Goodridge v R

ecision: 2012-10-03 00:00:00 Before: Adamson J File Number(s): 2009/38556

Judgment 1HOEBEN CJ at CL: Offence and sentence The appellant was charged with the murder of Carmel George. On 21 March 2011 Rothman J found him unfit to be tried on the charge of murder and referred him to the Mental Health Review Tribunal under the provisions of the Mental Health (Forensic Provisions) Act 1990. 2By determination on 26 July 2011 the Tribunal determined that the appellant would not be fit to be tried during the period of 12 months after the finding of unfitness. 3On 16 April 2012 the appellant was arraigned on an indictment charging that between 13 and 17 May 2009 at Moss Vale he did murder Ms George, contrary to s18(1)(a) Crimes Act 1900. The appellant was taken by s21(3)(a) of the Mental Health (Forensic Provisions) Act to have pleaded not guilty to the offence charged. 4The matter proceeded before Adamson J, without a jury, on 16, 17 and 19 April 2012. No witnesses were called by either party. The Crown brief of evidence was tendered without objection, along with psychiatric reports from Dr Westmore (retained by the Crown) and Dr Neilssen (retained by the appellant) and a report by a psychologist, Dr Lennings. 5On 20 April 2012 Adamson J returned a verdict that on the limited evidence available the appellant had committed the offence of murder (R v Goodridge [2012] NSWSC 378). On 21 September 2012 her Honour nominated a limiting term of 18 years (R v Goodridge (No 2) [2012] NSWSC 1180). 6The appellant has appealed under s5(1)(b) of the Criminal Appeal Act 1912 against her Honour's verdict. Under s22(3)(c) of the Mental Health (Forensic Provisions) Act 1990, the verdict given at a special hearing is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings. The appellant has also sought leave to appeal against the limiting term imposed by her Honour. 7The appellant relies upon the following grounds of appeal: Conviction Ground 1: Her Honour's verdict was unreasonable and cannot be supported by the evidence. Ground 2: Her Honour erred in not directing herself that she should not reject unanimous expert evidence unless it was contradicted by other persuasive evidence. Ground 3: There was a miscarriage of justice because her Honour did not advise the parties that her Honour intended to reject the unanimous evidence of the expert witnesses and invite the parties to provide the witnesses with further material and call them to give further evidence. Sentence Ground 4: The limiting term her Honour imposed on the appellant is manifestly excessive. Evidence 8The appellant was born in March 1957. He was 52 at the time of the offence and is now 57. He had a long term history of alcohol and other substance abuse. He lived in Moss Vale and had not worked since 2006. 9He owned a dog called "Zone" whom he obtained from the pound in 2001. He used to take Zone for a walk at about 4am every morning around the Moss Vale town centre. On his way he would drink the dregs from wine bottles left out for him by a sympathetic restauranter. He would then go to the Jemmy Moss Hotel, which opened at 8am, where he would drink schooners of VB whenever he could afford to. 10In May 2009 the appellant was evicted from his Housing Commission flat. For a few nights he stayed in a unit in which Paul Knight, a friend of his, resided. On 9 May 2009, Ms George who was then 39, left a rehabilitation centre for drug addicted persons and alcoholics where she had been residing and went to stay at Mr Knight's unit. 11On 10 May 2009 John Parry, a local barber, heard the accused yell "Come on dog I'm going to go and lie on the road." Later Mr Parry saw the appellant lying in the middle of the road surrounded by people. He had been hit by a car at low speed, suffering abrasions to his nose and forehead, a black eye and an injury to his leg which caused him to limp. Ms George approached Mr Parry and told him that she intended to sit with the accused all night in hospital. She tried unsuccessfully to persuade Mr Parry to buy her a bottle of vodka because she said that she was coming down off heroin. 12On 12 May 2009 the appellant resumed his usual practice of drinking at the Jemmy Moss Hotel at 8am. He was observed drinking with Ms George that day. She purchased alcohol for him to consume at the hotel. When the barmaid refused to serve Ms George because she was intoxicated, she purchased a bottle of vodka, which was her preferred drink, to take away. 13At 12.30pm on 12 May 2009 Ms George bought another bottle of vodka from the BWS (Beer Wine & Spirits) outlet at Moss Vale. She returned at 2.30pm for yet another bottle of vodka. She gave an explanation to the manager of the shop that she was shaken up because she had been looking after the appellant in hospital after he had been hit by a car. 14On Wednesday, 13 May 2009 the appellant and Ms George were again seen drinking at the Jemmy Moss. That day the appellant went to the bank to collect his fortnightly disability pension. He proceeded to use it to purchase two casks of Stanley chardonnay, some of which he then consumed. Ms George returned to the BWS bottle shop at Moss Vale at 10.30am and purchased a bottle of vodka. 15Later that day, Mr Knight and the appellant drank considerable amounts of alcohol at Mr Knight's unit. Ms George was drinking vodka at the time. The appellant and Mr Knight then went to the Moss Vale Hotel with a view to engaging in a fight. When they returned to Mr Knight's unit later that evening, they drank the rest of a cask of wine with Ms George. That night Mr Knight and Ms George shared a bed, as they had previously, and the appellant slept with Zone. 16On 14 May 2009 Mr Knight told the appellant that he could no longer stay at his unit because the owners objected. The appellant and Ms George told Mr Knight that they intended to stay at the railway barracks. That building was a disused accommodation block within the boundary of the Moss Vale Railway Station. It comprised a single storey, brick structure with a metal roof. It was used by squatters and itinerants and was in a state of disrepair with several windows smashed. 17On that morning the appellant went with Ms George to the Jemmy Moss Hotel for a drink. He was wearing a bright red jumper. At about 11am Ms George went to the BWS bottle shop and purchased the cheapest bottle of wine available for $5. At about this time the appellant moved his possessions with the aid of a shopping trolley to room 6 at the railway barracks. 18That night (14 May 2009) Ms George and the appellant stayed at the railway barracks. During the course of the evening and into the night, they continued to consume substantial quantities of alcohol. At some time before the appellant left the barracks on Friday morning, he made sexual advances to Ms George which were unwelcome. He became angry and violent. He wanted to hurt her and to "teach her a lesson". On several occasions he pushed Ms George against the wall of room 6 with such force that she fell to the ground. At some stage, he repeatedly forced his right arm into her vagina and rectum, causing the internal injuries and profuse bleeding from which she eventually died. 19On Friday, 15 May 2009 the appellant awoke and said that he was horrified by the pool of blood which surrounded Ms George's body. He restrained Zone from sniffing or licking the blood and took him for a walk. 20The appellant went to the Jemmy Moss Hotel at about 9am. The bar attendant noticed him entering through the back door, which was unusual since he usually came in through the side door near where he tied up Zone outside. When the appellant came into the bar, the attendant could see that his entire face and the right side of his upper body were covered in dried blood. There was dried blood on his jumper and the shirt he wore underneath. 21The attendant did not observe any injuries that would account for the blood. She said: "Fuck Michael, what's happened to you? It looks like you have murdered somebody. Get to the toilets and wash your face. I'm not going to serve you looking like that". The appellant's face was blank. He went off to the toilets and then returned to drink a schooner of VB. The attendant noticed that his black jeans were on inside out. 22Later that morning, another bar attendant refused to serve him, not because she regarded him as drunk but because he was "such a mess". Shortly afterwards, the appellant untied Zone, left the Jemmy Moss and did not return. 23Later that Friday morning, the appellant went to the Moss Vale branch of the Commonwealth Bank and withdrew $100. The teller noted that his clothes and face were covered in blood. On several occasions on Friday, 15 May 2009 the appellant returned to the railway barracks and saw Ms George's body lying on the floor in a pool of blood. He partly covered her with sheets and tried to wipe up some of the blood in an ineffectual way. He neither disclosed what had happened nor sought help. At some stage he touched Ms George's body and found it to be cold. 24On Saturday, 16 May 2009 Sharon Millbank, a mutual friend of the appellant and Ms George, was in Moss Vale on a visit. At about 11am she was walking past the Central Hotel when she recognised Zone. She went inside to renew her acquaintance with the appellant who purchased a schooner of VB for her. 25When John Marnach, a local, arrived at the Central Hotel at 12.15pm on Saturday, he noticed that the appellant had changed his clothing since he saw him at the Jemmy Moss the previous morning. The appellant looked clean and was wearing white pants. 26Ms Millbank, who wanted to get in touch with Ms George, asked the appellant whether she was still in rehabilitation for her alcohol problem. At first he said that he had not seen her but after some time, said that she was at the railway barracks "covered in blood". When Ms Millbank asked what had happened, the appellant said that he thought she might have been raped a couple of days earlier. Ms Millbank went with the appellant to room 6 of the barracks and found Ms George's body on the floor in a pool of blood. Ms Millbank then telephoned triple 0 and handed the telephone to the appellant so that he could guide ambulance officers to the location. 27While the ambulance officers were on the telephone, the appellant confirmed that Ms George was dead. When the ambulance officers arrived, they found Ms George's body lying on the floor of room 6 in a pool of blood. She was naked from the waist down, with only a sheet or blanket to cover her. She was dressed in a bra that was pulled up to her neck area, a blue and white striped T-shirt, also pulled up, a black jersey and brown socks. Her head was partly covered with the mattress. Her eyes were still open and her head was tilted back. Blood was smeared on the wall beside her. There was also a palm print on the wall in blood. Analysis later established the palm print to be that of the appellant and the blood to be that of Ms George. 28The coronial evidence of the direct cause of Ms George's death was exsanguination due to vaginal and rectal injuries. Acute alcohol intoxication was identified as a significant condition contributing to her death since it could impair the metabolic, haemodynamic and inflammatory response to haemorrhagic shock. An analysis of Ms George's blood alcohol content recorded 0.373 g/100mL. 29The evidence established that the appellant inflicted the injuries which caused Ms George's death. Detective Sergeant Moon, who investigated the scene and physical evidence, concluded that the blood patterns on the accused's sleeve were consistent with the accused using his right arm to inflict the injuries which Ms George had sustained. Blood staining on a white shirt apparently worn by the accused tended to establish that there was a subsequent sexual assault after the initial injuries had been inflicted. 