Fuller v R

Court of Criminal Appeal (NSW)|2021-02-19|Before: Johnson J, Price J, Davies J, Rothman J

Judgment

JOHNSON J: The Applicant, Owen Junior Fuller, seeks an extension of time to apply for leave to appeal against his conviction for murder.
The Applicant was charged that on 29 August 2013, at Young in the State of New South Wales, he did murder Corey Mark Power.

The Ground of Appeal

The Applicant filed a Notice of Appeal, together with a Notice of Application for Extension of Time, on 13 July 2020. At the hearing before this Court on 19 February 2021, the Applicant relied upon the following amended ground of appeal: "A miscarriage of justice was occasioned by reason of the plea of guilty in circumstances where there is fresh evidence that the applicant was suffering a mental illness at the time of the offence."
Mr Odgers SC, for the Applicant, made clear that, if this Court allowed the Applicant's appeal and quashed the conviction, a retrial was sought on the count of murder, where the only issue would be whether the partial defence of substantial impairment under s.23A Crimes Act 1900 (NSW) operated to reduce the Applicant's offence from murder to one of manslaughter.
The Applicant was represented by a very experienced senior counsel and solicitor at first instance. As part of their detailed preparation of the case, an opinion was sought from Dr Olav Nielssen, psychiatrist, whose report dated 6 October 2015 did not support a defence of mental illness or a partial defence of substantial impairment. Dr Nielssen expressed a diagnosis of "substance induced psychotic illness" and observed that the Applicant did not report killing the victim "in response to a delusional belief or symptoms of a chronic mental illness".
In a report dated 26 September 2019, Dr Nielssen expressed a different conclusion, based upon a further account given to him by the Applicant and some additional information, stating that the Applicant would be able to raise the partial defence of substantial impairment.
The Applicant's ground of appeal contends that there was a miscarriage of justice under the third limb of s.6(1) Criminal Appeal Act 1912 (NSW): R v Chiron (1980) 1 NSWLR 218 at 221; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9], [14].
In effect, the ground asserts that there is fresh evidence available, such that a miscarriage of justice would result if the Applicant is held to the guilty plea which he entered in the Supreme Court. The ground of appeal claims there is fresh evidence, with this aspect itself raising a question whether there has been a miscarriage of justice under the third limb of s.6(1) Criminal Appeal Act 1912 (NSW): Gallagher v The Queen (1986) 160 CLR 392 at 395, 407; [1986] HCA 26; Bikic v R [2002] NSWCCA 227 at [212].
It may be seen then that there are overlapping issues raised by the ground of appeal, each of which is based upon a claim of miscarriage of justice.
The Applicant has the burden of proving that there has been a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63].
The determination of this application will involve: 1. consideration whether the additional evidence adduced by the Applicant in this Court is fresh evidence or new evidence, including examination of the Applicant's own evidence, which is subject to a credibility challenge; 2. whichever way the additional evidence is characterised, consideration whether a miscarriage of justice is demonstrated by the Applicant; 3. consideration whether the Applicant should be allowed to go behind his plea of guilty to murder; 4. a decision whether a miscarriage of justice would result if the Applicant's conviction, based upon his plea of guilty, is allowed to stand.

Application for Extension of Time

The Applicant seeks an extension of time to apply for leave to appeal against conviction. In support of the application for an extension of time, the Applicant relies upon the affidavit of Nick Felton, solicitor, affirmed 30 June 2020.
Section 5(1) Criminal Appeal Act 1912 (NSW) permits a convicted person to appeal against conviction. The ground of appeal claims that a miscarriage of justice has occurred under the third limb of s.6(1) Criminal Appeal Act 1912 (NSW) (see [9]-[10] above). The Applicant requires leave to appeal, as his ground of appeal involves a question of fact or mixed fact and law: s.5(1)(b) Criminal Appeal Act 1912 (NSW). Section 10(1)(b) Criminal Appeal Act 1912 (NSW) permits the Court to extend time for the bringing of an appeal which is otherwise out of time.
In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32], French CJ, Hayne, Bell and Keane JJ referred to provisions allowing extension of time to appeal against conviction and sentence: "These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding."
Earlier in Kentwell v The Queen, their Honours said at [29] (footnotes omitted): "The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides. For example, witnesses may no longer be available and exhibits may have been lost or destroyed. Re-opening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence again."
Relevant to the determination of the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at [33].
The interests of justice test, to be applied on the present application for extension of time, focuses attention upon the merit of the application itself against the background of the entry of a plea of guilty by the Applicant in 2016. It is appropriate to consider the merits of the application for the purpose of addressing the application for extension of time.

Hearing in the Court of Criminal Appeal

At the hearing on 19 February 2021, the Applicant relied upon a number of affidavits. The Crown objected to this evidence, arguing that it was new evidence and not fresh evidence. The Court received the evidence upon the basis that it was necessary to do so in order to determine the Applicant's claim of miscarriage of justice in this case, with the Court to address the status of the evidence and its effect in the judgment.
Affidavits relied upon by the Crown were received upon the basis that they were responsive to the Applicant's evidence and bore upon the status of the Applicant's material (as new or fresh evidence) and also the issues raised on the application.
Mr Odgers SC relied upon the following affidavits: 1. affidavit of the Applicant affirmed 16 June 2020 - the Applicant was cross-examined by the Crown at the hearing in this Court; 2. affidavit of Nick Felton affirmed 30 June 2020 - Mr Felton is the Applicant's solicitor on the appeal and was not required for cross-examination; 3. a further affidavit of Nick Felton affirmed 26 August 2020.
The Crown relied upon a number of affidavits at the hearing in this Court: 1. affidavit of Eric Wilson SC affirmed 4 December 2020 - Mr Wilson SC had appeared for the Applicant at the sentencing hearing in 2016 - his affidavit was not challenged and he was not required for cross-examination; 2. affidavit of Shaun Philip Mortimer sworn 18 December 2020 - Mr Mortimer was the solicitor instructing Mr Wilson SC for the Applicant in 2016 - Mr Mortimer's affidavit was not challenged by the Applicant and he was not required for cross-examination; 3. affidavit of Marley Zelinka affirmed 8 February 2021 - Ms Zelinka is the solicitor for the Crown on the appeal and she was not required for cross-examination.
The affidavit of Mr Felton affirmed 26 August 2020 annexed reports of Dr Nielssen, dated 6 October 2015 and 26 September 2019, together with a number of other documents.
As noted earlier, Dr Nielssen's report of 6 October 2015 was obtained by the Applicant's previous legal representatives (Mr Wilson SC and Mr Mortimer) and was taken into account in the process which saw the Applicant plead guilty to murder.
Dr Nielssen's report of 26 September 2019 provided the foundation for the application brought in this Court.
The affidavit of Ms Zelinka affirmed 8 February 2021 annexed a report of Dr Kerri Eagle, psychiatrist, dated 13 November 2020. The Crown had sought an opinion from Dr Eagle concerning the issues raised on this application. In addition, exhibited to Ms Zelinka's affidavit were a range of documents which had been provided to Dr Eagle for the purpose of preparation of a report.
The Court was informed prior to the hearing that the Crown wished to cross-examine Dr Nielssen and senior counsel for the Applicant wished to cross-examine Dr Eagle.
In advance of the hearing, the Court considered the appropriate procedure to be utilised at the hearing of the application concerning the evidence of the psychiatrists. On 18 February 2021, through the Registrar, the Court raised with the parties the use of the concurrent evidence procedure when the psychiatrists gave evidence. The Court was informed later that day that the parties agreed to the concurrent evidence procedure being utilised at the hearing.
Section 12(1)(b) and (c) Criminal Appeal Act 1912 (NSW) provide for the Court to exercise certain procedural powers in the exercise of its appellate functions. These include the Court exercising "any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters". In addition, the Court noted s.275C Criminal Procedure Act 1986 (NSW), which provides expressly for a court to give directions for expert evidence to be given concurrently with the consent of the Crown and the accused person. Section 275C applies to criminal trial courts: s.274 Criminal Procedure Act 1986 (NSW).
The Court was of the view that the taking of evidence from Dr Nielssen and Dr Eagle concurrently would best assist the Court in the resolution of the issues to be considered on this application. As noted, the parties consented to this course.
The Applicant gave evidence first and was cross-examined by the Crown (T6-17, 19 February 2021). Dr Nielssen and Dr Eagle were present during the Applicant's evidence, which was given by audio-visual link from the Macquarie Correctional Centre where he was then housed.
Following the Applicant's evidence, the concurrent evidence of Dr Nielssen and Dr Eagle proceeded (T20-42, 19 February 2021). In advance of the evidence, the Crown provided a document (MFI1) entitled "Topics/Issues in Dispute for Concurrent Evidence" which was of practical assistance in the efficient structuring of the concurrent evidence session.
In accordance with usual practice, counsel had furnished written submissions in advance of the hearing and further submissions were made orally after the evidence had been completed.

