Summary of Evidence at the Trial
8 The appellant and the deceased entered into a de facto relationship, soon after the deceased arrived in Australia from England in 1994. Two children were born of the relationship between the appellant and the deceased, a boy Cameron who was born on 1 August 1999 and a boy Ryan who was born on 10 August 2001.
9 The relationship between the appellant and the deceased broke down. Prior to the breakdown of the relationship they had been living in Torrington in northern New South Wales. After the breakdown of the relationship the appellant lived in Guyra in a flat in a small block of flats, which he purchased in about December 2001. The deceased remained living at Torrington.
10 On New Year's Day 2002 the appellant was informed that the deceased had entered into a relationship with a man named Douglas Ellis, who was known to the appellant and who lived in Parkes. On the following day, when the appellant spoke to the deceased, she admitted that she had entered into a relationship with Mr Ellis and told the appellant that the child Ryan had slept in the same bed as the deceased and Mr Ellis.
11 Having received this information, the appellant, who had been exercising access to the child Cameron, refused to return Cameron to the deceased. However, on 18 January 2002 a Local Court, on an application by the deceased, made an order granting each of the appellant and the deceased custody of Cameron in alternate weeks ("week in/week out custody"). No order was made for custody of Ryan, who was still being breast fed by his mother.
12 In the early months of 2002 the deceased twice commenced proceedings against the appellant for apprehended domestic violence orders.
13 On 7 February 2002 the deceased made a statement to a police officer Constable Tucker in support of an application for an apprehended domestic violence order against the appellant. In this statement, which was read at the trial by Constable Tucker in the course of giving her evidence, the deceased said that the appellant had been physically violent towards her on three occasions. In March 1999 he had slapped her on the face following an argument. Later in 1999 after the birth of Cameron, the appellant, while he was wearing his work boots, had kicked the deceased twice in the buttocks, causing bruising. In April 2001 the appellant had thrown a meal on the floor and had slapped the deceased on the head.
14 In his evidence at the trial the appellant admitted that in March 1999 he had slapped the deceased on the face, after an argument in which both of them had been "yelling and screaming"; that he had kicked the deceased but it had not been a serious assault and there had not been any bruising; and that he had thrown a meal on the floor but had not then slapped the deceased.
15 In her statement of 7 February 2002 the deceased said that the appellant had informed her that he intended moving back into the house at Torrington. The deceased said that she was afraid that, if the appellant moved back into the house, there would be further heated arguments and violence.
16 After Constable Tucker had finished reading the deceased's statement of 7 February 2002, the trial judge directed the jury that the statement was "evidence of relationship between the deceased and the accused… you are not in anyway to use it in connection with any propensities on the accused's part to violence".
17 On 15 March 2002 the deceased made a statement to a police officer Constable Cooper in support of a further application for an apprehended domestic violence order. In this statement, which was read at the trial by Constable Cooper in the course of giving his evidence, the deceased said that she had not proceeded with her previous application for an apprehended domestic violence order, because the appellant had told her that he would not be moving back into the house at Torrington. In this statement the deceased said that on 15 March 2002 at the house in Torrington the appellant had said to her:-
"I am going to break you. If you ever win custody of these two boys I will put a bullet right between your eyes. I was going to do it the other day when you were at my place. I had a loaded rifle there then. You will never see England or your family again. I could do the time. I will only get five years for manslaughter. You will never see your children grow up. You will never see England again".
18 The deceased said in her statement that she had become extremely frightened for her safety.
19 At the trial two witnesses Mr and Mrs Armand gave evidence that at a meeting with the deceased on 17 March 2002 the deceased had told them that the appellant had threatened to kill her by shooting her. Another witness Juanita Haar gave evidence that in a telephone conversation on 18 March 2002 the deceased had told her that the appellant had told the deceased that he would "blow her brains out when she least expected it".
20 In his evidence at the trial the appellant denied that he had said anything like what the deceased alleged in her statement he had said on 15 March 2002.
21 The deceased did not proceed with her second application for an apprehended domestic violence order.
22 The appellant himself in both the interview with the police and in his evidence at the trial described an incident in which he said the deceased had told him that she had sold a solar panel which the appellant wished to take on a camping trip with Cameron and had "dragged" Cameron away from the appellant. The appellant continued in his answer in the interview by saying that he had said to the deceased:- "Now I can understand why some Australian husbands in my situation take their own lives and their wives'".
23 A witness Mrs Edwards gave evidence that on 3 March 2002, after the deceased had left her house, the appellant telephoned asking whether the deceased was still there and, when informed that the deceased had left, the appellant had said that he was sick of the deceased's lies and "I'll shoot her and the boys".
24 In his evidence at the trial the appellant admitted that he had told Mrs Edwards that he was sick of the deceased's lies but denied that he had made a threat to shoot the deceased and the boys, saying that "the boys are my life".
25 Evidence was given by the appellant about the state of his health in 2002.
26 In April 2002 he had taken Cameron camping and had become soaked by heavy rain. He thought he had then contracted a viral infection, which had lingered on for the rest of the year. At about this time the appellant was prescribed the anti-depressant drug Zoloft and it was revealed that the appellant had high blood pressure.