30The appellant was asked some questions by Senior Constable de Haan who recorded that the appellant said that he had seen Keith Doherty in the building the previous night; that he thought Ms George had been raped or otherwise injured due to the amount of blood; and that he had drunk a lot of wine and vodka in the past week. The appellant denied that he had any sexual relationship with Ms George. 31The appellant was interviewed and the interviews were electronically recorded. The first ERISP commenced at 11.16pm on Saturday 16 May 2009 and lasted about 3 hours. The second commenced at 6.11am on Sunday 17 May and lasted 2 hours. 32In the first ERISP, the appellant: (a) Denied that he had had sexual relations with Ms George; (b) Admitted that he had kissed her "a while back"; (c) Sought to implicate Mr Doherty, who had had a former association with Ms George, by suggesting that he had come to the railway barracks while Ms George was there; (d) Denied that he had touched Ms George; (e) Said that he tried to wipe away the blood because he was fearful that he would get the blame for doing it; (f) Said that it was "wonderful" to have Ms George stay with him at the barracks because she understood him and was a "pretty good friend of mine"; (g) Said that he tried to clean up the blood around her body because he "hate[s] the sight of blood"; and (h) Said that he did not call anyone or report her death because of "fear". 33When asked in the first ERISP what he thought had happened to Ms George he said: "I think someone got in there and took her life, I don't know, that's what I was thinking, I can't, it wouldn't be me, I wouldn't do it, I wouldn't even have enough guts in me to kill anyone." 34The following exchange occurred about his drinking habits: "Q456 Would you drink every day? A If I've got it to drink I do drink every day, but if I haven't got it I don't ... So I can take it or leave it." 35In the course of the second ERISP the appellant admitted that he had had sex with Ms George in the last three days. He also said: "I got very cranky with her and pushed her, and she fell down on the floor and hit her head, not the mattress, actually, she just hit her head. I picked her back up, and then I threw her down again." 36When asked to explain how Ms George made him angry, he said: ""I don't know, she started yellin' and carryin' on like she normally used to... it just got to me and I freaked out, and pushed her hard... [She was yelling] Get away from me, or somethin'. The more she was yelling, the more angrier I got, and I pushed her." 37When asked why Ms George was yelling for him to get away, he said: ""She probably thought I was tryin' to hurt her, but then she... [I] just got goin' and give her a good hard push." He admitted that he had pushed her very hard. He admitted that he wanted to hurt her. When asked what he was trying to do, he said: "Most probably tryin' to teach her a lesson or something." 38The appellant told the police that she screamed that she did not want to have anything to do with him which made him "cranky" and he pushed her again. He said that he was "hurt" by this because he "liked her a lot". 39The appellant admitted that he pushed her to the floor on several occasions. He said that they were drinking throughout Thursday night. On one such occasion, Ms George asked him why he pushed her. The appellant told police that he then "ripped her clothes off" because of the "mood I was in". The appellant then decided that he wanted to have intercourse with Ms George. He told police that when she resisted he raped her. 40The appellant told police that he then went to sleep. When he woke on Friday morning to take Zone for a walk, Ms George was dead and lying in a pool of blood. He tried to clean up the blood "to get rid of the evidence" because he knew that he would "get in a lot of trouble". 41At no stage during the ERISPs did the appellant address the injuries sustained to Ms George's vagina or rectum. The judgment 42Her Honour made the following finding in relation to intent: "49 Although the accused was intoxicated by alcohol at the time of the conduct that caused the death of Ms George, I am satisfied that he was capable of intending, and did intend, to cause her grievous bodily harm. Although the admissions he made in the second ERISP about his intention to hurt her related to his acts of pushing her to the floor when she was trying to resist his advances and yelling at him to keep away from her, his conduct in pushing her was part of the whole course of conduct in which he assaulted her because she would not comply with his wishes and would not behave as he wished her to. I am satisfied that he appreciated at the time of these events that his acts towards her would cause her really serious injury and that he intended to do so. There is, in my view, no basis to distinguish between his acts of pushing her to the floor, which he has admitted were done to hurt her and "teach her a lesson" and his acts of pushing his right arm into her vagina and rectum which caused her to bleed to death." 43Her Honour recognised that this finding was relatively uncontroversial and that the real issue before her was the consideration of "substantial impairment by abnormality of mind as a partial defence to murder". 44The resolution of this question is determined by s23A of the Crimes Act 1900 (the Act). That section provides: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind." 45Section 428A of the Act relevantly defines "self-induced intoxication" as "any intoxication except intoxication that is involuntary". The onus of proving s23A is on the accused but it must be proved only on the balance of probabilities. 46Her Honour posed the relevant question as follows: "56 The first matter which the accused must establish is that at the time he pushed his right arm into the vagina and rectum of Ms George, his capacity either to understand events or to judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from a pre-existing mental or physiological condition which is not transitory. By reason of s 23A(3) of the Act I am obliged to disregard self-induced intoxication. 57 This question invites a comparison between the impairment caused by the accused's underlying condition, alcohol-related brain damage, and the impairment caused by intoxication from alcohol, to the effects of which the accused was more susceptible, having regard to the underlying condition. If the impairment of his relevant capacity was substantial within the meaning of s 23A of the Act, even if the super-imposed intoxication caused by alcohol is disregarded, then he can establish substantial impairment within s 23A(1)(a). However, if the impairment in his relevant capacity from his underlying condition was not substantial unless he was intoxicated, then he cannot establish the partial defence." 47Her Honour sought to answer the question which she posed by reference to four categories of evidence: the evidence of lay observers, the ERISPs, the likely affectation of the appellant by alcohol and the opinion of the two psychiatrists and the psychologist. 48Her Honour regarded the evidence of lay observers as important because they were able to describe the behaviour of the appellant over a period of time and in various stages of intoxication. Most particularly, they were able to describe the effect on his behaviour of the ingestion of alcohol. Mr Pollard (the baker) said the appellant was "usually a nice man but that he could get violent and those instances of violence appeared to be related to the consumption of alcohol or drugs". Mr Knight's evidence was that the appellant had "been drinking a lot more lately and getting aggressive". Ms Baxter, a bar attendant, said that she had never seen the appellant "misbehave or carry on in the hotel at any time". Mr Marnach said that he had never known the appellant to be violent, although he would "yell loudly". 49Ms Daley, the bottle shop manager at the Jemmy Moss Hotel, said that she had seen the appellant in town "carrying on, yelling and screaming at no-one" but that this had always been when he was intoxicated and that he was usually quiet when he was in the hotel. Mr Acton, another patron of the Jemmy Moss, said that he had never actually seen the appellant sober and described him as an alcoholic. 50Mr Parry said of the appellant: "I have never seen him in the past being physically violent except being a bit abusive with his language... Michael went off the rails in the last six or seven months. He became so abusive to others. The more he drank the worse he got, whereas before he was different, hardly abusive, just language." 51Mr McVie, the manager of the BWS bottle shop, said that the appellant had a bad temper and: " ... would kick the dog and start being abusive to us for not serving him because he was too intoxicated which had happened several times." 52On the basis of that evidence, her Honour concluded that: ""68 ... the accused's conduct was affected by alcohol which caused him at times to be aggressive and loud. Because of his alcoholism, he is likely to have had some base level of alcohol in his blood at any given time. His behaviour was more controlled when this level was lower. He became more erratic and aggressive the more he drank." 53As a guide to the level of intoxication of the appellant at the time he killed Ms George, her Honour had regard to the blood alcohol concentration of 0.373 percent of Ms George. She concluded: " ... having regard to their similar statures and the fact that she and the accused had been drinking together, provides some broad indication of his state of intoxication." 54In relation to the expert evidence from Drs Nielssen, Westmore and Lennings her Honour noted that they had not been provided with the ERISPs, the statements of the lay witnesses or the autopsy report. In particular she noted that Dr Westmore had been provided with the Crown case statement and some extracts from the ERISPs but this material was purely documentary "and incapable of conveying the accused's demeanour which was apparent when viewing the films of the ERISPs." (Judgment [70]). The Crown Case Statement was not provided to the other two experts. 55The appellant was interviewed by Dr Nielssen, at the request of his solicitors, by audiovisual link from gaol on 3 November 2009 and 5 August 2010. Her Honour made the following observations concerning Dr Nielssen's assessment. 56She noted that he had obtained a history of a head injury in gaol in January 2010 which "might have resulted in further damage in intellectual function". He had diagnosed two psychiatric conditions: alcohol dependence and abuse disorder and alcohol-related brain damage. Her Honour noted this conclusion in the 2010 report: "The history suggests Mr Goodridge was drinking heavily around the time of the offence and was probably affected by a large quantity of alcohol at the time of the offence itself." 57Her Honour recorded the following opinion of Dr Nielssen: "Mr Goodridge's alcohol related brain damage is an underlying condition within the meaning of section 23A of the Crimes Act. His condition would affect his perception of any events, his ability to judge right from wrong and especially his capacity to control his actions. His underlying condition would result in an increased susceptibility to the effects of alcohol." 