Agreed Facts on Sentence in 2016

Before proceeding further, it is appropriate to set out the factual findings made by Rothman J for the purpose of sentence.
In R v Fuller, Rothman J summarised the facts of the offence of murder which had been placed before the Court, by way of agreed facts, after the Applicant's plea of guilty. His Honour said at [3]-[17]: "3 There are agreed facts. Many deal with the deceased in a detail that, while relevant to background in order that the Court understand the issues, are unnecessary to repeat. 4 The deceased was 33 years of age at the time of his death, the offender was just over 18 years of age. 5 Briefly stated, on 7 August 2013, the offender and another broke into premises and stole a vehicle and some tools. The two co-offenders drove to an address and rang the deceased to leave the tools with him. The deceased told the offender and his accomplice in the robbery to burn the motor vehicle. 6 The deceased drove to Canberra from Young and sold the tools, then returning to Young. He was at the time, it seems, living in Canberra. There is a suggestion that the offender and his robbery accomplice were never paid for the tools and the deceased owed them $600. 7 From 25 August 2013, the deceased was staying in Young at the house of persons who were mutual acquaintances of the deceased and the offender. The deceased was consuming drugs. 8 In the meantime, the offender and his robbery accomplice were exchanging text messages expressing anger and resentment toward the deceased and his failure to pay the money said to be owed. The messages became increasingly hostile towards the deceased and disclosed increasing anger. Reference was made to assaulting the deceased. They then discussed with each other the fact that the deceased had returned to live in Young. 9 At 3.57am on 29 August 2013, the deceased sent two messages to the Facebook account of another female friendly with each of the deceased and the offender. The offender, who had previously been in a relationship with this woman, gained access to the account. The offender knew the password. 10 The woman was absent from Young on 29 August 2013 and had been for some two weeks or more. By a series of messages, the offender, pretending to be the Facebook account holder, lured the deceased to a location (the Weir), where he assaulted the deceased. 11 The offender had sought unsuccessfully to contact the robbery accomplice but met the deceased alone. According to the accused's record of interview, the murder occurred as follows. 12 The deceased walked towards the offender, the offender punched him at which point the deceased fell to the ground. The deceased got to his feet and the offender punched him again. At that point the deceased did not get to his feet and the offender considered the deceased may have been 'knocked out or something'. The offender had a tomahawk down his back, pulled it out and repeatedly hit the deceased with the blunt end. 13 The attack with the blunt end of the tomahawk killed the deceased. 14 The offender told police that he was not 'even angry' with the deceased. It seems if there were motive it was the failure to pay the $600 debt and a fear that the deceased was going to disclose the robbery for which the offender may be imprisoned. The offender denied to police that there was a monetary motive and I accept that. 15 The offender did describe to the psychologist the feeling that he could not stop once he had started and that it was as if he was observing another inflicting the injuries. 16 The circumstances of the offence render it serious even by the standards of murder. Leaving aside those aspects inherent in murder itself, the offence involved some planning by the offender when he lured the deceased by deceiving him into thinking the deceased was not communicating with the offender. I accept that the method was opportunist resulting as it did from the unexpected access to Facebook messages. Nevertheless the intention to assault the deceased predated the event and the method utilised discloses premeditation. 17 Further, the offence involved gratuitous violence beyond that necessary to carry out the offence. The attack with a tomahawk is properly described as frenzied. The offence also involved the use of a weapon but I do not double count that factor and include it in assessing the offence itself only."

Principles to be Applied on Application for Leave to Appeal Against Conviction Following a Plea of Guilty

Brief reference was made earlier to the Applicant's claim of miscarriage of justice occasioned by his plea of guilty to murder (see [9]-[10] above).
The principles to be applied where such a claim is made are not in doubt. In Kanakaradnam v R [2018] NSWCCA 282, with the concurrence of Simpson AJA and N Adams J, I said at [17]-[18]: "17 In the case of an appeal against conviction following a plea of guilty, the ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at 188 [20]. 18 In R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170, the Court said at 312-313 [32]-[35]: '32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33]ff. 33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez (2000) 114 A Crim R 533 at 536-537 [16]-[23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48]. 34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25]. 35 A person may plead guilty upon grounds which extend beyond that person's belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46'."

The Additional Evidence in this Court

Again, brief reference was made earlier to the Applicant's claim that the availability of fresh evidence supports his ground which asserts miscarriage of justice (see [10] above).
There is a controversy between the parties concerning the evidence sought by the Applicant to be placed before this Court on this application. Mr Odgers SC submits that it is fresh evidence. The Crown submits that it is new evidence.
This is an unusual case. Ordinarily, an appeal against conviction based upon fresh evidence arises after conviction at trial. The principles to be applied are to be found in cases where a jury trial had taken place, so that reference to that fact forms part of the statements of principle to be considered.
In the present case, the Applicant pleaded guilty to murder and was sentenced for that offence. There was no trial. He now claims that a miscarriage of justice has occurred by reference to additional evidence (said to be fresh evidence) and he seeks to go behind his guilty plea to seek the quashing of his conviction and an order for a new trial.
In approaching the present ground of appeal, it is helpful to keep in mind what was said by Giles JA (Sully and Levine JJ agreeing) in R v Bikic at [212]: "An appeal is upheld on the ground of further evidence, that is, evidence adduced in the appeal but not called at the trial, if the court is thereby of the opinion that there was a miscarriage of justice, and 'it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities 'should not … be regarded as absolute or hard and fast rules': Green v The King (1939) 61 CLR 167 at 175': Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; see also at 402 per Mason and Deane JJ and 410 per Brennan J."
In the unusual circumstances of the present case, it might be said that the Court should not adopt a strict approach to the classification of evidence now sought to be relied upon as being fresh or new evidence. The ultimate question is whether the Applicant has demonstrated that a miscarriage of justice will result if he is held to his guilty plea to murder and his subsequent conviction.
Where a person appeals against conviction to this Court following a guilty plea, there will inevitably be evidence which seeks to explain the circumstances in which the guilty plea was entered and why it is now claimed that it would be a miscarriage of justice for the conviction, based on the guilty plea, to stand. Cases in that category have not seen application of the fresh/new evidence principles: see, for example, Kanakaradnam v R; Samandi v R [2020] NSWCCA 217 and Ke v R [2021] NSWCCA 177.
However, the Applicant's ground of appeal claims that there is fresh evidence. In these circumstances, the legal framework for appeals to this Court involves an assessment of whether the evidence which is sought to be adduced for the first time in this Court is fresh or new evidence.
This Court has observed on occasions that there is some tension in the explanation of fresh and new evidence emerging from decisions of the High Court of Australia: R v Bikic at [240]-[284]; MRW v R [2011] NSWCCA 260 at [45]-[54].
A helpful summary of the principles was set out by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356, with this summary being called in aid frequently by this Court. Kirby J said at [63]: "The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows: First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399). Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: Is the evidence fresh? If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."
In Xie v R [2021] NSWCCA 1, the Court (Bathurst CJ, R A Hulme and Beech-Jones JJ) said with respect to the distinction between fresh and new evidence (at [433]-[434]): "434 The Crown contended that none of that evidence answered the description of 'fresh' or 'new' evidence and it was all therefore inadmissible. In MRW v R [2011] NSWCCA 260 at [46] ('MRW'), Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: 'First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial …; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant.' 444 With the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material 'could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case' (Ratten at 516 per Barwick CJ). If the material does not meet the first of the above tests, that is, if it is not fresh evidence but only new evidence, then there would only be a miscarriage of justice if the appellant satisfies this Court that the new evidence is such that, taken with the evidence at the trial, the conclusion should be drawn that he was innocent or that his guilt was not established beyond reasonable doubt (Ratten at 518 and 520)."
It is to be kept in mind that the Applicant here does not ask for an outright acquittal. Rather, he seeks that the conviction be quashed and that there be a (new) trial on the count of murder.

