Qoro v R

Qoro v R - [2008] NSWCCA 220 - NSWCCA 2008 case summary — Zoe

[33]

… The offender was in company with only one other man at the time he sexually assaulted the complainant, although there were a significant number of other men nearby. He was clearly involved in the joint criminal enterprise to deprive the complainant, that enterprise being an agreement between many others." 13 Given a further issue raised on the appeal, it is appropriate to refer to the following part of the evidence at trial. Soon after the complainant left the house in Eveleigh Street, she met an acquaintance, Natasha Tighe, who observed that the complainant was crying. The complainant said she had just been raped. Ms Tighe told her not to have a shower or change her clothes. The following morning, Ms Tighe took the complainant to the Aboriginal Medical Centre and thereafter, she was transported to Royal Prince Alfred Hospital where she was examined by Dr Patricia Brennan. She was spoken to by police who arranged to take a statement from her. 14 After the assault, the complainant saw the "Islander guy" in Eveleigh Street, Redfern and pointed him out to Ms Tighe. On 13 January 2006, the complainant was shown a photo array and immediately picked out the "Islander guy", selecting a photograph of the Appellant. 15 In cross-examination by counsel for the Appellant, Ms Tighe said that, after the first police interview, she and the complainant were walking in Eveleigh Street when they saw a group of men on the road. The complainant pointed out four men who had violated her, one of whom was the "Islander". In re-examination, Ms Tighe clarified that the "Islander" pointed out to her by the complainant was "Sela … him" being the Appellant who was in Court. Ms Tighe said that she had seen the Appellant three times in the few days after the attack. 16 The Appellant was arrested on 4 January 2006 (T154). The Appellant declined to participate in an ERISP, but agreed to a buccal swab and the taking of forensic photographs of his genitals (T155). Three lumps were visible on the Appellant's penis half-way between the scrotum and the tip of the penis on the right-hand side (T397-398).

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Ground 1 - Refusal to Discharge the Jury 17 As mentioned earlier, the trial commenced on 28 August 2006 as a joint trial of the Appellant and Everett Charles Weatherall. On 6 September 2006, the trial Judge acceded to an application by Weatherall's defence counsel to discharge the jury in relation to his client. For present purposes, it is not necessary to recite in any detail the reason for this decision. It is sufficient to note that counsel for Weatherall had made application under s.293 Criminal Procedure Act 1986 to cross-examine the complainant with respect to the presence of Raymond Noel King at a time when an act of sexual intercourse was alleged by Weatherall to have occurred with the complainant some days before 24 November 2005. Counsel for Weatherall had informed the trial Judge that King was to be called as a witness in Weatherall's defence case. However, on 5 September 2006, following the receipt of DNA analysis, police determined to charge King with sexual assault offences arising out of the events which gave rise to the trial of the Appellant and Weatherall. The trial Judge was satisfied that it was in the interests of justice that the jury be discharged in relation to Weatherall given this recent development. 18 I note that Weatherall and King later stood trial before his Honour Judge Woods QC and a jury for sexual assault offences against the complainant. Both were convicted and, on 20 September 2007, sentenced to lengthy terms of imprisonment. It was these sentences which gave rise to the parity ground of appeal on sentence abandoned by the Appellant at the hearing of the present appeal. 19 Following the discharge of the jury on 6 September 2006 concerning Weatherall, the trial Judge informed the jury that they had been discharged with respect to the trial of Weatherall, but would continue with the trial of the Appellant. No objection was taken at that time by trial counsel for the Appellant (who did not appear on appeal) to the explanation provided to the jury by the trial Judge in this respect (T546-547). 20 On the morning of 7 September 2006, counsel for the Appellant made application for discharge of the jury on two bases - firstly, the discharge of the jury in relation to Weatherall and, secondly, the effect of the in-court identification of the Appellant by Ms Tighe (see [15] above). The trial Judge declined to discharge the jury (Judgment, 7 September 2006). In the course of giving reasons for this decision, his Honour stated that:

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(b) a reference by the Appellant's wife to the Appellant having been in prison at one stage. 24 In oral submissions, Mr Brady developed an argument that the trial Judge and defence trial counsel had not understood until late in the trial (on 12 September 2006) that the Crown was to rely upon the doctrine of joint criminal enterprise against the Appellant with respect to the element of deprivation of liberty. Mr Brady submitted that, in some way, this development could be related back to the refusal of the trial Judge to discharge the jury on 7 September 2006. 25 It became increasingly apparent during Mr Brady's submissions that this issue provided no real assistance to him in support of Ground 1. The trial Judge had heard and determined the discharge application made on 7 September 2006 by reference to the arguments advanced in support of that application. Thereafter, the trial proceeded until 14 September 2006. No further application was made by defence counsel to discharge the jury. Faced with this difficulty, Mr Brady formulated a fresh ground of appeal which he advanced, without opposition from the Crown, at the hearing of the appeal, being Ground 3 to which I will shortly turn. 26 I propose to deal with Ground 1 by reference to the arguments advanced by Mr Brady in his written submissions. With respect to these issues, the Crown submitted that his Honour's refusal of the application to discharge the jury was a proper exercise of discretion, there was no error in principle and that the refusal to discharge the jury did not occasion any risk of a miscarriage of justice, much less a risk of a substantial miscarriage of justice. 27 The Crown submitted that the offence charged against the Appellant was significantly related to those alleged against Weatherall, their offences having occurred in the same house, during the same evening, in rooms next to each other and upon the same victim. It was never the case that only a small fraction of evidence led at trial was admissible against the Appellant. Furthermore, the Crown case against the Appellant included the allegation that he was a knowing participant in a criminal enterprise, of which Weatherall was the principal and which involved unidentified others, to detain the complainant in order for them to have sexual intercourse without her consent (SU39-43). 28 In the context of a trial in which the central issue was whether the Appellant was the "Islander guy" who perpetrated the offence in the second room, not that the events had not occurred, the Crown submitted that it could not be demonstrated that any prejudice was caused by the jury hearing evidence adduced prior to the discharge concerning Weatherall. The Crown submitted that directions given by the trial Judge that the jury should take into account cross-examination by Weatherall's counsel in favour of the Appellant (a direction sought by the Appellant's counsel) could not prejudice the Appellant. Further, directions given by the trial Judge to the jury concerning the new evidence (about King) and the in-court identification by Ms Tighe caused no prejudice to the Appellant. The references to the Appellant's arrest on an unrelated matter and his time in prison were not significant in the context of the trial and, in any event, were the subject of a direction by the trial Judge.

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Determination 29 The failure to discharge a jury is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the jury's discharge on 7 September 2006 that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, than can be discerned from reading a transcript: Crofts v The Queen [1996] 186 CLR 427 at 440-441. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice: Crofts v The Queen at 441. 30 I have considered the arguments advanced to the trial Judge in support of the discharge application and his Honour's reasons for refusing that application. It has not been submitted that his Honour applied an incorrect principle in determining the discharge application. His Honour was alive to the issues in the trial and the consequences which may result from the discharge of the jury with respect to the co-accused, Weatherall. In my view, his Honour's decision to decline to discharge the jury was a proper exercise of discretion in the circumstances. The arguments advanced raised theoretical possibilities or, to the extent that areas of possible prejudice were more clearly identified, the issues were met by directions given to the jury by the trial Judge. No error has been demonstrated in his Honour's decision declining to discharge the jury. 31 Insofar as counsel in this Court seeks to rely upon other arguments and, indeed, events which occurred after 7 September 2006 (such as the passing reference to the Appellant's arrest on another matter and his having been in prison in the past), the short answer is that trial counsel made no further application to discharge the jury. Mr Brady did not contend that, in some way, it was incumbent on the trial Judge to discharge the jury of his own motion (T9.29, 27 May 2008). In any event, his Honour gave the jury appropriate directions concerning these matters in the summing up (SU30-32) about which no complaint is made on appeal. 32 It has not been demonstrated that the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In my view, the first ground of appeal against conviction ought be rejected.