58By reference to that quotation, her Honour said: "75 This opinion does not assist in determining the principal issue: whether the impairment in the accused's relevant capacity as a result of the underlying condition was substantial if the effects of self-induced intoxication from alcohol are disregarded." 59Following an interview on 16 March 2012 Dr Nielssen prepared a report dated 23 March 2012. He commented that the appellant's mental state had deteriorated since the previous interview. He thought this deterioration might be attributable to the assault which occurred in prison in January 2010. Dr Nielssen made a new diagnosis of dementia. 60Her Honour recorded the following opinion of Dr Nielssen in his 23 March 2012 report: "I confirm the opinion expressed in the previous report about the availability of the defence of substantial impairment of abnormality of mind, based on the assumption that Mr Goodridge had significant degree of alcohol related brain damage at the time of the offence. Brain damage is an underlying condition within the meaning of Section 23 A of the Crimes Act. His underlying condition would give rise to an abnormality of mind which would have a significant effect on his perception of any events and his ability to judge right from wrong, even in the absence of intoxication with alcohol. However, because of his underlying brain damage, aggressive behaviour associated with Mr Goodridge's consumption of alcohol is due to the effect of alcohol on an abnormal brain, and is a form of pathological intoxication, rather than a voluntary form of intoxication in which the effects on behaviour can be anticipated. Intoxication with alcohol on a background of brain damage is likely to have resulted in significant impairment in the perception of events, capacity to judge right from wrong and the capacity to exercise self-control." (Emphasis added by her Honour.) 61By reference to that quotation her Honour said: "79 I accept Dr Nielssen's opinion in the second underlined passage. However, it does not follow from the fact that the alcohol consumed by the accused had a greater effect on his capacity than it would have done had it not been for the underlying brain damage that he was substantially impaired by an abnormality of mind arising from the underlying condition when he committed the offence if the substantial impairment arose from the intoxication, rather than the underlying condition. 80 Dr Nielssen uses the term "pathological intoxication" which, without further explanation could be taken to mean that the accused's intoxication was involuntary, and therefore not self-induced. However, I do not consider that it can properly be understood that way. As Dr Westmore explained it in his most recent report, referred to below, it is a term which describes an abnormal response following the consumption of alcohol. As long as the consumption of alcohol is not involuntary, its effects must be disregarded by reason of s 428A of the Act." 62Dr Westmore examined the appellant on behalf of the DPP, on 9 March 2011, approximately 21 months after the offence. His conclusion in relation to s23A was: "I would agree with Dr Nielssen when he wrote that Mr Goodridge has an underlying condition, specifically the acquired brain damage (alcohol and possibly head injuries). I note however that he has not, by his own account, displayed any aggressive behaviour since being placed into custody and that would suggest that the underlying condition itself is not the primary source of his aggression. He acknowledges that sometimes he becomes aggressive with alcohol and he acknowledges that in relation to the victim he had been violent after drinking. That would indicate that alcohol is the critical factor in his aggressive behaviour and the alleged aggressive behaviour towards the deceased." 63Dr Westmore prepared a further report, dated 29 March 2012, where he said: "Under the heading "Presenting Complaint", on page 2 of my report, I described his account of the incident and I note, in a Record of Interview, he told the police that he had been angry because he could not find his alcohol. He said that he did not remember saying that, but said he probably had said that. In relation to why he had been aggressive towards the woman, he said he did not know why, but "I just had enough of her. She was driving me nuts, I just had enough of her". He had memory difficulties relating to the incident and it is probable he had consumed alcohol on the day. (Emphasis added by her Honour.) On the balance of probability, I would accept that this man suffers from an underlying condition, specifically a disease of the brain, which has its aetiology in a past history of head injuries and alcohol abuse and the disease of the brain would represent an abnormality of mind which, at the relevant time, is likely to have impaired Mr Goodridge's capacity to control himself in relation to the deceased. To that extent he would be eligible to raise the defence of substantial impairment to the charge of murder which, I understand, is now before the court." 64By reference to that quotation, her Honour said: "84 The sentence emphasised in the passage extracted above is a serious understatement and indicates that Dr Westmore was unaware of the extent of the drinking binge that had started no later than Wednesday 13 May 2009 and continued relatively unabated until at least the time of the offence. Although Dr Westmore opines that the accused "would be eligible to raise the defence of substantial impairment" I do not read his opinion as necessarily supporting the proposition that the undoubted impairment from the underlying condition was substantial at the relevant time. Furthermore, the weight to be given to his opinion is substantially undermined by his insufficient apprehension of the accused's level of intoxication at the relevant time." 65Her Honour set out the following conclusion from Dr Westmore's report which was designed to answer Dr Nielssen's further report of 23 March 2012: "In this particular case, Mr Goodridge has established organic brain damage, which would make him more vulnerable to alcohol and to provocation. Mr Goodridge is likely to become behaviourally disturbed as a result of his underlying brain damage, even in the absence of alcohol consumption. I note that he has not demonstrated behavioural problems since being placed into custody and that raises the probable importance of provocation at the time of the incident. I understand that the deceased may have concealed, hidden or prevented Mr Goodridge accessing alcohol leading up to the events now before the court and that could well have been sufficient provocation, even in the absence of alcohol, to result in Mr Goodridge acting aggressively. It is probable that he has not experienced similar levels of provocation in custody, hence no similar problems have been identified since he has been in prison." (Emphasis added by her Honour.) 66In relation to that quote from Dr Westmore, her Honour said: "86 ... Although I accept that Dr Westmore considers it was possible the accused could have reacted aggressively to provocation, even if not intoxicated, by reason of the underlying condition, I do not understand his opinion to go further than that. 87 I read Dr Westmore's evidence as supporting the proposition that the accused's relevant capacity was impaired by an underlying condition and that his capacity could become substantially impaired when he consumed alcohol. I do not read it as amounting to an opinion that the accused's relevant capacity was necessarily substantially impaired if the effects of ingestion of alcohol at the time are disregarded." 67The evidence of Dr Lennings did not take these issues any further. 68Her Honour then set out her assessment of the evidence of the two psychiatrists. She accepted that there was some support in the opinions of both Dr Westmore and Dr Nielssen to the effect that the appellant's capacity was substantially impaired by an underlying condition, even if the effects of his intoxication with alcohol were disregarded. She noted that Dr Westmore's opinion was more qualified than that of Dr Nielssen. 69With respect to the appellant's reaction to provocation, her Honour said: "91 Both Dr Westmore and Dr Nielssen appear to consider that it is possible that the accused would have responded "aggressively" to provocation in the absence of alcohol. However, it is one thing to respond aggressively because he did not get what he wanted (more alcohol or a willing response to his sexual advances) but it is quite another to do what the accused did which resulted in the death of Ms George. 92 The issue raised by Dr Westmore and considered by Dr Nielssen as to the "probable importance of provocation at the time of the incident" is vexed. There are two relevant distinctions between the circumstances at the time of the offence and his circumstances in gaol." 70Her Honour identified the two distinctions which were absent from gaol as (1) the presence of the deceased and the availability of alcohol and (2) at the time of the offence, the appellant was grossly intoxicated. Her Honour concluded: "95 Although I accept that the accused has not been subject to the same provocations in gaol as those to which he was subject at the time of the offence, nonetheless I consider that had the accused's relevant capacity been substantially impaired as a result of his underlying condition, as distinct from intoxication, it is likely that his behaviour in prison would have manifest some of the features which he displayed at the time of the offence. That his behaviour has not is, in my view, supportive of the proposition that his impairment at the time of the offence was made substantial by his self-induced intoxication. 96 However, even if the psychiatric evidence is taken at its highest for the accused, I would still not be satisfied that the defence under s 23A(1)(a) of the Act had been made out in part because of what I regard as the deficient foundation of the expert opinions." 71Her Honour then set out what she regarded as that "deficient foundation of the expert opinion". "98 Neither of the psychiatrists reviewed the ERISPs, had access to the statements tendered by the Crown which form the basis for the factual narrative set out above and the summary of the accused's general behaviour set out above, or was aware of Ms George's blood alcohol concentration as revealed by the autopsy report. The ERISPs and the statements are, in my view, the most reliable pieces of evidence of the accused's relevant capacity and the extent to which it was impaired by his underlying condition proximate to the time of the acts that caused Ms George's death, if one disregarded the effects of intoxication. 99 For example, Dr Westmore seems to have been under what I consider to be a misapprehension: that a significant trigger for the accused conduct was that Ms George may have concealed, hidden or prevented the accused from accessing alcohol. It emerges from the second ERISP that the accused put the wine cask under the sink himself, but had forgotten where he had put it. I consider that the ERISPs taken together are more consistent with the principal trigger for the accused's violence being that Ms George did not want to have sex with him and refused his advances. He then became angry and violated her. Whether he was able to penetrate her with his penis is a moot point, although he said that he did so on more than one occasion, but he undoubtedly did so with his right arm, causing the injuries which proved to be fatal. 