Overview of Competing Positions of the Parties

It was submitted for the Applicant that the evidence adduced from Dr Nielssen was fresh, so that the question was whether there was a reasonable possibility that a properly instructed jury at a trial of the Applicant for murder could find him not guilty of murder. It was submitted that application of relevant principles concerning a conviction appeal following a plea of guilty ought lead to the view that a miscarriage of justice was demonstrated so that an order for a new trial should be made.
The Crown submitted that the evidence upon which the Applicant seeks to rely is not fresh evidence, but new evidence, with the critical evidence in this respect being that of the Applicant, which was foundational to Dr Nielssen's changed opinion. Further, whether the Court concluded that the evidence was fresh or new, the Crown submitted that in either case, the proposed evidence lacked sufficient cogency to warrant a grant of leave to rely upon that evidence and to permit the Applicant to now withdraw his plea of guilty and go to trial: MRW v R at [46]; Meissner v The Queen (1995) 184 CLR 132 at 157; [1995] HCA 41; R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at [21].
The Crown submitted that the Applicant had given a new account of his state of mind at the time of the killing, upon which Dr Nielssen relies in his report of 26 September 2019, and that the Applicant's new account is insufficiently credible or reliable to be accepted as a foundation for Dr Nielssen's opinion, so that the application should be refused.

Some Events Before and After the Killing of Mr Power

It is appropriate at this point to refer to certain factual matters occurring before and after the killing of Mr Power on 29 August 2013.
The sentencing remarks of Rothman J referred to the offence itself and its background (see [36] above). There was a grievance between the Applicant and Mr Power which manifested itself in certain events and communications between 7 August 2013 and 28 August 2013: R v Fuller at [5]-[8] (at [36] above). A series of messages were sent by the Applicant on 29 August 2013 to lure Mr Power to the location where he was killed: R v Fuller at [10]-[11] (see at [36] above). The killing of Mr Power, as recounted by the Applicant, was described by Rothman J in R v Fuller at [12]-[17] (at [36] above).
On 9 September 2013, the Applicant attended Young Police Station and participated in an interview during which he denied that he killed Mr Power. He told police that other persons may have wanted to do harm to Mr Power (page 7, Agreed Facts on Sentence).
On 29 October 2013, after the NSW Police Media Unit had issued a media release, including a security camera image of a man wanted to help with inquiries (which was publicised in the Young newspaper), the Applicant contacted an associate in Brisbane, saying that he was thinking of travelling to Queensland because "I'll be on the run … I'm getting sick of it around here … all the Homicide Squad is back in town again, they reopened the case" (page 7, Agreed Facts on Sentence).
After police executed a search warrant at premises in Young on 30 October 2013, at a time when the Applicant was present (but not arrested), the Applicant made further contact with his Queensland associate before travelling to Brisbane by air on 3 November 2013 (pages 8-10, Agreed Facts on Sentence).
After the Applicant and an associate carried out an armed robbery and an attempted armed robbery in Brisbane on 4 November 2013, the two men were arrested by Queensland Police (page 10, Agreed Facts on Sentence).
On 5 November 2013, NSW Police travelled to Queensland and interviewed the Applicant concerning the killing of Mr Power at the Brisbane Watch House. In the course of the interview, the Applicant said (pages 10-11, Agreed Facts on Sentence): "I done it ... I murdered Corey Power ... I hit him in the head repeatedly with the blunt end of a tomahawk... Hacked someone's Facebook and told him to meet up with me ... Typed in their name and password ... I went onto it and Corey in boxed about thirty seconds after I logged in and wanted to meet up ... Walked over to me ... He said who's that or something. I said it's me Owen. He started walking over towards me, and I hit him, I punched him. Then he fell down and then he got back up. Then I punched him again, and it knocked him out or something, cause he didn't get back up. And then I had the tomahawk down my back, and I pulled it out and I hit him with the blunt end on it... I didn't want to do it and I was trying to stop it as I was doing it, but then as I'd try and stop it, it made me want to go harder and hit him again ... We've had arguments on Facebook and that ... Corey said that... basically putting it to us that... he's not paying us back for the generator or whatever, and he's dobbing us ... pretty much either us get locked up for it and get bashed and whatever in gaol ... I just wanted to break his legs, do something to mess him up and teach him a lesson. I'm not even angry with him. That's why I don't even know why it happened... He didn't deserve to go the way he did."
In due course, the Applicant was returned from Queensland to New South Wales where, on 11 February 2015, he was charged with the murder of Mr Power (page 11, Agreed Facts on Sentence).

Legal Representation of the Applicant in the Supreme Court on the Charge of Murder

The affidavits of Mr Wilson SC and Mr Mortimer outline in detail the careful and thorough steps that each of them took when representing the Applicant in 2015 and 2016 upon the charge of murder. This process involved conferences with the Applicant in which, amongst other things, Dr Nielssen's report of 6 October 2015 was discussed. Written advice was provided by Mr Wilson SC and in due course, the Applicant provided written instructions on 29 January 2016 to plead guilty to the murder of Mr Power.
It is clear from the affidavits that Dr Nielssen's report of 6 October 2015 was discussed in conference with the Applicant before he provided instructions to plead guilty.
Early in the hearing before this Court, Mr Odgers SC made clear that no issue was taken with the evidence of Mr Wilson SC and Mr Mortimer (T4, 19 February 2021): "ODGERS: … Just for clarification purposes, your Honours probably will have noted that we haven't asked for Mr Wilson or Mr Mortimer to be present for cross-examination. We do not dispute anything that they say in their affidavits about what happened at the time of what led up to the plea of guilty. So just so that there's no confusion, we accept that Mr Fuller received appropriate advice and our position is that after the report of Dr Nielssen had been received he was told that he had no defence available and subsequently he entered his plea of guilty. That's essentially our position."
In those circumstances, Davies J enquired of Mr Odgers SC whether he still read paragraph 12 of the Applicant's affidavit dated 16 June 2020 which stated: "I don't recall having any discussions with my ALS lawyers about pleading not guilty, and it just seemed to me that the advice was to plead guilty and get the discount on my sentence. I do recall saying to the lawyers on a number of occasions that I wanted to plead not guilty. I never had any discussions with my lawyers about mental health defences or substantial impairment. The first time I ever heard the term substantial impairment was after I instructed my lawyers for this appeal."
In response to the question from Davies J, Mr Odgers SC stated (T4, 19 February 2021): "ODGERS: I do but we read it for the purpose that it goes to his state of mind and it's relevant to these proceedings but to a significant extent we don't rely on his memory or the reliability of his memory of the sequence of events at that time, if that is clear."
Accordingly, there was no challenge to the adequacy or correctness of legal advice provided to the Applicant in 2015 and 2016 prior to his plea of guilty to murder.
However, as will be seen, the credibility and reliability of the Applicant's evidence, in particular his account since 2019 which suggested that he acted under a delusion that Mr Power worked for "The Syndicate" at the time when he killed him, are central issues on this application.

