions of the forensic psychiatrists, and that Dr Nielssen has, despite providing the subsequent reports, not gone so far as to say that his opinion has changed. On this basis it is contended that there is not a sufficient basis for the applicant's matter to be revisited. The submissions are largely based on what Dr Nielssen has said in his post-trial reports. In his 2007 report, he said: "I confirm that at the time I gave evidence in his trial on 12.4.05 that it was my opinion that [the applicant] suffered from an abnormality of mind as at 1.2.03 and that the condition substantially impaired his capacity to understand events, to judge right from wrong and to control himself. My opinion is essentially the same as at the time of [the applicant's] trial in 2005. However, I am now able to put the opinion with greater confidence as a result of becoming aware of other evidence, the progress of [the applicant's] illness and the scientific advances in the understanding of the relationship between the early phase of mental illness and irrational violence."
7. Additionally, in his 2014 report, Dr Nielssen said: "The effect of a severe and disabling form of mental illness was raised at [the applicant's] trial. From the information that was available, [the applicant's] offence was not thought to be directly related to symptoms of mental illness in a way that might have left open the defence of mental illness. Instead the psychiatric experts agreed that he had the defence of substantial impairment by abnormality of mind available to him, because of the effect of emerging mental illness on his perception of events and his capacity to control his actions. However, the court decided otherwise, and he was found guilty of the murders."
8. However, despite the view of Dr Nielssen that the experts agreed the applicant had a defence of substantial impairment by abnormality of mind available to him, this was in fact a substantial issue at trial, with Dr Westmore supporting the availability of a defence of mental illness. Further, whatever was intended to be conveyed by Dr Nielssen in his evidence, any support for the defence of substantial impairment in his evidence was faint to the point of vanishing. As noted above at [36], Dr Nielssen's evidence provided a sound basis for the sentencing judge's conclusion that the applicant was not badly affected by the presence of mental illness at the relevant time. Despite what Dr Nielssen said as to the difference between his evidence at trial and the opinion in his 2007 and 2014 reports, the opinion in those reports is, to my mind, quite different to what the jury was likely to have understood as to his opinion when he gave evidence in 2003.
9. Dr Nielssen in his 2014 report ultimately expressed the view that advances in the understanding of the effects of prodromal and first episode schizophrenia, and I interpolate, the insight gained as a result of the progress of the applicant's illness and treatment, "warrants a review of the outcome of his case". That must apply with even greater force given the view I have taken as to the extent to which Dr Nielssen's more recent opinion diverges from that given at trial.

Decision

1. Dr Nielssen's evidence was relied on by the Crown at trial and it appears was preferred by the jury over the evidence of Dr Westmore. Further, given the evidence of Dr Nielssen, it was open to the sentencing judge to find the applicant was not badly affected by his mental illness in any relevant way at the time of the offences. The evidence relied on in support of the application, and in particular, reports subsequently obtained from Dr Nielssen, raise a question or doubt as to the evidence he gave at the trial. Dr Nielssen's more recent opinion that the applicant was, on the balance of probabilities suffering the effects of a psychiatric disorder and that that illness was "likely to have significantly impaired his capacity to understand events, judge right from wrong and to control himself at the time of the offence" calls into question the applicant's guilt.
2. However, as noted above, the applicant has not exhausted his rights before the Court of Criminal Appeal with respect to his conviction. It would ordinarily be appropriate that he do so before being granted a remedy under Part 7 of the CAR Act. On the other hand, he has exhausted his rights in relation to his sentence. Thus, if the matter is not referred, it is possible that he might be unsuccessful in relation to his conviction appeal (or his application for leave with respect to that appeal), but without recourse in relation to his sentence. Having regard to the potential relevance of the further evidence to both his convictions and sentences it is undesirable that the Court of Criminal Appeal's jurisdiction be so limited. While I have the power to refer the matter to the Court of Criminal Appeal of my own motion, I cannot refer only the sentence appeal. The power to refer is a power to "refer the whole case".
3. In the circumstances, and while not condoning the approach of the applicant in making this application before exhausting judicial remedies, it is my view that I should refuse the application for inquiry, but, of my own motion, refer the applicant's matter to the Court of Criminal Appeal. This is, in my view, the preferable course, given what I have said, above, as to the Court of Criminal Appeal's capacity to deal with the matter, and the questionable benefit of holding an inquiry.
4. I am mindful that, in making the order I propose I am likely impacting on what would have been a requirement that the applicant seek an extension of time to appeal his conviction. (The referral pursuant to s 79(1)(b) of the CAR Act involves a referral to "be dealt with as an appeal", not as an application for leave to appeal.) This is a further unsatisfactory aspect of the application. While the 2007 and 2014 reports of Dr Nielssen were not in existence at the time the applicant sought to appeal his sentence, they have now been in existence for many years. No explanation has been given for the delay in raising these matters. Nonetheless, it remains the case that the matters raised give rise to a question as to the applicant's guilt with respect to his three convictions for murder. In these circumstances I am inclined to make the referral despite its potential impact on the need for an extension of time in the context of a very long and unexplained delay.
5. Finally, I should indicate that, in my view, the above considerations amount to special circumstances that justify the taking of further action with respect to the whole matter, despite the fact that the avenues of appeal against his convictions have not been exhausted: CAR Act, s 79(3)(b). I have formed this view primarily on the basis that, if the applicant is to agitate his matter in the Court of Criminal Appeal by filing an appeal in the ordinary fashion, he would be limited to appealing against his convictions, which is undesirable, for the reasons discussed above.

Orders

1. I make the following orders: 1. The application for an inquiry into the applicant's convictions and/or sentences is refused. 2. I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole of the applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal. 3. The applicant's case be listed before the Registrar of the Court of Criminal Appeal for further directions as soon as reasonably practicable.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2022