100 This may be regarded as a matter of detail as to the particular provocation which inclined the accused to act as he did. However, of greater importance, the ERISPs, viewed as a whole, display the extent to which the accused was capable of understanding events, judging whether his actions were right or wrong and, to a lesser extent, his capacity to control himself. The autopsy report shows, in broad terms, the probable level of the accused's intoxication at the relevant time. 101 In my view, the ERISPs show the accused's capacity to understand events and judge whether his actions were right or wrong to be impaired by his underlying condition, but not substantially so. The lay witness statements show that when the accused was relatively sober he was reasonably capable of controlling himself, but that when he was intoxicated by alcohol, his capacity was substantially impaired. The autopsy report provides some circumstantial evidence of his state of intoxication, which was considerable. 102 For the foregoing reasons, I am not satisfied that the accused's relevant capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition at the relevant time. I accept that his capacity at the relevant time to understand events, judge whether his actions were right or wrong or to control himself was, to some extent, impaired. However, in my view, his substantial impairment came from his consumption of excessive quantities of alcohol which I find to have been not involuntary, and therefore self-induced, and, by reason of s 23A(3) of the Act, to be disregarded." 72In relation to the second limb of s23A(1) of the Act her Honour said: "107 Because of the special nature of this hearing, which is conducted, in the absence of an election, by judge alone (s 21A(1) of the Mental Health (Forensic Provisions) Act), I must decide this question, bearing in mind that manslaughter is regarded as a less serious crime than murder and that the community places less blame and condemnation upon a person guilty of manslaughter than of murder. In this case there is no jury to bring to bear its collective wisdom or sense of justice. In making this decision, I must not, and do not, take into account any of the opinion evidence of the psychiatrists or psychologist that could otherwise bear on the question, since such evidence is inadmissible on this question: s 23A(2). 108 The accused has not discharged the onus of persuading me that any lessening of the blame and condemnation upon him is warranted. Ms George appears to have been staying at the barracks with the accused, rather than at Mr Knight's unit, because she was concerned about the accused's wellbeing following his having been hit by a car some days earlier. The acts of the accused that resulted in her death were horrendously violent and savage. His acts involved a substantial and determined use of force, which both violated and denigrated her in a brutal and degrading way. 109 The admissions made by the accused on the ERISPs set out above, and in particular that he wanted to hurt her and "teach her a lesson" for not responding positively to his advances, cast his behaviour in a particularly abhorrent light. 110 Even had I otherwise found the partial defence of substantial impairment to have been made out I would not have considered that it would be such as to warrant the accused's liability for murder being reduced to manslaughter." Submissions Ground 1: Her Honour's verdict was unreasonable and cannot be supported by the evidence. 73The appellant submitted that contrary to the finding of the trial judge there was unanimity between the psychiatrists to the effect that he had made out the partial defence of substantial impairment. The appellant submitted that by interpreting the psychiatric evidence in the way in which she did, her Honour had misread the effect of what the psychiatrists were saying. The appellant submitted that when the psychiatrists said that the partial defence was open to him or was available to him, they in fact meant that the first limb of s23A(1) had been made out. By expressing themselves in that way, they were making sure that they did not appear to be expressing an opinion as to the second limb of s23A(1). 74The appellant submitted that this misunderstanding of the effect of the psychiatric evidence was evident in pars [78] and [80] of the judgment. The appellant submitted that there was no basis for her Honour's qualification of Dr Nielssen's opinion by using the introductory words "At its highest ... " in [78]. The appellant submitted that to the extent that her Honour meant that there was some doubt about Dr Nielssen's conclusion or that this conclusion was contradicted by other parts of his reports, her Honour was in error. He submitted that the meaning of the first sentence of that part of Dr Nielssen's report extracted at [77] was clear and unambiguous. 75The appellant submitted that her Honour erred in not taking into account his intoxication on the basis that it was "involuntary". He submitted that a decision of a severely brain damaged individual to drink alcohol was not truly a voluntary decision. 76The appellant relied upon the authority of such cases as R v Maxwell [1998] 217 ALR 452 where the NSWCCA (Spigelman CJ, Sperling and Hidden JJ) said that while a jury is not bound by what the medical witnesses say, they must act on the evidence and if there are no facts and circumstances before them which throw doubt on the medical evidence, then that is all they are left with and the jury must accept it. The appellant also relied upon the observations of Allsop P (with whom Price J agreed) in Devaney v R [2012] NSWCCA 285 at [88]. 77The appellant submitted that the other three bases relied upon by her Honour for not accepting the psychiatric evidence were flawed. By reference to the lay witnesses, the appellant submitted that this evidence did not establish an increased level of aggression on his part in the months leading up to the killing and that even if it did, there was insufficient evidence to connect that increase in aggression to his consumption of alcohol. The appellant submitted that any increase in aggression could be explained by a deterioration in his underlying mental state. 78The appellant submitted that of the eight witnesses to whom her Honour had referred, only four could be regarded as connecting his aggression with drinking (Messrs Knight, Parry and McVie and Ms Daley). The appellant submitted that it would be difficult for them as lay persons to determine whether or not alcohol was the cause of his aggression. 79The appellant submitted that apart from kicking the dog, there was no evidence of any actual violence associated with his aggression. He submitted that the most telling criticism of her Honour's analysis was the contrast between his long history of heavy drinking and his relatively minor criminal history which did not record any significant acts of violence except for damage to property which occurred in 1982 and 1997. 80With respect to the ERISPs the appellant submitted that the weight which her Honour gave to her own analysis of them was unjustified. He submitted that it was not unusual for intellectually disabled persons to become practised at feigning an understanding of questions. The appellant submitted that in this case it was clear from the beginning of each ERISP that the appellant did not understand the caution which was administered to him. The appellant submitted that this was apparent, not only from his own words but from the reaction of the interrogating police officer. 81The appellant submitted that his answers in the first, and particularly the second ERISP, would inevitably lead to the conclusion that his recollection of the events leading up to the killing was chaotic, patchy and incomplete. The appellant submitted that completely inconsistent answers were given within minutes of each other. On occasions, admissions were made but were contradicted immediately afterwards. The appellant submitted that the ERISPs confirmed, rather than undermined, the conclusions of the psychiatrists as to the availability of the partial defence. 82The appellant submitted that the autopsy report for Ms George which showed that her blood alcohol concentration was .373 percent was an unreliable indicator of his level of intoxication at the time of the killing. The appellant submitted that her Honour's conclusion on this issue depended upon a number of assumptions which had not been made out: that the appellant and Ms George were drinking at about the same rate, that the appellant and Ms George were drinking the same strength alcohol, that the appellant and Ms George had about the same tolerance for alcohol. The appellant submitted that the available evidence was contrary to those assumptions, i.e. there was no comparison of their rate of drinking, the appellant preferred wine whereas Ms George drank vodka and although both were heavy drinkers, the appellant had been drinking heavily for a longer time than Ms George, i.e. 40 years compared to 25 years. 83In the alternative, the appellant submitted that even if her Honour's conclusion as to his level of intoxication were accepted, there was nothing to suggest that this would have changed the opinions of the psychiatrists. Both were aware that he was an extremely heavy drinker and at least implicitly accepted that he was heavily intoxicated at the time of the killing. The appellant referred to the report of Dr Nielssen of 14 September 2010 at p 9 where Dr Nielssen said: "The history suggests Mr Goodridge was drinking heavily around the time of the offence and was probably affected by a large quantity of alcohol at the time of the offence itself." 84In relation to the second limb of s23A(1) the appellant submitted that once her Honour had concluded that he was not substantially impaired by reason of abnormality of mind, her finding in relation to the second limb, i.e. that his impairment was not so substantial as to warrant liability for murder being reduced to manslaughter, was almost inevitable. The appellant submitted that if the Court concluded that her Honour's conclusion in relation to the first limb of s23A(1) was unreasonable and could not be supported by the evidence, the Court would reach the same conclusion about the second limb of the defence. Consideration 85There was no issue that at time of the killing the appellant had brain damage arising from his past use of alcohol, and possibly from a head injury suffered as a child, and that this was "an underlying condition" for the purposes of the substantial impairment provisions in s23A. There was also evidence that the appellant was heavily intoxicated at the relevant time of the acts causing death. Under s23A(3) of the Act, her Honour was obliged to disregard the effects of the appellant's self-induced intoxication in determining whether substantial impairment had been established by the appellant. Accordingly, the question at the special hearing was whether the appellant's capacity was substantially impaired as a result of the underlying brain damage if the effects of the large quantity of alcohol he consumed were disregarded. 86In determining a ground of appeal which asserts, for the purposes of s6(1) of the Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v R [1994] HCA 63; 181 CLR 487 at 493 and restated in MFA v R [2002] HCA 53; 213 CLR 606. 87The Court is to make an independent assessment of the evidence, both as to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to her Honour to conclude that the appellant was guilty. The central question is whether the Court is satisfied that the appellant committed the offence of murder: Morris v R [1987] HCA 50, 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11] - [14] and [20] - [22]. 