Evidence at the Hearing in this Court Evidence of the Applicant

The Applicant affirmed an affidavit dated 16 June 2020. In that affidavit, the Applicant admitted to killing Mr Power and also agreed with the account given by the sentencing Judge "about what happened and what I did when I killed him" (paragraph 3). The Applicant stated (paragraphs 4-5): "4 Before I killed the deceased all I remember is going to bed and everything else after that is like a dream. I remember in the dream waking up and looking at my phone. The next thing I really remember was being at the weir and I remember seeing people coming. I felt frightened so I jumped over a fence and found a hatchet. Then the people walked past and were gone. I then saw Corey and then I felt 'the syndicate' take over. 5 The syndicate is a supernatural entity that consumes people and controls people. They influence people and feed off their emotions. One of the members of the syndicate is 'Ozzie', who I woke up with when I was 5 or 6 years old. I remember waking up and I saw a bunch of silhouettes everywhere. I could not see 'Ozzie' but could hear his voice. He told me all about syndicate. He told me what they are here for and how they control their lives. 'Ozzie' was always there and is still there today but I don't speak to him anymore. I don't speak to him because I found out that he was one of them."
The Applicant stated why he did not tell Dr Nielssen about "The Syndicate" when he saw him in 2015 (paragraph 11): "11 I do remember seeing Dr Nielssen the first time. I can't recall being told by my lawyers that he was coming, but they may have told me that someone was coming. On the day he came I didn't really know who he was and I didn't know who he was working for. He asked me a number of questions but I can't recall now exactly what he was asking. Because I was still not sure about whether I was going to plead guilty or not guilty I didn't want to tell Dr Nielssen about what happened when I attacked the deceased because I was suspicious that this might harm my case. When I saw him the first time I knew I wanted to take the case to trial because I didn't think I was guilty of murder. I was very relucted to give the psychiatrist information that would incriminate me, so I didn't. I was very suspicious of the Doctor and I thought he was working for the syndicate. I don't recall if I was on any medication at this time or not."
In examination-in-chief by Mr Odgers SC, the Applicant confirmed having heard voices in the last few months and described speaking to Dr Eagle about being "too scared to say anything" about hearing voices when first sentenced, for fear that he might put his life in jeopardy by revealing the existence of "The Syndicate" and that people might think he was "crazy" and "lock [him] in a cell" (T7).
The Applicant described why he was not currently on antipsychotic medication, as explained to Dr Eagle (Report of Dr Eagle, page 3), because he was worried about no longer having any "quality of life", as he had seen in other inmates who were administered antipsychotic medication (T7).
The Applicant described his past experiences of hallucinations, and more recently, the voice of "Ozzie", who was last heard by the Applicant when he was in segregated custody two years before, although the Applicant had also experienced hearing various hallucinatory voices more recently. The Applicant described his reaction to these hallucinatory experiences over the years, stating that he had experienced "nothing more than anxiety" because he had "Ozzie" with him (T8).
In cross-examination by the Crown, the Applicant agreed with the events of the homicide and what was "physically" inflicted on Mr Power, as well as the fact that he did not include "The Syndicate" in the versions he provided between 2013 and 2016 (T9-10).
The Crown asked the Applicant about his motives for not telling his lawyers and Dr Nielssen about "The Syndicate" in 2015. The Applicant said that he was suspicious of both Dr Nielssen and his lawyers being affiliated with "The Syndicate", fearing what may happen if he told them about it (T9-10).
The Applicant recalled being interviewed by Dr Nielssen in 2015 but stated that he did not understand at the time either who Dr Nielssen was, or the importance of Dr Nielssen's report for future proceedings. When interviewed again by Dr Nielssen in 2019, the Applicant no longer held the view that Dr Nielssen might be part of "The Syndicate" (T13).
The Crown also asked the Applicant about his recollection of involvement in the killing of Corey Power, with the Applicant maintaining his belief in the accuracy of the account he gave the Queensland Police in 2013 (T14-15). The Applicant agreed that he had denied killing Mr Power in his September 2013 interview with police (T16).
The Crown concluded cross-examination of the Applicant in the following way (T16-17): "Q. So that dispute that you had with Mr Power over whether he owed money for that or whether he was going to cause further trouble over that, that was a real thing that happened, wasn't it? A. Yes. Q. I suggest that the version of events that you gave the police in 2013 was a version of events that you believed to be true and recalled to be true at the time that you gave it back in November 2013, the version of events where you admitted to the killing? A. Yes. Q. But I suggest also that you didn't, in fact, assault Mr Power in response to a delusional belief but in response to some perceived dispute that you had with him at the time? A. No, I, I assaulted him because there was issues and he was arguing with my mate and he just needed to sort it out but I did hit with the tomahawk. Q. I suggest that the account of events involving the syndicate that you've given now in these proceedings and to Dr Nielssen and Dr Eagle is something that you didn't genuinely experience back in 2013? A. No, I did."
In re-examination by Mr Odgers SC, the Applicant again confirmed that he was aware he had punched and physically struck the deceased with a tomahawk, but was under the impression that the person he assaulted was part of "The Syndicate" (T17). Reports of Dr Nielssen and Dr Eagle
In the report dated 26 September 2019, Dr Nielssen stated that he had interviewed the Applicant by audio-visual link on 20 August 2019. The Applicant told Dr Nielssen about "The Syndicate" and said that, at the time of the killing "I did not know it was him [Mr Power] … I thought it was The Syndicate". Dr Nielssen referred to Justice Health records and other materials and said that there was "a very strong family history of mental illness". Dr Nielssen considered that, on the basis of the further information, the Applicant has a "chronic form of mental illness rather than a transient drug related condition".
Dr Nielssen stated that "the motive of Mr Fuller's offence was the effect of a delusional belief that he was in danger from a group he referred to as The Syndicate, and that he believed Mr Power was somehow involved with them and presented a threat to him" (page 6). Dr Nielssen indicated that the Applicant was able to raise the partial defence of substantial impairment under s.23A Crimes Act 1900 (NSW).
Dr Eagle examined the Applicant by audio-visual link on 29 October 2020 at the request of the Crown and furnished a report dated 13 November 2020.
The Applicant told Dr Eagle that he first became aware of "The Syndicate" when he was five or six years old (page 3). He said "The Syndicate" was "a supernatural race" (page 4).
Dr Eagle noted that the Applicant has no documented history of psychotic disorder in Justice Health clinical records (page 4). The Applicant told Dr Eagle that he believed he saw "The Syndicate" at the time of killing Mr Power (page 8).
Dr Eagle undertook a structural assessment using SIRS2 (Structured Interview of Reported Symptoms), an assessment tool designed to be used as a measure for evaluating feigned mental disorders and establishing a high likelihood of genuine responding. Dr Eagle noted that no determination of malingering or feigning should be based entirely on a single measure (page 11). Dr Eagle noted that the Applicant scored in "the significantly elevated range (8) on the Rare Symptoms scale" and in "the elevated range (18) Selectivity of Symptoms scale". According to Dr Eagle, "the elevated scores in these two primary scales suggest probable feigning of symptoms" (page 11).