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Submissions 34 As mentioned above (at [24]-[25]), Mr Brady commenced to put this submission in support of Ground 1. It became apparent during the hearing that this argument could not advance materially the Appellant's case in support of that ground, given that no application was made for discharge of the jury on this basis either on 7 September 2006 or at any later time during the trial. Mr Brady's oral argument was that, in some way, the trial Judge had erred in not discharging the jury upon a basis which had never been advanced to him for discharge, and that a miscarriage of justice had resulted. When confronted with this difficulty by the Court during argument, Mr Brady sought leave to add a further ground of appeal in the form of Ground 3. The Crown did not oppose a grant of leave in this respect. 35 In essence, Mr Brady contends that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis for conviction which had not been opened by the Crown. He submits that the Crown did not open to the jury that the evidence of events in the first bedroom could be relied upon as evidence of a joint criminal enterprise (including the Appellant) to deprive the complainant of her liberty on the evening in question. He submitted that the Crown opening had not introduced this concept against the Appellant (T62-66). 36 Mr Brady submitted that, in the circumstances of the case, the late introduction of the concept of joint criminal enterprise with respect to the element of deprivation of liberty caused unfair prejudice to the Appellant so that a miscarriage of justice has resulted. He submitted that it was not until the end of the Crown closing address that it became apparent that the Crown was seeking to rely upon the events in the first room against the Appellant in support of the element of deprivation of liberty and, in this respect, was relying on joint criminal enterprise. He submitted that it was reasonable to assume that defence counsel had not realised that the Crown was putting its case in this way until this was made clear by the Crown Prosecutor to the trial Judge in response to a query from his Honour following the Crown closing address. 37 The Crown submitted on appeal that the evidence of events in the first room was admissible in the trial of the Appellant, and would have been admitted and relied upon by the Crown even if the trial had not commenced as a joint trial with Weatherall. It was submitted that no prejudice had been demonstrated by the Appellant in the way that events unfolded at the trial.