88In considering this ground of appeal, it is necessary to bear in mind that the appellant bore the onus of proof at trial on the balance of probabilities, to establish the partial defence of substantial impairment. This is not a case where this Court is exercising its appellate function upon issues where the Crown bore the onus of proof, beyond reasonable doubt, on all issues. Nevertheless, there is no reason in principle why an unreasonable verdict ground cannot apply to a case where the appellant bore the onus of proof at trial on the balance of probabilities(R v Welsh (1996) 90 A Crim R 364 at 373-374). In considering this ground of appeal, the Court ought not consider the evidence piecemeal, but consider the totality of the evidence which was before her Honour. This includes making its own assessment of what was contained in the ERISPs (The Queen v Keenan [2009] HCA 1; 236 CLR 397 at [128], Rasic v R [2009] NSWCCA 202 at [29]). 89That having been said, the observation of Bathurst CJ in Kurdi v R [2011] NSWCCA 179 at [8] as to what should be done to comply with M v R is pertinent: "8 ... it is necessary for the Court to review the whole of the evidence available to the jury. That is not to say that a court of appeal conducts its own trial. The question which it must answer is whether it was open to the jury to reach the verdict which it in fact reached. Further, as was pointed out in M v The Queen supra, the Court must pay full regard to the primacy of the jury as the fact-finding tribunal ..." 90Before examining in more detail the reports of the psychiatrists, it is necessary to consider the appellant's submission to the effect that the appellant's consumption of alcohol should not be regarded as a voluntary form of intoxication. The submission depends upon the observation of Dr Nielssen in his 23 March 2012 report (see [60] here of) where he said: "However, because of his underlying brain damage, aggressive behaviour associated with Mr Goodridge's consumption of alcohol is due to the effect of alcohol on an abnormal brain, and is a form of pathological intoxication, rather than a voluntary form of intoxication in which the effects on behaviour can be anticipated." 91Her Honour effectively answered that submission in pars [79] and [80] of her judgment (see [61] hereof). In addition, there is the evidence of the lay witnesses to the effect that the appellant appeared to choose when and where he consumed alcohol in the months leading up to the killing. While I agree with the appellant that only limited weight can be given to his assertion in the first ERISP that he could "take it or leave it" in relation to alcohol, that statement cannot be ignored. Moreover, it is consistent with the observations of the lay witnesses. 92The provisions of s23A(3) and 428A of the Act need to be kept in mind. Self-induced intoxication is defined to mean any intoxication except intoxication that is involuntary. It would require a significant stretch of the statutory language to interpret that provision so that it encompassed the consumption of alcohol by an alcoholic. It is not, however, necessary to reach a final conclusion on that issue. It is sufficient that the evidence of the lay witnesses, taken with that of the appellant in the first ERISP, together with the concept of "pathological intoxication" as understood by psychiatrists, means that it was well open to her Honour to conclude, as she did at [80], that the appellant's consumption of alcohol was not involuntary. 93As was raised during oral argument, there is a difficulty for the appellant in maintaining his submission that there was full agreement between the psychiatrists that at the time of the offence he was substantially impaired by an abnormality of the mind, disregarding self-induced intoxication. This arises from the conclusion of Dr Westmore in his report of 29 March 2012 that: "On the balance of probability I would accept that this man suffers from an underlying condition specifically a disease of the brain which has its etiology in a past history of head injuries and alcohol abuse and the disease of the brain would represent an abnormality of mind which, at the relevant time, is likely to have impaired Mr Goodridge's capacity to control himself in relation to the deceased. To that extent he would be eligible to raise the defence of substantial impairment to the charge of murder...." (my emphasis) What is significant is that Dr Westmore does not use the word "substantially" before the word "impaired" when expressing that opinion. That appears to be intentional rather than an oversight because the next line commences with the words "To that extent". I read that expression of opinion, as did the trial judge, as significantly qualified and not sufficient to satisfy the first limb of s23A(1). Accordingly, it is not correct to say that there was a unanimity of opinion between the psychiatrists. 94The real issue under this ground of appeal is whether the other evidence in the categories identified by her Honour, which the psychiatrists were not privy to, was such that it was open to her Honour to conclude that the appellant had not established substantial impairment. 95Before considering the ERISPs in detail, it needs to be appreciated that Dr Nielssen saw the appellant for the first time approximately five and a half months after the offence and that his second interview took place a further 10 months later. Both interviews were by way of audiovisual link. In the case of Dr Westmore, his consultation took place approximately 21 months after the offence. It is common ground that by the time Dr Nielssen saw the appellant on the third occasion and at the time Dr Westmore saw him, his underlying condition had greatly deteriorated and Dr Nielssen added dementia to his diagnosis. This would make it particularly difficult for the psychiatrist to extrapolate backwards as to the appellant's condition at the time of the offending. 96The ERISPs were conducted within two days of the offending. It is trite to observe that the ERISPs would provide a more accurate picture of the mental health state of the appellant at the time of the offending than would the later consultations. A viewing of the ERISPs would have been of considerable assistance to the psychiatrists in reaching their conclusions as to the extent of the appellant's underlying impairment at the relevant time. Neither psychiatrist had the transcript of the ERISPs, nor had they watched the electronic recordings. 97The first ERISP took place between 11.16pm and 2.25am on 16/17 May 2009 and comprised 954 questions and answers. The second ERISP commenced at 6.11am on 17 May 2009 and concluded at 8am. It comprised 658 questions and answers. In between the two ERISPs the appellant underwent a number of forensic procedures in relation to the clothing found in the railway barracks and the blood spatter. These lengthy visually recorded interviews were played to her Honour during the course of the special hearing. Her Honour was entitled to form a view on the issues in the case insofar as they affected the appellant, having regard to what he said and the way in which he said it in the ERISPs. It was accepted that as a result of the time that the appellant had been in police custody, he was not intoxicated when the ERISPs took place. 98In the first ERISP, it is clear that the appellant had some difficulties with memory and his answers were somewhat rambling. They were, however, responsive. The appellant's memory as to dates was poor but his description of events was clear and appropriate. 99The observation by her Honour to the effect that one does not get a true appreciation of the appellant's capacity until one actually sees his performance on the ERISPs, conforms with my observation. What does not emerge from the transcript of the ERISPs is the demeanour of the appellant in that he was alert and related appropriately with the two police officers. During the course of the first ERISP, the appellant prepared a diagram of the railway barracks and indicated on it the room which he and the deceased were occupying and the location of other rooms in the building. 100The first time in the first ERISP that the appellant appeared to contradict himself was when he suggested that another person was in the barracks at the same time as he and the deceased, a person he identified as Keith Doherty. Having said (accurately) that the deceased had been staying with him at the barracks for about four nights (Q.218) he subsequently said that Keith Doherty, an old friend of the deceased, had come to the barracks two weeks before at a time when the deceased was there (Q.223 - Q.250). 101The explanation for this contradiction is clearly that the appellant was not telling the truth about Mr Doherty and had tripped himself up. 102The tenor of the appellant's responses in the first ERISP is that he was attempting to deflect attention from himself and was not prepared to admit that he had behaved violently towards the deceased. This is to be contrasted with the second ERISP where (perhaps as a result of having undergone the forensic procedures) the appellant made a number of admissions as to pushing, striking and ultimately sexually assaulting the deceased. Apparently during one of the forensic procedures, the appellant told the investigating police officers that they would "find something" (Q.66). 103It was in the second ERISP that the appellant said that after consuming a large cask of wine with the deceased, he had assaulted her on a number of occasions by pushing her so hard that she fell back and hit her head (Q.115, Q.119-120, Q.122, Q.128, Q.141, Q.143, Q.146, Q.149, Q.156, Q.157). The appellant described ripping off the deceased's clothes and having sex with her, going "berserk", being variously "cranky" and "frigging angry" with the deceased. The appellant said that he wanted to "teach her a lesson" and "to hurt her". 104Having viewed the first and second ERISPs, I agree with her Honour that it is difficult to see how the psychiatrists could have made an accurate assessment of the appellant's mental state without having seen them. Even the transcripts do not provide an adequate impression. The ERISPs provide reliable evidence of the appellant's capacity and the extent to which it was impaired by his underlying condition (the brain damage) proximate to the time of the offence. I agree with her Honour's conclusion at [100] that "the ERISPs viewed as a whole display the extent to which the accused was capable of judging whether his actions were right or wrong and, to a lesser extent, his capacity to control himself." 105In viewing the ERISPs I, like her Honour, have made due allowance for the observations of Dr Lennings to the effect that the appellant might present as being somewhat more intellectually sophisticated than he in fact was because of his superficial verbal skills. 106I agree with what her Honour said at [101] to the effect that the ERISPs do show that the appellant's capacity to understand events and judge whether his actions were right or wrong to be impaired by his underlying condition, but not substantially so. That is a finding clearly open from a viewing of the entirety of the two ERISPs. 107The appellant was shown to be oriented and reasonably coherent. The answers he gave to questions were appropriate. He remained substantially focused throughout the two lengthy interviews and was able in some instances to recall past events in considerable detail. It is quite incorrect to characterise his recollection of past events as chaotic, patchy and incomplete. When giving an account of his actions, he was able to recognise when his conduct had been wrong. While his recollection as to dates and the precise timing of events displayed some confusion, when the investigating police officers took him back to pension day (Wednesday) he was able to work forward from there. 