Dr Eagle concluded that the Applicant "fell into the indeterminate-evaluate category" which is "said to indicate the need for further assessment of the presence of feigned mental disorders", with this group having "a base rate of more than 50% for feigning" (page 12).
Dr Eagle considered that the Applicant "likely had substance induced psychotic episodes in the context of amphetamine and/or other stimulant use" (page 13).
Dr Eagle noted that "on the information available, the [Applicant's] symptoms appear to have been raised primarily in a medicolegal context and several years after the Index Offence" (page 13).
It was noted that the Applicant had not sought treatment for psychotic symptoms (page 13). Dr Eagle observed that for beliefs in "The Syndicate" to commence when the Applicant was six years old would be "highly unusual" (pages 13-14).
Whilst it was possible that the Applicant has a chronic psychotic disorder (such as schizophrenia), Dr Eagle was unable to form the opinion, on the available information, that the Applicant has a chronic psychotic illness such as schizophrenia (page 14).
According to Dr Eagle, the Applicant has a severe substance use disorder in remission in a controlled environment and he had been diagnosed with antisocial and narcissistic personality disorders (page 14).
As to a possible explanation for the Applicant's symptoms, Dr Eagle stated that the voice was more likely to arise out of emotional distress and dissociative phenomena. Dr Eagle cited the assessment of a psychiatrist on 29 May 2015, which stated that the Applicant's behaviour was "dissociative" and "largely related to having antisocial personality disorder and primitive defence mechanisms" (page 5). This accorded with Dr Eagle's final diagnoses of severe substance use disorder in remission in a controlled environment and antisocial personality disorder (page 14).
With respect to the partial defence of substantial impairment under s.23A Crimes Act 1900 (NSW), Dr Eagle stated that it was not clear, at the time of the killing of Mr Power, that the Applicant had "an underlying condition". The Applicant's "account of his symptoms appears to be highly unreliable" (page 14). The Applicant may have had substance induced symptoms of psychosis (page 14).
Dr Eagle observed that the Applicant maintained a persecutory belief in "The Syndicate", "although he does not appear distressed or pre-occupied by the belief and associated perceptual disturbances" (page 15).
Dr Eagle stated that it would be "highly unusual" for "perceptual disturbances that had sufficient intensity to motivate a person to kill another" to "cause no observable ongoing impact on their subsequent mental state or behaviour over several years without antipsychotic treatment" (page 15).
Although the Applicant appeared to acknowledge planning to meet Mr Power and bashing him "without reference to any psychotic phenomena", Dr Eagle noted that the Applicant maintained that his use of the weapon to attack Mr Power "was motivated by a delusion and associated perceptual disturbances" (page 15).
Dr Eagle concluded that, from a psychiatric perspective, she was unable to conclude that the Applicant's capacity at the time of killing Mr Power was "so impaired as a result of symptoms of psychosis that he would have had significant difficulty understanding events, judging right from wrong or controlling himself" (page 15). Concurrent Evidence of Dr Nielssen and Dr Eagle
Following the Applicant's evidence, the concurrent evidence of Dr Nielssen and Dr Eagle proceeded (T21-42).
Of significance was the explanation for Dr Nielssen's change in diagnosis between his reports of 2015 and 2019. The initial psychiatric diagnoses given by Dr Nielssen in 2015 were substance use disorder, or in the alternative, substance induced psychotic illness. Dr Nielssen's diagnosis was made on the basis of the Applicant's "history of symptoms of psychosis that appear[ed] to have been triggered by continuous use of high doses of methamphetamine over a period of several months, and which ha[d] largely resolved - without treatment with antipsychotic medication" (Report of Dr Nielssen dated 6 October 2015, page 6).
In evidence, Dr Nielssen stated a revised view that the pattern of symptoms seen in the Applicant was more typical of schizophrenia than a transient drug-related condition, particularly where symptoms were persistent even when the Applicant was not using drugs (T21-22; Report of Dr Nielssen dated 26 September 2019, page 6). Dr Nielssen stated that the "bizarre beliefs" in a wider conspiracy were indicative of "the slipping cogs of logic of a more chronic kind of mental illness". Dr Nielssen also attributed his change in opinion to the additional knowledge and understanding of schizophrenia he had gained since 2015 (T22; Report of Dr Nielssen dated 26 September 2019, page 6). I will return to this aspect later in the judgment (see [137] (b), [140] below).
Dr Eagle was asked to address why, conversely, she did not conclude that the Applicant had a chronic psychotic illness. Dr Eagle noted that while the Applicant had some substance induced psychotic symptoms, they had been "relatively inconsistent over a long period of time", with the description of "The Syndicate" only being raised in the last 12-24 months (T23-24). This was echoed in Dr Eagle's report of 13 November 2020 where it was stated that the Applicant appeared to only have mentioned his belief in "The Syndicate", and the associated perceptual disturbances, over the last several months in the context of an appeal from his conviction (Report of Dr Eagle dated 13 November 2020, page 15).
Dr Eagle observed the "lack of any real objective evidence of the impact of psychotic symptoms" on the Applicant's behaviour, apart from his description of the index offence (T23). The Applicant had not exhibited any "leakage" of paranoid symptoms and had never received any treatment with antipsychotic medication.
Further, all of the symptoms described by the Applicant in the last year had now "resolved without any treatment" and Dr Eagle found it difficult to reconcile how the Applicant's actions of inflicting serious harm to another person could resolve over time despite ongoing stressors, if the Applicant did indeed have a severe psychiatric or psychotic illness (T23-24). Dr Eagle also stated that where schizophrenia is a "neuro developmental disorder", it could not purely manifest in positive symptoms of psychosis; there must be other observable signs of the illness, such as functional impairment. Hence, even where the Applicant had not been using drugs, "some form of ongoing deterioration" would be expected, particularly where the Applicant described the symptoms continued in fact for a number of years after the index offence, despite the use of drugs (T32).
In response to the apparent resolution of symptoms, Dr Nielssen conceded that it was "a little atypical" for symptoms to resolve without any treatment, although he did describe the possibly "episodic" nature of schizophrenia, where certain events could cause further acute episodes of illness after periods of remission (T24).
The Crown raised the Applicant's capacity to ignore and put to one side the symptoms he experienced. Dr Nielssen conceded that to both express symptoms and yet be in command of them was "a little atypical". He noted that while it was typical of people with chronic schizophrenia who were treatment resistant to manage their "intrusive hallucinated voices", the Applicant had not had treatment for schizophrenia and was not in the category of long-term treatment resistant patients (T25-26).
Dr Nielssen stated that both the Applicant's state of mind at the time of the offence, and the totality of the evidence he received were convincingly evident of an underlying psychotic illness. The record of interview with Queensland police was also deemed a "convincing account" of the Applicant's symptoms of schizophrenia (T28-29). As to the inconsistencies of the Applicant's accounts in 2015 and 2019, Dr Nielssen agreed that there were substantial inconsistencies, but also stated that the "origins of the psychosis" had been clarified, as his scientific understanding of psychosis had increased in the last five years (T31).