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Approach During the Trial to The Elements of Deprivation of Liberty and Being In Company 38 The Crown Prosecutor had opened with respect to the allegations against both Weatherall and the Appellant, and concluded the Crown opening, by way of summary of the issues, saying (T66): "Firstly Weatherall, then Qoro, sexually assaulted her by inserting his penis into her mouth in circumstances where other males were present. That is the element of in company. And in circumstances where she was not allowed to leave. That is the deprivation of liberty." 39 Mr Brady pointed to defence counsel's understanding, at the time of the Weatherall jury discharge application, that the Appellant was said to be "in company" with the young man in the room and not other persons (T539). During the course of the Appellant's discharge application, there was discussion concerning the person or persons with whom the Appellant was said to be "in company". 40 The trial Judge expressed his understanding that the Appellant was said to be in company with the young man present in the second room when the Appellant was alleged to have assaulted the complainant (T2-3, 7 September 2006). After his Honour declined the Appellant's discharge application, there was further discussion, in the absence of the jury, concerning the elements of deprivation of liberty and being in company (T16-17, 7 September 2006). The trial Judge made clear that the element of being "in company" required the physical presence of a person or persons in the second room at the time when the Appellant allegedly assaulted the complainant (T16, 7 September 2006). The Crown made clear that, with respect to the element of deprivation of liberty, reliance was placed upon the circumstances in which the complainant came to be in the house, and events which occurred in the first bedroom (T16-17, 7 September 2006). All of this was said before the Defence case had opened. Defence counsel made no application for a verdict by direction by reference to either of the elements of deprivation of liberty or being in company. 41 The Crown closing address identified the young man said to have been present when the Appellant sexually assaulted the complainant as being the person relied upon in support of the element of being "in company" (T729). With respect to the element of deprivation of liberty, the Crown reminded the jury of the complainant's evidence about Weatherall taking her into the house leading to her being brought to the first bedroom where she was sexually assaulted by a number of men before being taken into the sitting room (the second room) against her will and being forced to have sex in there (T735-736). The Crown submitted that the "Islander" (the Appellant) (T736-737): "… who arrived in that sitting room, must have been in the house and must have been aware of what was going on. And was involved in the grotesque episode whereby he further deprived her of her liberty for his own sexual gratification. That is the only inference that can be drawn from her evidence as to how she came into this house and how she came to leave it, a man who had some sense of decency arrived and said, 'give her a break'. What does that tell you? Somebody in that house realised that this woman was being subjected to fierce and prolonged physical and undoubtedly sexual abuse and he led her to safety. Members of the jury if anyone had been in that house that night other than the saviour he must have been aware of the fact that she was being detained there against her will. From all the evidence the Crown submits that you would be in no doubt that she was deprived of her liberty before she was subjected to the offences which are the basis of count and which are incorporated into count one, the aggravated count." 42 At the conclusion of the Crown address and in the absence of the jury, discussion ensued between the trial Judge and the Crown Prosecutor concerning the manner of proof of the element of deprivation of liberty (T745-747). In response to a question from the trial Judge, the Crown agreed that it relied upon joint criminal enterprise in this respect (T746). Defence counsel made no submission on the issue. No objection was taken nor was any expression of surprise made in this respect. Shortly thereafter, defence counsel delivered her closing address to the jury (T749-760). 43 Defence counsel said to the jury that the Appellant's case was "very simple" and was that he did not have oral sex with the complainant, was not in the Eveleigh Street premises at the time, but was at home with his family (T751). Understandably, the defence closing address focused almost entirely on this issue, which was the central issue in the trial. Defence counsel told the jury that they ought be "very careful" in considering the evidence of deprivation of liberty against the Appellant (T751). 44 The trial Judge summed up to the jury on 13 September 2006, the morning after closing addresses of counsel. Before the summing up, and in the absence of the jury, defence counsel made submissions concerning the element of being "in company" (T2-3, 13 September 2006). Defence counsel made a short additional submission to the jury which did not touch on the element of deprivation of liberty or any factual matters concerning joint criminal enterprise. 45 In the course of his summing up, the trial Judge gave directions to the jury concerning the elements of being in company (SU37-38) and deprivation of liberty (SU38-43). In the course of the direction concerning deprivation of liberty, his Honour directed the jury concerning joint criminal enterprise (SU40-43). Before concluding the summing up, the trial Judge gave the jury a short additional direction concerning the element of deprivation of liberty at the request of the Crown (SU59-60). 46 At no point before, during or after the summing up did defence counsel object to the direction concerning joint criminal enterprise or ask for any further direction on this issue. No complaint was made concerning the reference to joint criminal enterprise. It was not said that the introduction of this concept at that time had caused any prejudice to the Appellant. No application was made for discharge of the jury on this or any other basis.