108The appellant's submission in relation to the evidence of the lay witnesses is that although he had lost his temper, shouted and made threats when intoxicated, he had not engaged in any actual violence. He submitted that this, coupled with the absence of any violent behaviour on his criminal record, made it unsafe for her Honour to rely upon the evidence of the lay witnesses as establishing that there was a connection between his intoxication and the offence. There is a circularity in that argument. The offending behaviour was so violent that there was nothing in the appellant's history which would provide any indication that he would behave in that way. There was nothing in his underlying mental condition historically to explain the behaviour. There was no indication that his underlying mental condition had deteriorated in the months leading up to the offence. Accordingly, that consideration was largely neutral. 109There was, however, a body of evidence, being that of the lay witnesses to the effect that in the six months or so leading up to the offence, not only had the appellant's behaviour become aggressive, but he was drinking a lot more. This was the observation of Mr Knight who was a close friend of the appellant and so considerable weight needs to be given to his assessment. There was another trigger identified by Mr Knight, not only for the increased drinking but also for the aggressive behaviour, and that was the eviction of the appellant from the flat where he had resided for the preceding 9 years. 110Mr Pollard, in paragraph 20 of his statement, referred to the appellant being involved in a fight at the Moss Vale Hotel on Wednesday, 13 May (the day before the offence). We know that the appellant had been drinking heavily that day because of the evidence of Mr Knight to that effect. There was no evidence of the appellant being involved in actual physical fighting before this incident. 111The evidence of the other persons, to whom her Honour referred, i.e. Ms Daley, Mr Parry and Mr McVie, is to similar effect. They linked his aggressive behaviour to the consumption of alcohol. The overall effect of the lay evidence referred to by her Honour is an escalation in the months leading up to the offence of both the appellant's drinking and of his aggressive behaviour. Her Honour's conclusion at [68] that the appellant's behaviour was more controlled when his alcohol level was lower, and became more erratic and aggressive the more he drank, was not only open to her but was a proper inference to be drawn from the factual material to which she referred. 112I have concluded that the evidence of the lay witnesses, which was not available to the psychiatrists, was not only relevant to the central question of whether the appellant's brain injury substantially impaired his ability to control himself but had a real significance when considering that question and the associated question of the extent to which the consumption of alcohol had aggravated the situation by significantly reducing the appellant's self control. 113In relation to the appellant's level of intoxication, there seems little doubt that he was heavily intoxicated at the time of the offence. By referring to the blood alcohol concentration of the deceased of .373 percent, her Honour was doing no more than giving a "broad indication" of his state of intoxication. What is clear is that both he and the deceased had been drinking very heavily in the two days leading up to the offence. The fact that the deceased and the appellant were of a similar size is important, as is the evidence of the appellant in the second ERISP that they had both been drinking a substantial quantity of cask wine on the day of the offence. 114The extent of the appellant's intoxication was an important matter. Dr Nielssen assumed that he was heavily intoxicated at the time of the offence, but Dr Westmore did not have that information. Neither of them, however, had any detailed information about the extent of the intoxication, particularly the possibility that the level of blood alcohol concentration could be in the order of .373 percent. The level of the appellant's intoxication at the time of the offence was clearly a relevant and important consideration. 115It follows from the above analysis that it was well open to her Honour to reach a different conclusion to that of the psychiatrists. This material, in particular the presentation of the appellant in the ERISP, was important to the resolution of both limbs of s23A(1) of the Act. It was also important to note that the psychiatrists were not privy to much of this evidence when preparing their reports. 116It is trite to observe that juries (and judges sitting alone) are not bound to accept and act upon expert evidence but they are not entitled to disregard it capriciously - R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo [2008] VSCA 75; 18 VR 644 at [44]. In this case, there was evidence which was not available to the experts and which was important upon the issue of substantial impairment. In those circumstances, her Honour was entitled and bound to consider not only the psychiatric material but the whole of the evidence before her. The other evidence, not available to the psychiatrists, enabled her Honour to assess the quality and weight of the psychiatric evidence, particularly when, as indicated, the opinion of Dr Westmore at least was somewhat qualified. 117The process of reasoning followed by her Honour was logical. She identified a rational basis upon which the expert opinion was not to be accepted. She comprehensively considered all of the evidence that was tendered during the special hearing. It was open to her to conclude that the effects of alcohol played a significant role in the commission of the offence by the appellant. It was open to her Honour to conclude in relation to the first limb of s23A(1) that it was the fact of the appellant's heavy intoxication superimposed on the underlying brain injury which resulted in substantial impairment rather than the brain injury alone. 118As was accepted during the appeal, it was not only the psychiatric evidence which would determine the outcome of the special hearing. Her Honour indicated that, even if she had been satisfied of substantial impairment in the absence of alcohol in accordance with the psychiatric material, she would still not have concluded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter under s23A(1)(b). Expert opinion is not admissible under the second limb of s23A(1) and the issue is one for the tribunal of fact to determine. This was a determination which has been described as giving rise to "an issue which is quintessentially one for the determination of a jury" (or a tribunal of fact): R v Hucker [2002] NSWSC 1068 at [2] (Howie J); R v Potts [2012] NSWCCA 229. 119Her Honour's finding that the appellant had not discharged the onus of persuading her that any lessening of condemnation upon him was warranted was clearly open, given the nature and circumstances of the killing. I am not satisfied that her Honour was bound to find that the partial defence of substantial impairment was made out on all of the evidence. It was open to her Honour to find the offence of murder proven. The verdict is not unreasonable. 120This ground of appeal has not been made out. Ground 2 - Her Honour erred in not directing herself that she should not reject unanimous expert evidence unless it was contradicted by other persuasive evidence. Submissions 121The appellant's submission in relation to this ground is based more on form than on substance. The appellant submitted that a judge in a judge alone trial is required to set out the relevant principles of law to be applied and to take into account any warning which would be given to a jury - Fleming v R [1998] HCA 68; 197 CLR 250 at [31] - [33] where Gleeson CJ and McHugh, Gummow, Kirby and Callinan JJ said, with reference to s33(3) of the Criminal Procedure Act 1986 (NSW): "31 Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account. 32 The obligation imposed by s 33(3) "to take the warning into account" is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law. 33 The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account." 122The appellant submitted that because her Honour had not in terms set out in her judgment that she had given a direction to herself that she should not reject unchallenged, unanimous expert evidence unless it was clearly contradicted by other evidence, she had not complied with s33(3) and as specified in Fleming, had not taken the warning into account. Consideration 123It is true that her Honour did not in terms give herself a direction as set out in Ground 2. Equally, a fair reading of her Honour's judgment as a whole, shows that it was a legal principle which her Honour was clearly applying throughout. 124Having fully reviewed the medical evidence, her Honour said: "97 The expertise and experience of the experts is undoubted. However, for the reasons set out below, their opinions are insufficient to persuade me that impairment is made out." Her Honour thereafter set out her reasons for not accepting the expert evidence. She identified the other persuasive evidence which contradicted the evidence of the experts. This was the ERISPs, the lay witness statements and the likely high degree of intoxication of the appellant at the time of the offending. 125The appellant's submission also fails to have regard to the qualification in Fleming at [30] where their Honours said: "30 Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded." 126In this case the judgment clearly shows expressly and by implication that the principle was applied. There has accordingly been no error of law or miscarriage of justice. 127There also remains the difficulty identified in the discussion of Ground 1, i.e. that the opinion of the psychiatrists was not unanimous. Even if by implication, one accepts that the effect of the reports of Dr Nielssen is to establish the partial defence, that is not the effect of the reports of Dr Westmore. He does not in terms refer to "substantial" impairment. That difficulty undermines the basis upon which Ground 2 is postulated. Ground 3 - There was a miscarriage of justice because her Honour did not advise the parties that her Honour intended to reject the unanimous evidence of the expert witnesses and invite the parties to provide the witnesses with further material and call them to give further evidence. Submissions 128In support of this ground, the appellant submitted that the trial had proceeded in an abbreviated fashion with no witnesses called to give oral evidence. The Crown brief was tendered, including the reports of Drs Nielssen, Westmore and Lennings, the statements of the lay witnesses and the discs of the electronically recorded interviews. Those discs were then played. When the Crown closed its case, counsel for the appellant advised that there would be no additional evidence called by the appellant because the psychiatric reports were already in evidence. The matter resumed on 19 April 2012 for submissions. 