27 In August and September 2002 the appellant spent about three weeks in a hospital in Armidale, because of his respiratory illness and his state of depression. He was seen by a psychiatrist, who prescribed an increase in the dosage of Zoloft.
28 Proceedings between the deceased and the appellant concerning custody of and access to the two children of the relationship were heard in the Family Court in Tamworth on 28 and 29 November 2002. The appellant had been granted Legal Aid in the Family Court proceedings but at a late stage Legal Aid was withdrawn and the appellant appeared unrepresented.
29 Interim orders only were made by the Family Court in November 2002 and a final hearing was fixed for June 2003. Under the interim orders the appellant's access to the children was reduced. His access to Cameron was reduced from "week on/week off" access, which had been the position under the Local Court order of 18 January 2002, to weekend access each week. In fact, the appellant erroneously believed that his access had been reduced to weekend access, only every second week. The appellant's access to Ryan was limited to a few hours each week. The Family Court noted that at the final hearing the deceased would be seeking an order that she have the right to travel to the United Kingdom for a period of two months in every two year period for the purpose of visiting her family with her children.
30 The appellant gave evidence that, after the Family Court had given its decision, the deceased had told the appellant:- "I told you. You can't win".
31 The appellant said in his evidence that he had found it "too painful" to go to Torrington, where he had formerly lived and where Mr Ellis now sometimes stayed, to pick up the children and he tried to negotiate some other place for the picking up and returning of the children.
32 The appellant gave evidence both in the interview and at the trial about an unusual incident which had occurred on 4 December 2002. The appellant had agreed to assist a recently widowed woman to remove goods from a property at Ben Lomond. While the appellant was at the property, a woman on a motorcycle, who claimed to be the owner of the land, drove the motorcycle at the appellant and ran over his leg. Furthermore, a man carrying a hammer attempted to strike the appellant with the hammer. The appellant believed that his life was in danger and police were called. It rained while the appellant was at the property and he became very ill again from his respiratory illness.
33 On Friday 6 December 2002 the appellant drove to Torrington and picked up Cameron for the purpose of exercising weekend access, in accordance with the interim order of the Family Court.
34 The appellant also picked up a woman named Kerryanne Hunt, who lived in Glen Innes. Ms Hunt and her de facto partner Mr Geoffrey Orchard were known to the appellant. Ms Hunt was to stay over the weekend in one of the flats in the block of flats owned by the appellant, to assist the appellant, who was ill, in caring for Cameron and to help herself to abstain from drinking alcohol.
35 The appellant drove Cameron and Ms Hunt to Guyra.
36 The appellant was ill in bed all of Saturday 7 December 2002. In his evidence at the trial he claimed, for the first time, that he had had a sensation of "floating above the bed".
37 On the night of Saturday 7 December 2002 the appellant telephoned the deceased and told her that he would be too ill to drive Cameron back to Torrington the following day and the deceased agreed that she would herself pick up Cameron at Guyra.
38 On the morning of Sunday 8 December 2002 the appellant telephoned the deceased and requested that she pick up Mr Orchard and bring him to Guyra. The deceased agreed.
39 In the recorded interview the appellant gave a detailed account of what he said had happened on 8 December 2002. In his evidence given at the trial the appellant said that what he had said in the interview was true, that his recollection was now not as clear and "my mind doesn't want me to remember".
40 The following account is taken from answers in the appellant's interview and evidence given by other persons who were at Guyra on 8 December 2002.
41 The deceased arrived at the appellant's flat in Guyra at about 4 o'clock in the afternoon. She was accompanied by Mr Orchard and the younger child Ryan. Already present at the flat were the appellant, Cameron, Ms Hunt and a man named Michael Kidd, who worked for the appellant in a Mr Whippy ice cream franchise held by the appellant in Armidale and who had been living in one of the flats in the building owned by the appellant since about October 2002.
42 A suggestion was made (the evidence is conflicting as to who made the suggestion) that all of Mr Kidd, Mr Orchard and Ms Hunt should go to a nearby hotel, leaving the appellant and the deceased alone together, so that they could talk to each other in private. Mr Kidd drove himself and the other two to the hotel in the appellant's 4-wheel drive vehicle.
43 After they had been left alone together the appellant and the deceased discussed various matters. The following questions and answers occurred in the appellant's interview by police:-
"Q 172 (A)……(the deceased said) And if you think I came down here to pick up the boys to do you a favour, you can, don't think I did you any favour. And I said, What do you mean? And she said, I'm heading down to Doug's with the boys from here, in Parkes.
Q 173 Yes?
A. And she said, And if it's, if it's of any interest to you, or something like that, because you've been whining about it for so long, if you must know, Ryan will be sleeping in the bed with Doug and I, or me and Doug, Doug and I, and if Cameron wants to sleep in with us, he can too. And then she repeated, she said, I told you you can't, and that I'm going to beat you. She was drinking a cup of coffee at the time. I walked out of the room……and I walked out, undid the padlock on the gun cabinet and took out a rife.
Q174 Yes, what happened then?