Price J asked Dr Nielssen whether the Applicant had a "feigned mental disorder" and whether he had based his diagnosis on the Applicant's own subjective report. Dr Nielssen was asked (T30-31): "PRICE J: Wouldn't that be an aspect for you to consider whether or not what you are told about the syndicate on 20 August was genuine and not fake? WITNESS NIELSSEN: I don't have really an opinion on that. I think it was his state of mind at the time of the offence that, that it appeared to me to be convincingly evident of an underlying psychotic illness. PRICE J: But your diagnosis is based on acceptance that what he told you on 20 August is genuine. WITNESS NIELSSEN: 20 August 2019, that he continued to experience hallucinations, yes it's partly based on that but it's not entirely based on it. PRICE J: And what he told you about the syndicate more precisely. WITNESS NIELSSEN: No, that's not the basis of the diagnosis. The basis of the diagnosis is the whole, all the information, including from his mother to juvenile justice health staff in 2008, from knowledge of family history. Just all the information is, is, goes towards making a diagnosis, not simply that subjective report. PRICE J: Dr Eagle considered the question of whether it was a feigned mental disorder, and I refer in particular to AB103, Dr Eagle's report. Did you give any consideration as to whether it is a feigned mental disorder? WITNESS NIELSSEN: Yes, both because of the atypical nature perhaps of being able to describe those symptoms without having objective signs of an abnormal, or very abnormal emotional responses or disorganised communication. But the other information, as I mentioned, convinced me that the correct diagnosis is one of schizophrenia. PRICE J: Did you consider in that consideration of whether it may be fake or feigned, the record of interview that was given to the Queensland police, in particular the description of how the killing occurred? WITNESS NIELSSEN: No, not to do with that. I mean, in terms of determining the diagnosis and the mental phenomena that were going on at that time, I thought that particular record was a very convincing account of symptoms of schizophrenia. PRICE J: I don't understand that. WITNESS NIELSSEN: Well the account of the motivation for the killing wasn't to my mind the information that determined whether he had a diagnosis of schizophrenia. PRICE J: Would it not have some basis for considering the credibility of the account that he gave you when you interviewed him on the second occasion, which I understand was 20 August? WITNESS NIELSSEN: Sorry, your Honour, I'm not clear, what do you mean? PRICE J: The inconsistency between what he told the police in Queensland and what he told you on 20 August as to the circumstances of the killing. WITNESS NIELSSEN: There's lots of inconsistencies between people, you know, being interviewed by the police and the subsequent - PRICE J: But you would agree would you not there's a substantial inconsistency? WITNESS NIELSSEN: Again I do agree that it's not the same, yes. PRICE J: It's more than not the same, it's a substantial inconsistency isn't it? WITNESS NIELSSEN: Yes. PRICE J: How would that impact upon your assessment of the truthfulness of what he was telling you on 20 August? WITNESS NIELSSEN: Well, I mean what, do you mean in terms of the symptoms that he's experienced? Whether the account of his symptoms was truthful, is that what you mean? PRICE J: His account of what he was experiencing at the time of the killing. WITNESS NIELSSEN: I mean I was quite convinced by his, the other symptoms he was describing at the time of the interview by the police, which convinced me that he was affected by a psychotic illness, and that was my conclusion in the first report. It was really the, the origins of the psychosis that was unclear, and as I said my scientific understanding of psychosis has marched on a lot in those five years."
Price J then asked Dr Eagle (T31-32): "PRICE J: Dr Eagle, you have heard me ask Dr Nielssen about what you said about it would be highly unusual or unlikely. Is there anything that you'd like to add about what Dr Nielssen has said about those aspects? WITNESS EAGLE: Well I mean I maintain my view that it is highly unusual or unlikely for somebody with severe symptoms of psychosis to actually not demonstrate any objective signs of those symptoms, and I think as Dr Nielssen has quite accurately said, [psychosis] is a neuro developmental disorder and it's considered neuro degenerative, which means it has a deteriorating course generally, and the duration of untreated psychosis correlates actually with increased rates of treatment resistant psychosis. So I think what you would expect is that if a person had experienced such a severe episode of psychosis, that had persisted for such a long period of time without treatment, that in fact his level of function and his presentation would become, well his level of function would continue to deteriorate and his presentation would become increasingly disturbed, although it might fluctuate during that course, and that's something we've not seen in this case."
As noted earlier, Dr Eagle performed a Structured Interview of Reported Symptoms, an assessment tool primarily designed to assess for feigning within the domain of mental disorders and psychopathology. The Applicant scored in the significantly elevated range on the Rare Symptoms scale which indicated that he had an atypical presentation and a tendency to report very unusual symptoms that are not observed in clinical populations. He also scored in the elevated range in the Selectivity of Symptoms scale, which could indicate an unsophisticated attempt to appear mentally disordered.
The Crown asked questions concerning the Applicant's ability to give a "rational and generally coherent account of what occurred and what he did on the night of the killing" when he was interviewed by the Queensland police. It was posited that this indicated the Applicant's thought processes were "rational and based in reality" and that he was "not delusional" (T34-36).
In response, Dr Nielssen said that underlying delusional beliefs could take some time to emerge in those diagnosed with schizophrenia, and that the offence was "hugely disproportionate" to the argument described between the Applicant and Mr Power. Accordingly, there may have been "some underlying fear or belief" that caused the assault (T36).
Dr Eagle reiterated that it appeared that the Applicant displayed a "rational motive" as opposed to a "psychotic motive", as well as that "The Syndicate" belief did not fully explain why the Applicant took the tomahawk to meet with the deceased. It was also noted that the effect of alcohol could be relevant to the Applicant's presentation at the time, which might have explained his response or his violent behaviour "to some degree" (T36).
The disproportionate use of force by the Applicant and its correlation with the Applicant's mental illness and substance use was then discussed. In a report from Ms Anna Robilliard dated 1 April 2016 (which was before the sentencing Judge), the Applicant's scores on the psychopathy checklist (PCL-R) strongly suggested psychopathy, with the Applicant approaching significance in sadistic aggressive attributes. When asked whether this could have impacted upon the ferocity of the attack, Dr Nielssen and Dr Eagle differed in their opinions on the validity and reliability of the test. Dr Nielssen did not find that it was a "valid or reliable measure". Dr Eagle noted that the checklist had less validity in the case of chronic illness, but had been widely researched and strongly validated as associated with an increased risk of violence in forensic mentally ill populations (including detained patients) and offender populations (T38-39).
When asked by Price J, Dr Nielssen confirmed that the continuous use of methamphetamines over time was certainly associated with "increased aggression" and "disproportionate violence" (T39).