129The appellant noted that before her Honour the Crown had said: "So I won't be submitting that s23A does not apply your Honour; I think I would be agreeing with Mr Winch in relation to his submissions on its applicability." (T.17.4.12, p25, line 33) 130The appellant also accepted that during submissions on 19 April 2012 her Honour expressed reservations about the evidence and in particular, about whether the defence had made out the partial defence under s23A. The appellant submitted that referring to a "slight reservation" about the opinion of the psychiatrists was a very different thing to warning the parties that her Honour proposed to reject their opinion when they had not been required to give evidence and when their opinions had not been challenged by other expert evidence. He submitted that in the circumstances of this case, her Honour should have invited the parties to provide the witnesses with the material which concerned her Honour and to have called the witnesses to respond to her Honour's concerns. 131The appellant submitted that such flexibility was one of the advantages that existed in a judge alone trial. The appellant submitted that her Honour's failure to give the appellant the opportunity to meet her concerns amounted to procedural unfairness and consequently a miscarriage of justice. Consideration 132What the appellant's submission fails to acknowledge is that a special hearing is to be conducted as closely as possible as if it were a trial of a criminal proceeding (s21(1) of the Mental Health (Forensic Provisions) Act 1990). It follows, that even in the case of a special hearing, the courts operate on the adversarial system. This is particularly so in a case such as this where the appellant is unfit to plead. In such circumstances, there is no question of the Crown dealing with matters by consent. There are issues upon which the trial judge has to be satisfied. This is so in relation to s23A where the second limb requires a value judgment made on all of the evidence except the medical evidence. 133In Madden v R [2011] NSWCCA 254 at [29] Simpson J (with whom Whealy JA and Hislop J agreed) said in relation to the adversarial system: "29 ... The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged, certainly not by this Court. It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. ... a judge must be very circumspect in intruding into the role of counsel." 134Her Honour clearly raised for the parties' consideration the reservation she had about the psychiatric material. She identified what was "troubling her" by drawing to the parties' attention the evidence that she saw as highly significant in terms of ascertaining the appellant's capacity to control himself, to understand whether his actions were right or wrong, and to understand events. Her Honour specifically referred to the ERISPs and the content of the witness statements about observations of the appellant when intoxicated. 135The indications given by her Honour as to her reservations were clear and by no means precluded the appellant either seeking an adjournment to meet those reservations or otherwise dealing with them. The following exchanges between her Honour and counsel during the course of submissions makes that clear: "HER HONOUR: Can I tell you what's troubling me and that is in terms of ascertaining the accused's capacity to control himself to understand whether his actions are right or wrong and to interpret past events, in terms of my appreciation of that matter, his presentations on the ERISPs and also the lay witness statements are highly significant because they are, broadly, the ERISPs are broadly contemporaneous and one might imagine the effects of intoxication had warn off by the time the accused was interviewed by police, or worn off to the extent to which they can wear off, so that in the ERISP I would be seeing his underlying condition, albeit without provocation or without such provocation as is entailed in that kind of interview. I've got that piece of real evidence, as it were, of his capacity to interpret past events and to know whether his actions are right or wrong. It may be that the ERISPs don't necessarily tell me about his capacity to control himself but at least in respect of two out of three I would have thought that might be quite powerful evidence. Then when one moves to the statement of the townspeople from Moss Vale who observe him on a, pretty much, daily basis and in various stages of intoxication, I notice that the person who took the statements - or the statements contain detail about what he's like when he's sober or, if I may say so, relatively sober, and what he's like as he becomes more and more intoxicated. So I've got that factual foundation. ... The difficulty I have is those three categories or pieces of evidence, the ERISP, the statements and autopsy report, are a very significant foundation, I would have thought, in my consideration of whether the partial defence under section 23(1)(a) have been made out, and yet the psychiatrists were not privy to those matters except in a very limited extent Dr Westmore had the Crown's case statement. CROWN PROSECUTOR: Yes. HER HONOUR: So I just wondered whether, I would like to hear from both of you on why that wouldn't affect the weight I would give to Dr Westmore and Dr Nielssen's reports. The other thing I would like you to address me on if I'm not satisfied the partial defence is made out either because I'm not satisfied of 23(1)(a) or 23(1)(b) what you would say about the relative terms, the limiting terms, that I should impose in either event for murder or manslaughter. ... HER HONOUR: In terms of that first matter I raised, though, about the reliability, obviously Doctors Westmore and Nielssen are very experienced, very qualified psychiatrists whose expertise is undoubted and unchallenged. But I have a slight reservation about their opinions and the weight I should attribute to their opinions in light of the fact that they have not been provided with what I see as being quite, well, valuable, important evidence. I'm not being critical of anyone here. CROWN PROSECUTOR: I understand that. I've just spoken to Mr Winch. If your Honour feels that you would be assisted by the doctors receiving that material and providing a further report, as I understand it the defence doesn't object to that, and if that's what your Honour wishes then the Crown would ... HER HONOUR: I'm not really sure if it's my wish. The accused has an onus under section 23(a) he is relying on a construction of those psychiatrist reports and says, as Mr Winch has said in his submissions, that they are congruent and that essentially they establish or could be taken by me to establish the defence of substantial impairment under 23(1)(a). You are both very experienced in running these cases so I'm not telling you how to run the case, it's just that seemed to me to be something which could, I suppose, make me pause more before accepting their opinions. Now, there is still, notwithstanding that, a question of what they are actually saying in their reports because I don't think they address it. Well, they address it in their own words as they should do but in terms of the decision I have to make under the statute it is a different decision and obviously their opinions will assist me in that. So I'm not wanting to suggest to you that you should have prepared the evidence differently or run the special hearing differently. I don't know that it would be appropriate for me to say send them away and look at this and maybe we'll have concurrent evidence. I don't really think that's my role or that I should do that. CROWN PROSECUTOR: Yes your Honour. I appreciate what your Honour is saying and I thought I appreciated the significance of the absence of the material in the reports, and that's why I got that latter report from Dr Westmore because there was the hiatus really in relation to the one issue that your Honour has to consider. HER HONOUR: Certainly their attention has both been directed to the fundamental question of substantial impairment and the relationship between the underlaying condition of the impairment and the intoxication. They have certainly focused on that and, to my mind, addressed that in their own terms. ... WINCH: Your Honour, I do have the onus, and I can see the concern your Honour has or the reason that your Honour is giving considerable weight to the interviews that we saw and to the behaviour of the accused as noted by the townsfolk in Moss Vale. It's certainly the case that it's not the law that it's for the experts to tell your Honour or to give an opinion about it whether the partial defence is made out or not, but there is a large amount of psychiatric evidence and whether I put it too highly that it's congruent it certainly points all the one direction, if I can put it less forcefully, particularly in relation to the taking out of the equation of the intoxication and what is left. ... HER HONOUR: In terms of the underlying condition you can take it I accept there is an underlying condition. It really a question of whether the impairment absent the intoxication would be substantial. There is obviously an impairment, I can see that. It's just whether I'm satisfied of that ... WINCH: I see your Honour. My response is that when the doctor saw him he was sober but he deteriorated; when we saw him on the ERISP and the doctors did not he was sober and in better condition than when the doctors saw him. And my respectful submission is that he was not in good shape at all in terms of the impairment and in terms of his capacity. HER HONOUR: Although he did I'm not suggesting he was in good shape and anything I have to say shouldn't be seen as making light of what is obviously a serious underlying condition but he did, it seemed to me, have a recall of past events such - I should say some recall of past events which was compromised perhaps by a horror or abhorrence of what he had done, and he also appeared to me to understand that he knew very well that what he had done was wrong." (T.19.4.12 - p, 29.1-32.47) 136The remaining exchanges between her Honour and counsel made it clear that her Honour retained the reservations which she had identified. It was open to both counsel to have made an application to her Honour but they declined to do so. That is a very different situation from a case where there has been a denial of procedural fairness. This is not the sort of case where the judge remained silent and failed to reveal opinions thereby depriving the party affected of the opportunity to persuade the judge to change or modify those opinions. 137Having clearly expressed her reservations and concerns with respect to the psychiatric material, it was for the parties to decide what course they wished to take. It was not her Honour's role to decide how they should proceed. That was a matter for counsel. Importantly, there was no requirement for her Honour to tell the parties outright that she intended to reject the evidence of the psychiatrists. In fact her Honour may not have reached that conclusion at that point in time given that submissions were continuing. The identification of her concerns was sufficient. 138I am satisfied that no procedural unfairness took place and that this ground of appeal has not been made out. Application for leave to appeal against sentence Ground 4 - The limiting term her Honour imposed on the appellant is manifestly excessive. 139Before setting out the appellant's submissions, it is important to understand the facts upon which her Honour sentenced the appellant. The general factual background to the offending has already been set out. The additional findings on sentence were: "17 The deceased bled to death as a result of injuries she sustained to her vagina and her rectum for which the Forensic Patient was responsible. His conduct in pushing his right arm into her vagina and her rectum caused her to bleed profusely which resulted in her death. He intended to cause her grievous bodily harm to punish her because she would not comply with his wishes. 