A. When I came back into the lounge, the boys were still in the next paddock. And she'd just gone out into the kitchen. She heard me walk in the lounge, she walked out the kitchen and she was washing her cup. And she said, And by the way, before I win the court case in June, Doug and I will be going, taking the boys and going to England and you'll never see your boys again.
Q175 What happened then?
A. She turned round and started to smile at me. I was….."
44 The appellant said elsewhere in the interview that he had taken a .22 rifle out of the gun cabinet and had put a magazine with bullets in it into the rifle.
45 In evidence given at the trial the appellant said that he had fired, when he was at a distance of about two to three metres from the deceased. In his answer to question 344 in the interview the appellant said:-
"I don't think I even meant to kill her…. I wanted to frighten the shit out of her. I wanted to make her see how much it was hurting me"
46 In evidence at the trial the appellant said:- "I wasn't myself. I feel I must have been crazy. Absolutely crazy." He had not planned to shoot the deceased.
47 After shooting the deceased, the appellant collected the two children from where they had been playing in another flat. The appellant made a telephone call to an adult child by a previous de facto relationship who lived in Sydney, saying that he was bringing the children to Sydney.
48 The appellant also telephoned Mr Kidd at the hotel and asked him to bring back the 4-wheel drive vehicle, so that the appellant could detach a child's car seat from the vehicle. Mr Kidd drove himself, Mr Orchard and Ms Hunt back to the block of flats. The appellant looked in the back of the vehicle but there was no child's car seat there. The child's car seat the appellant was looking for had in fact been placed by the deceased in the vehicle in which she had driven to Guyra. While the three other persons were outside the block of flats, the appellant told them that "things were going well with Vivien" at a time when the deceased was already dead. Mr Kidd, Mr Orchard and Ms Hunt then returned to the hotel.
49 Each of Mr Orchard and Ms Hunt, but not Mr Kidd, gave evidence at the trial that, while they were back at the flats on this occasion, they saw the deceased on the verandah of the appellant's flat, although, according to the account given by the appellant in the police interview and in evidence given at the trial, she was already dead.
50 The appellant left Guyra, travelling to Sydney with the two children in the vehicle which the deceased had driven to Guyra. When he had reached only as far as Black Mountain, a few kilometres from Guyra, he telephoned Ms Hunt at the hotel and told her that Mr Kidd should drive Mr Orchard and Ms Hunt back to Glen Innes and then, instead of returning to Guyra, Mr Kidd should go directly to work at Armidale the following day.
51 In accordance with this direction given by the appellant, Mr Kidd, Mr Orchard and Ms Hunt headed towards Glen Innes. After they had travelled some distance, Ms Hunt realised that she had left her handbag in the appellant's flat and the trio returned to Guyra.
52 Mr Kidd entered the appellant's flat and discovered the dead body of the deceased lying on the kitchen floor with a wound to the back of the head. Mr Kidd and Mr Orchard went to a police station and reported the death of the deceased.
53 The appellant continued driving to Sydney with the two children. He arrived at the house of a daughter by a previous marriage very early in the morning of Monday 9 December 2002. Later that morning he contacted a solicitor. He also telephoned a friend in New Zealand and spoke to the friend's wife, whose name is Shirley De Goldie. In an answer in the interview the appellant said:-
"I said, Shirley, there's been some trouble and she said 'You didn't, Barry?' and I said 'Shirley, I took her out of the picture'".
54 Later on 9 December 2002 the appellant participated in a long recorded interview by police in which he made many admissions.
55 As already stated earlier in this judgment, three psychiatrists gave evidence, two in the defence case and one in the Crown case in reply. It is unnecessary to refer to this evidence in much detail.
56 Dr Skinner gave evidence that she was of the opinion that as at 8 December 2002 the appellant was suffering from a major depressive illness, which would have been aggravated by his respiratory illness. The incident at Ben Lomond might have caused a deterioration in his mental state. Dr Skinner considered that as at 8 December 2002 the appellant's capacity to control himself and to make rational decisions would have been impaired by his mental state.
57 In cross-examination Dr Skinner said that, at the time she formed her opinions, she had not been aware of any threats made by the appellant against the deceased and she agreed that a prior history of violence or threats of violence by the appellant against the deceased would cause her to change her opinion.
58 Dr Allnutt gave evidence that he had formed the opinion that as at 8 December 2002 the appellant manifested symptoms of a depressive disorder and an acute stress disorder and was also physically unwell and experiencing symptoms of dissociation. Dr Allnutt was further of the opinion that these conditions had impacted on the appellant's capacity to judge and control his actions.
59 In cross-examination Dr Allnutt agreed that the information available to him, at the time he formed his opinions, did not include information about a threat to kill the deceased in a way similar to the way in which she had been killed but asserted that such information would not cause him to change his opinions.
60 Dr Delaforce gave evidence that he was of the opinion that as at 8 December 2002 the appellant had an underlying condition of a major depressive disorder and an adjustment disorder and that both disorders would qualify as being an underlying condition causing an abnormality of mind. However, he did not believe that this underlying condition had impaired the appellant's capacity to understand events, to judge his actions as right or wrong or to control himself.