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Determination 47 It is sometimes argued in this Court that a miscarriage of justice has occurred arising from the trial Judge leaving to the jury a possible basis of conviction which had not been relied upon by the Crown: Robinson v R (2006) 162 A Crim R 88 at 127-129 [137]-[149]; Smale v R [2007] NSWCCA 328 at [79]ff; Sieders v R [2008] NSWCCA 187 at [197]-[212]. The question to be considered by the Court of Criminal Appeal is whether there has been unfairness to the accused which gives rise to a miscarriage of justice by reason of the conduct of the trial and which requires the Court's intervention: Robinson v R at 129 [149]. In considering such a ground, it is appropriate to consider whether there has been any procedural or substantive unfairness to the Appellant. 48 With respect to procedural unfairness, it is appropriate to observe that no complaint was made by trial counsel concerning the introduction of the concept of joint criminal enterprise to the trial. Accordingly, the Appellant requires leave under Rule 4 of the Criminal Appeal Rules to rely upon Ground 3. 49 In this case, the trial Judge sought clarification from the Crown Prosecutor at the conclusion of the Crown closing address as to the evidence relied upon by the Crown with respect to the element of deprivation of liberty. The Crown submitted that reliance was placed upon the body of evidence concerning the taking of the complainant from the street and the commission of a series of sexual assaults by a number of men in the Eveleigh Street premises in the first room in support of its case against the Appellant on this element. Defence counsel did not object nor express surprise at this statement. Defence counsel had not, at that stage, embarked upon her closing address to the jury. Accordingly, defence counsel was aware of the factual and legal basis upon which the Crown put its case in this respect before she came to address the jury. Defence counsel touched upon this issue in her closing address relatively shortly. This was understandable. The Defence case was that the Appellant was not in the house at all and reliance was placed upon alibi evidence. As I have already mentioned, no objection was taken to the trial Judge directing the jury concerning the concept of joint criminal enterprise before, during or after the summing up, nor was any further direction sought by defence counsel on that issue. No complaint is made on the present appeal concerning the content of the direction given to the jury on joint criminal enterprise. 50 Although some question had been raised by defence counsel concerning the evidence relied upon by the Crown with respect to the element of being in company, this issue had been clarified prior to the commencement of closing addresses. 51 It was clear from the Crown closing address that the Crown relied upon evidence surrounding the taking of the complainant from the street, and her detention in the first room of the Eveleigh Street premises whilst sexual assaults were perpetrated upon her by several men, in support of the element of deprivation insofar as it applied to the Appellant. The evidence of events in the first room was admissible in the trial of the Appellant and, in my view, would have been admitted even if he was being tried alone. 52 The development in the trial about which the Appellant now complains was the introduction of the concept of joint criminal enterprise in directions to the jury. It is one of the functions of the trial Judge to ensure that appropriate directions of law are given to a jury with respect to the issues falling for determination at a particular trial. His Honour clarified the question with the Crown, in the absence of the jury and before the defence closing address, and proceeded to direct the jury accordingly without objection from defence counsel. 53 It has not been demonstrated that the trial Judge left a case to the jury which had not been relied upon by the Crown. In any event, simply because a trial Judge leaves to the jury a case or arguments not relied upon by the Crown (which is not this case), it does not follow that there has of necessity been a miscarriage of justice, nor is it such a defect in the trial that Rule 4 cannot apply. If, by putting an argument or a case to the jury that was not put by the Crown, some real unfairness has arisen to the accused, it is difficult to imagine that defence counsel would not object: Smale v R at [97]. 54 I would reject the submission that there has been a denial of procedural fairness in this case. 55 Likewise, I do not accept that any substantive unfairness to the Appellant resulted from the circumstances of this trial. The central defence in this trial was one of alibi, that is the Appellant was not in the Eveleigh Street premises and did not sexually assault the complainant at all. It has not been demonstrated that it was unfairly prejudicial to the Appellant, or otherwise erroneous, to have the evidence of events in the first room before the jury at the Appellant's trial. The direction of law with respect to joint criminal enterprise was one which arose from the evidence adduced in the trial. Defence counsel had notice of the Crown's case on this issue and did not object or otherwise complain to the trial Judge. It has not been demonstrated on appeal that the Appellant was unfairly prejudiced in any way so that this Court ought conclude that a miscarriage of justice has resulted. 56 I would decline the Appellant leave under Rule 4 to rely upon Ground 3 but, even if leave was granted, I would, in any event, reject that ground of appeal.