Submissions of the Parties Submissions for the Applicant

Mr Odgers SC submitted that the ultimate question for the Court was whether the account that the Applicant gave in recent years concerning his state of mind on 29 August 2013 (a delusion involving "The Syndicate" at the time of killing Mr Power) was capable of belief by a jury acting reasonably. He submitted that the 2019 opinion of Dr Nielssen constituted fresh, and not new, evidence so that a less demanding test should be applied by the Court in determining to admit the evidence, and then assess the question of miscarriage of justice for the purpose of deciding whether the conviction should be quashed despite the Applicant's plea of guilty to murder.
It was submitted that the Court was not required to make a finding concerning the truthfulness of the Applicant's evidence, but rather should ask whether his evidence is capable of belief by a jury acting reasonably.
Whilst acknowledging that the Applicant could have told Dr Nielssen about "The Syndicate" at the interview in 2015, it was submitted that the Applicant's omission to do so should be considered in the context of his then state of mind.
In addressing the fresh/new evidence question, it was submitted that the Court should extend great latitude to the Applicant when determining what evidence could have been available by reasonable diligence, prior to the entry of the guilty plea: Abou-Chabake v R at [63] (see [48] above). This was so, it was submitted, as the Applicant's failure to provide a full history in 2015 was because he was suffering from a mental illness.
It was not submitted that the Applicant is a reliable historian of events surrounding the homicide, his subsequent dealings with the police, his lawyers and the courts. What was said to be critical, however, is the Applicant's account as to his state of mind at the time he killed Mr Power and, in particular, his claim that he was motivated to kill a member of "The Syndicate". If this claim is capable of belief, it was submitted that the appeal should be allowed.
Mr Odgers SC acknowledged that the Applicant had made no mention of "The Syndicate" until he spoke to Dr Nielssen in October 2019, although he pointed to references in the documentation to the Applicant having heard voices on prior occasions.
Reference was made to certain entries in notes, including the Applicant telling his solicitor, Mr Mortimer, on 17 July 2015 about "Ozzie" (paragraphs 17-18, affidavit of Mr Mortimer, 18 December 2020) and an indication by the Applicant's mother in 2008 that she believed he may be experiencing schizophrenic symptoms.
With respect to the application to go behind the Applicant's guilty plea, reliance was placed, by analogy, upon R v Maltese (2004) 150 A Crim R 97; [2004] NSWCCA 408 at [17]-[18], in support of the submission that there was "real doubt" about the Applicant's guilt of murder.
Mr Odgers stated that there was no issue that the Applicant arranged to meet Mr Power, against a background of hostility, and that he punched him and also possessed a tomahawk. It was the effect of "The Syndicate" delusion which led the Applicant to then use the tomahawk to kill Mr Power, not realising at the time he was striking Mr Power, but that "he was hacking the man from [The Syndicate]" (T47).
If the Court accepted that it was reasonably possible that the Applicant was suffering from schizophrenia as at 29 August 2013, and that his reasons for not providing the account about "The Syndicate" related to suffering from schizophrenia, it was submitted that the Court should not regard the plea of guilty as an impediment to overcoming a miscarriage of justice. Submissions for the Crown
The Crown submitted that the application was based upon the change in the Applicant's account (introducing the alleged delusion concerning "The Syndicate"), which had given rise to Dr Nielssen's changed opinion in 2019. This way new evidence, not fresh evidence, as it was always open to the Applicant to disclose his delusion concerning "The Syndicate" (if it was true) at an earlier time, including to Dr Nielssen and his own lawyers in 2015.
The Crown submitted that the acceptance or otherwise of the Applicant's evidence was a factual question for determination by this Court on the fresh/new evidence issue. It was submitted that the question is not whether the evidence would be capable of persuading a jury that the Applicant suffered from psychotic illness at the time of the homicide. Rather, the Crown submitted, the question is whether or not the Court should accept the Applicant's explanation for not giving an account in 2015 which was consistent with what he said to Dr Nielssen in 2019.
The Crown submitted that the Applicant gave a completely new version in 2019, which was markedly different from what he had said between 2013 and 2015, including what he told Dr Nielssen in 2015. The Crown noted that the killing of Mr Power involved an element of planning, both before and after the offence. There was animosity between the Applicant and Mr Power. The Applicant deleted the Facebook messages and discarded his bloody shoes. This behaviour was inconsistent with the Applicant acting in response to delusions and perceptual disturbances.
In addition, the Applicant's criticism in his affidavit of his lawyers at first instance did not assist his credibility.
The Crown pointed as well to the evidence of Dr Eagle, including her analysis of the accounts given by the Applicant and the opinion of Dr Eagle concerning the Applicant feigning his symptoms. It was submitted that the Court should accept Dr Eagle's opinions and that this conclusion would undermine the Applicant's case in this Court.
The Crown submitted that the Applicant's new evidence is not capable of raising a reasonable doubt as to the Applicant's guilt of murder, as his evidence is insufficiently cogent or credible or capable of belief.
It was submitted that the Applicant had not demonstrated a miscarriage of justice and that leave to appeal should be refused.