18 At the time the Forensic Patient killed the deceased he was grossly intoxicated and he also had an underlying condition of alcohol-related brain damage. His judgment was substantially impaired by reason of his self-induced intoxication, which tended to make him behave aggressively and erratically. His judgment was also impaired, but not substantially so, by the underlying brain damage. 19 Nonetheless the Forensic Patient appreciated at the time of these events that his acts towards the deceased would cause her really serious injury and that he intended to do so. There is, in my view, no basis to distinguish between his acts of pushing her to the floor, which he has admitted were done to hurt her and "teach her a lesson" and his acts of pushing his right arm into her vagina and rectum which caused her to bleed to death. 20 The Forensic Patient's actions that resulted in the deceased's death were horrendously violent and savage. They involved a substantial and determined use of force, which both violated and denigrated her in a brutal and degrading way. He utterly abused the goodwill which she, from a generous concern for his welfare, had shown him by spending time with him in hospital and accompanying him to the railway barracks." (R v Goodridge (No 2) [2012] NSWSC 1180) 140At the time of sentencing, her Honour had before her a report of Dr Reutens, dated 6 August 2012. Dr Reutens was a specialist in the psychiatry of old age. Dr Reutens assessed the appellant as having deteriorated intellectually since he was assessed by Dr Lennings and Dr Nielssen. When she examined him, he was aware that he was in prison but was not sure why this was so. He could not remember what his charges were. He was unable to recognise his own face in a mirror. Because of his dementia, his life span was probably about 5 years. 141Her Honour imposed a limiting sentence of 18 years. When doing so, her Honour found that because of his mental condition, specific and general deterrence had no bearing on the sentence and that the appellant no longer presented a danger to the community. In relation to the offending itself, her Honour found that there was no intention to kill, that the period of premeditation was very short and that the appellant's ability to form an intent would have been affected by his use of alcohol and his mental condition. Submissions 142It was against that background that the appellant submitted that he was a severely disabled person whose judgment at the time of the offence was severely impaired, who had a very short estimated life span with no significant criminal record, who was unable to remember why he was in custody and who presented no danger to the community. He submitted that it was difficult to see which, if any, of the purposes of sentencing were served by the imposition of a 18 year limiting term. 143The appellant submitted that in view of the findings of Dr Reutens, one might have expected that he would be transferred to a more appropriate facility than where he was currently located (i.e. the aged care and rehabilitation unit of the prison hospital). He submitted that this had not yet happened and was unlikely to happen given that the role of the Mental Health Review Tribunal was not to provide the best environment for persons such as him, but to ensure that there continued to be an element of punishment in his continued detention (Matter of Adams - MHRT 25 July 2013). Consideration 144The appellant seeks leave to appeal against the severity of the limiting term imposed upon him, pursuant to the provisions of s23(1)(b) of the Mental Health (Criminal Procedure) Act 1990, now known as the Mental Health (Forensic Provisions) Act 1990. A limiting term is defined by s23(1)(b) as: "... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 145This Court has held that limiting terms are "the equivalent of the total term of the sentence that would have been imposed and not simply the minimum period that the person would have been required to spend in custody before being released to parole" (R v AN [2005] NSWCCA 239 at [13]; R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 at [22] - [41]). In Mailes Dunford J (with whom Adams and Howie JJ agreed) said: "43 The difficulty with the submission is that it is contrary to the statute which, as I have shown, requires the limiting term is to be set by reference to the head sentence that would have been imposed following a guilty verdict in a proper trial. The fact that there is no provision for the equivalent of a non-parole period does not affect the term of the head sentence that would otherwise have been imposed, and there is no logical reason for reducing it simply because there is no provision for a non-parole period or its equivalent." 146At the heart of the appellant's submission is that her Honour failed to have adequate regard to his mental illness, particularly as described by Dr Reutens. Implicit in the submission is the proposition that although her Honour acknowledged that specific and general deterrence had no part to play and that the appellant no longer presented a danger to the community, she did not give effect to those findings. Also implicit in the submission is the proposition that had her Honour properly taken those matters into account, she would have imposed a lesser limiting term. 147The difficulty for the appellant is that her Honour went into considerable detail in analysing his mental disability and its effect upon him, even though she had rejected the defence of substantial impairment by abnormality of mind in the special hearing. Her Honour indicated that she was conscious of the fact that she was required to sentence the appellant upon the assumption that he was an offender who was not fit for trial but suffering from a mental illness. Her Honour accepted that the appellant's heavy drinking "tended to make him behave erratically and aggressively". She accepted that "his intoxication impaired his judgment and contributed to abhorrent behaviour towards the deceased". 148As her Honour appreciated, however, those considerations did not exhaust the matters to which she had to have regard. In that regard, her Honour found that the most significant factor in determining the limiting term was the seriousness of the offence. The details of that offending have been set out at [139] hereof. The maximum penalty for murder is life imprisonment. The limiting term imposed by her Honour against the background of this horrendously violent and savage attack was 18 years. That sentence had appropriate regard not only to the seriousness of the offence but the requirements for retribution and denunciation which remained important. The circumstances of this offence required that the acknowledgment of the victim and the wrong to society be recognised. 149As is clear from her Honour's judgment, she took those matters into account together with the appellant's mental illness and the effect which that had on sentence. In reaching her conclusion as to the limiting term, her Honour appropriately acknowledged the difficulties involved when she referred to the observation of McClellan CJ at CL (with whom Howie and McCallum JJ agreed) in Bhuiyan v R [2009] NSWCCA 221 where his Honour said: "30 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ recognised the difficulties faced by a court when sentencing persons with mental disorders. Those difficulties are compounded when a person is found not fit to be tried but, applying conventional principles a court is required to determine a limiting term. It is necessary to keep steadfastly in mind that although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired." 150I am not persuaded that the appellant has demonstrated that the limiting term imposed by her Honour was "unreasonable or plainly unjust" (Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325). This ground of appeal has not been made out. 151The orders which I propose are as follows: (1) In relation to the conviction appeal, the appeal be dismissed. (2) In relation to the application for leave to appeal against sentence, I would grant leave to appeal but dismiss the appeal. 152SIMPSON J: I agree with Hoeben CJ at CL. I also endorse the additional observations of Johnson J. 153JOHNSON J: I have had the advantage of reading the judgment of Hoeben CJ at CL. I agree with his Honour's judgment. 154I have viewed the recorded interviews held by investigating police with the Appellant on 16 and 17 May 2009. Having done so, I express my complete agreement with the statements and conclusions contained at [96] - [107] of the judgment of the Chief Judge at Common Law. 155I wish to make some additional observations. The audio-visual recording of police interviews with suspected persons has many benefits for the criminal justice system. The clearest advantage has been to reduce, if not eliminate, what had previously been significant areas of dispute concerning records of interview (including admissions) said to have been made by an accused person. 156There are further benefits as well. An audio-visual recording of a record of interview will assist a jury, Judge or Magistrate in assessing the account given by an accused person, frequently close to the time of the alleged offence, and the demeanour of the person during the interview. 157Where, as in the present case, there are issues likely to arise concerning the mental state of the accused person at the time of the alleged offence, an audio-visual recording of an interview with the person is an important piece of evidence. There is significant scope for issues of this type to arise in this Court, in the context of a charge of murder where the defence of mental illness may arise and the partial defence of substantial impairment is available. 158Where forensic psychiatrists are retained to examine an accused person charged with murder concerning issues of fitness to be tried, the defence of mental illness and the partial defence of substantial impairment, then it is desirable that legal representatives for the Crown and the accused person take steps to ensure that audio-visual records of interview are available to medical practitioners from whom opinions are sought. 159The present appeal concerns a special hearing. As Hoeben CJ at CL observes with respect to Ground 3, a special hearing is an adversarial proceeding to be conducted as nearly as possible as if it were a trial of criminal proceedings: s.21(1) Mental Health (Forensic Provisions) Act 1990. The procedure is to be contrasted with an inquiry as to fitness to be tried, an inquisitorial process to be determined on the balance of probabilities, and not to be conducted in an adversary manner, with the onus of proof not resting on any party to the proceedings: ss.5-12 Mental Health (Forensic Provisions) Act 1990. 160It was for her Honour to determine the real issue at the special hearing, namely whether the Appellant had established the partial defence of substantial impairment on the balance of probabilities, by reference to the evidence adduced by the parties. That evidence included the audio-visual recordings of the two interviews conducted with the Appellant. It was necessary for her Honour to have regard to that evidence in the discharge of the Court's functions at the special hearing. Her Honour conducted the special hearing in accordance with the law, and in a manner which was fair to the parties. 161I agree with the orders proposed by Hoeben CJ at CL.