Decision

The Applicant pleaded guilty to the murder of Mr Power after receiving thorough and competent legal advice which took into account the report of Dr Nielssen dated 6 October 2015. That report did not identify any arguable basis upon which the Applicant could go to trial on the murder count on mental health grounds.
Senior counsel for the Applicant was not at all critical of the Applicant's legal representatives at first instance. This approach is entirely understandable as the affidavits of Mr Wilson SC and Mr Mortimer make clear that they acted, at all times, in a professional and thorough way. Advice was given to the Applicant and signed instructions were obtained to plead guilty to murder. The Applicant was provided with complete and informed advice by the capable legal team who were then acting for him.
A diagnosis of substance induced psychotic illness could not assist the Applicant in advancing a defence of mental illness (Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210) nor a partial defence of substantial impairment (s.23A(3) Crimes Act 1900 (NSW); Fang v R at [55]). In any event, as Dr Nielssen observed in his report of 6 October 2015, the Applicant "did not report killing Mr Power in response to a delusional belief or symptoms of a chronic mental illness" (see [7] above).
It is entirely understandable that the Applicant pleaded guilty to murder in these circumstances.
Dr Nielssen has expressed a different opinion in his report dated 26 September 2019 and in evidence.
From Dr Nielssen's 2019 report and his oral evidence, it appears that three factors influenced his change of opinion: 1. some references in records which suggested that the Applicant had some prior mental health issues including an indication of some family history; 2. since 2015, in light of certain studies, Dr Nielssen has changed his view generally concerning substance induced psychosis and now prefers to use the term "substance exposed schizophrenia" (T27, 19 February 2021); 3. it was the Applicant himself who provided Dr Nielssen, at the interview on 20 August 2019, with a new account of his state of mind at the time of the killing in which he said (for the first time) that he struck Mr Power with the tomahawk, as he believed he (Mr Power) was "The Syndicate" or a representative of "The Syndicate", with this aspect being critical to Dr Nielssen's revised opinion.
For the purpose of determining whether the Applicant relies upon fresh or new evidence, it is necessary to consider firstly whether the evidence was available to the Applicant at the time of the sentencing proceedings: R v Abou-Chabake at [63] (see [48] above).
As to records concerning the Applicant (see [137] (a)), these records were available to the Applicant and his legal representatives and many were taken into account before a plea of guilty was entered.
As to Dr Nielssen's changed opinion concerning substance induced psychosis (see [137] (b)), it may be taken that scientific knowledge continues to develop and is not fixed in time. That said, as Dr Eagle observed by reference to the same studies, about 25-40% of persons diagnosed with methamphetamine-induced psychosis go on to develop schizophrenia or are diagnosed with schizophrenia (T28, 19 February 2021). The question in the present case requires consideration of the Applicant's mental state at the time of killing Mr Power. Consideration of this question involves an assessment of the various accounts of events given by the Applicant, viewed against the background of his history of drug and alcohol usage. I do not consider that Dr Nielssen's general (and altered) view of drug induced psychosis advances the Applicant's case on the present application.
It is the Applicant's altered account (see [137] (c)) which is critical to the question whether this application is based upon fresh or new evidence, and also the outcome of the application. The Applicant has given a new account in which his beliefs concerning "The Syndicate" are said to have played a decisive role in the killing of Mr Power. The Applicant asserts that his thought processes on 29 August 2013 always involved intrusion of "The Syndicate" although he has not told anyone about it until 2019.
In my view, this account (if true) was always available to the Applicant at the time of his sentencing proceedings in 2016. It is new evidence and not fresh evidence (see [48]-[49] above).
Even when all three factors (referred to in [137]) are taken together, the critical consideration remains the third factor - the Applicant's statement, since 2019, that it was his thought processes concerning "The Syndicate" which were linked inextricably with his killing of Mr Power.
The evidence upon which the Applicant relies in this Court ought be characterised as new and not fresh evidence. It is appropriate to address that issue by observing that the Applicant himself has added further features to his account, but that this was always available to him. It is not a correct approach to consider the fresh/new evidence issue only by reference to Dr Nielssen's opinion evidence.
I accept the Crown submission that the central question for this Court is whether the Applicant's evidence concerning "The Syndicate" delusion, when killing Mr Power, is credible or capable of belief. It is that account which is the principal factor leading to Dr Nielssen's changed opinion. In reality, Dr Nielssen's opinion is secondary to, and dependent upon, the Applicant's account concerning "The Syndicate" and its suggested role in the homicide.
I do not accept the Applicant's submission that the Court should confine the question to be asked to whether or not the Applicant's evidence is capable of belief by a jury acting reasonably. It may be, of course, that the same answer will be given in this case, regardless of the question asked.
The task of the Court is to consider whether the Applicant's evidence is credible or capable of belief, with this issue to be determined by reference to the accounts given by the Applicant in the past to police, psychiatrists and other persons as to why he killed Mr Power. In addition, the tests carried out by Dr Eagle shed some light on this question.
When first interviewed about the death of Mr Power in September 2013, the Applicant denied being involved at all and suggested that other persons may have been responsible (see [56] above). This does not sit easily with the explanation now proffered of the commission of the killing whilst subject to a schizophrenic event associated with delusional thinking.
The Applicant became aware of the ongoing police investigation and made arrangements to flee to Queensland, displaying clear thinking in this respect (see [57]-[58] above).
When the Applicant was interviewed in Queensland in November 2013, he gave an account of the killing of Mr Power with the tomahawk in a way which appeared complete (see [60] above). It is true that the Applicant, at one point in the interview, said that it was as though he was watching someone else carry out the act: R v Fuller at [15] (see [36] above). However, that does not sit easily with the Applicant's recent account that the fatal tomahawk attack on Mr Power arose from delusional thinking associated with "The Syndicate".
There are significant difficulties with important features of the Applicant's evidence in this Court. Firstly, although he referred, in a passing fashion, to voices in his 2015 consultation with Dr Nielssen, the Applicant did not assert that the voices had played any part in the killing of Mr Power. It was not until much later, and after the Applicant had been sentenced, that he commenced to mention in 2019 the existence of "The Syndicate" as being part of his claimed delusional experiences at the time he killed Mr Power. This appears to be an elaborate and significant addition to what he had said on prior occasions.
Secondly, the Applicant seeks to explain his failure to mention the voices as playing a part in the killing of Mr Power because he was, in some way, embarrassed by this feature and did not want people to think that he was "crazy". As raised with Mr Odgers SC during submissions (T50), this presented the difficulty that the Applicant was apparently prepared to mention voices in his 2015 discussion with Dr Nielssen, but not to suggest that the voices had anything to do with the killing of Mr Power.
There was animosity between the Applicant and Mr Power, with the Applicant using the Facebook page to cause Mr Power to attend the scene of the killing. This was a planned attack, with a motive on the Applicant's part to harm Mr Power. The Applicant admits that he attacked Mr Power and punched him to the ground. It is at that point, on his 2019 account, that delusional thoughts intruded so that the Applicant used the tomahawk (which he had taken to the scene) to kill Mr Power in the belief that he was "The Syndicate".
The evidence of Dr Eagle was persuasive. Dr Eagle considered the material in the Applicant's case in a thorough and methodical way with direct explanations being provided for the critical features of her opinion.
Dr Nielssen, on the other hand, appeared to play down the significance of the important differences in the Applicant's accounts given to him in 2015 and 2019. In this way, Dr Nielssen appears to have approached the issue in a largely uncritical fashion.
To the extent that Dr Nielssen pointed to the lack of an understandable explanation for the savage tomahawk attack which occurred, it is appropriate to keep in mind (as the Crown submitted) that the Applicant does have a prior history of explosive violence.
There is passing reference in records, dating back some years, to the Applicant's family having mental health issues, with the Applicant's mother saying something in this respect in 2008. However, there is not a demonstrated family history of mental illness in the material before the Court.
What is significant, however, is that the Applicant has not been treated for psychosis whilst in custody, nor has there been a diagnosis of an underlying schizophrenic condition in relation to which he has been treated. Dr Eagle emphasised the improbability that symptoms of psychosis would resolve over time without psychiatric treatment. This would be highly unusual, and not just "a little atypical", as suggested by Dr Nielssen.
Dr Eagle assessed the Applicant concerning the feigning of symptoms (see [85]-[86] above). Her conclusion does not assist the Applicant. Although it is a matter for the Court to determine, the tests applied by Dr Eagle serve to fortify a conclusion, from an examination of all the evidence, that the Applicant's evidence should not be accepted as being truthful on critical issues for the purpose of this application.
Relevant to the Applicant's credibility is the fact that, in his affidavit of 16 June 2020, he included the assertion that he never had any discussions with his lawyers about mental health defences or substantial impairment, and that the first time that he ever heard the term "substantial impairment" was after he instructed lawyers for the purpose of the appeal (see [65] above). This claim simply cannot stand in the face of the detailed contemporary documentation which accompanied the affidavits of Mr Wilson SC and Mr Mortimer.
I do not accept the submission for the Applicant that this feature may be put down, in some way, to poor memory. Rather, it is significant that the Applicant is criticising, without foundation, his previous legal representatives for the purpose of advancing his case in this Court. Rather than assisting the Applicant's case, this conduct serves to undermine his credibility in a significant respect. It should lead the Court to approach his evidence with even greater circumspection than that which would ordinarily arise where a person seeks to go behind his plea of guilty on appeal in this Court.
If the Applicant was subject to any deluded or distorted thinking at all at the time of killing Mr Power (and I do not accept that he was), it was the product of his consumption over a period of time of methamphetamine and alcohol. Self-induced intoxication must be put to one side for the purpose of the partial defence of substantial impairment: s.23A(3) Crimes Act 1900 (NSW).
The Court received the evidence led on this application, including that of the Applicant, Dr Nielssen and Dr Eagle, so that the Court could consider the evidence to make necessary rulings and findings.
I conclude that the evidence of the Applicant, claiming the existence of "The Syndicate" delusion at the time of killing Mr Power, is not credible and I reject it. Nor, in my view, is it capable of belief by a jury acting reasonably. The 2019 opinion of Dr Nielssen, which is dependent upon the Applicant's new version, falls away as well in light of these circumstances.
If it be new evidence (as I think it is), there would only be a miscarriage of justice if the Applicant satisfies the Court that the evidence is such that, taken with the evidence at the earlier proceedings, the conclusion should be drawn that the Applicant is not guilty of the murder of Mr Power. Such a conclusion should not be reached on the evidence.
If it be fresh evidence, it should not be regarded as credible or capable of belief. It is clearly not the case that there is a significant possibility that a jury acting reasonably would have acquitted the Applicant of murder.

Conclusion and Orders

The Applicant has the burden of proving that there has been a miscarriage of justice for the purpose of s.6(1) Criminal Appeal Act 1912 (NSW) (see [12] above). It has been said that an application to go behind a guilty plea is to be "approached with caution bordering on circumspection": R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [33] (see [38] above). The present case exemplifies why a cautious and circumspect approach is warranted where such an application is made.
The Applicant has not demonstrated that a miscarriage of justice will be occasioned if he is held to his plea of guilty, and his conviction for the murder of Mr Power.
Given the analysis of the evidence and principles undertaken by the Court on this application, I would extend time for the Applicant to bring the application but would refuse leave to appeal against conviction.
I propose the following orders: 1. extend time to 13 July 2020 for the filing of a Notice of Appeal; 2. refuse the Applicant leave to appeal against conviction.
PRICE J: I agree with Johnson J.
DAVIES J: I agree with Johnson J.

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