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Ground 2 - Failing to Withdraw from the Jury the Picture Identification Evidence 57 On 31 August 2006, the fourth day of the trial, the Crown adduced evidence from the complainant, without objection, concerning photo identification by the complainant of the Appellant (see [14] above). The photo array was tendered without objection (T201). Counsel for the Appellant cross-examined the complainant on 4 September 2006 concerning the photographic identification and the complainant agreed that the only person in the photographs with dreadlocks was the Appellant (T319-320). 58 On 11 September 2006, the eleventh day of the trial, defence counsel made application to the trial Judge to withdraw the photographic identification from the jury and to abort the trial (T569-570). The main thrust of the defence application was that the probative value of the photo identification was significantly outweighed by the dangers of unfair prejudice to the Appellant so that the evidence ought be rejected under s.137 Evidence Act 1995. The trial Judge refused the application (Judgment, 11 September 2006). 59 In his reasons for refusing the application, the learned trial Judge noted the defence argument concerning the displacement effect. It was argued that the complainant had given evidence that she was sexually assaulted by an Islander man in a poorly lit room where she was forced to perform oral sex on that man. Reliance was placed upon evidence that suggested that the complainant did not get a good look at the man's face at that time. When the complainant saw a man in the street a couple of days later, she recognised him as being one of the men who had earlier sexually assaulted her. This identification occurred in daylight. Defence counsel suggested that there was a possibility that when the complainant chose the photograph of the Appellant from those that were shown to her, what she was in fact doing was identifying the person she saw in the street, rather than the person who was sexually assaulting her. In the course of his reasons for refusing the application, the learned trial Judge stated his intention to direct the jury with respect to the displacement effect, and to give other directions to the jury concerning the need for special caution in considering the identification evidence. His Honour stated (Judgment, page 3): "Thus, although the displacement effect is a matter which does reduce the probative value of the evidence, it is not a matter which causes unfair prejudice to the extent that the evidence should be excluded. As I have attempted to suggest, the displacement effect can be easily explained to jurors who will then understand how it affects the probative value of the photographic identification." 60 His Honour foreshadowed giving the jury appropriate directions concerning the fact that the Appellant was the only person in the photograph array with dreadlocks and also concerning the "rogue's gallery effect" (T3-4, 11 September 2006). In circumstances where such directions were to be given to the jury, his Honour concluded that he was not satisfied that the probative value of the photographic identification evidence was outweighed by the danger of unfair prejudice to the Appellant.

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Determination 72 His Honour referred to the psychiatric and psychological evidence at a number of points in his remarks on sentence (ROS 8-12): "The offender is a person who has a number of difficulties as far as his mental abilities are concerned. He is unable to read and write and has difficulties communicating. A psychologist's report prepared in 1995 suggests that the offender functions in the moderate range of intellectual disability. On top of that, the offender has been hearing voices for some time and is now treated whilst in custody with antipsychotic medication. These two factors suggest that when assessing the appropriate sentence to impose on the offender less emphasis should be placed on general deterrence than would otherwise be the case. They also suggest that the offender's time in custody will be harder than if he were psychiatrically well and did not have any intellectual disability. Further, the offender has previously been assaulted whilst in gaol. The fact that the offender's time in custody will be harder than usual is a very important factor which suggests the imposition of a non-parole period less than the standard. There are, of course, other factors in this case suggesting the imposition of a non-parole period less than the standard. Those other reasons are to be found elsewhere in these remarks on sentence. … One of the issues raised during the hearing of the sentencing proceedings concern the relationship, if any, between the offender's psychiatric condition and his offence. Nothing in the material presented to me suggested any connection at all. For example, there is no suggestion that the voices told him to abuse the complainant in the way he did, nor was there any evidence that because of his psychiatric condition he was less able to make appropriate decisions about his conduct that night. There seems to be no connection between the offender's psychiatric illness and his moral culpability at all. … It is a fundamental rule of sentencing that the sentence needs to reflect the objective gravity of an offender's conduct. The standard non-parole period in a case where there was not a plea of guilty can only be departed from when a judge has given specific reasons for such a departure. As I said, I am satisfied that the offence is objectively in the middle of the range of objective seriousness, but I will not impose a non-parole period as long as the standard. Primarily that is because of the offender's mental difficulties, but the other reasons I have mentioned also in my remarks on sentence. I will make a small adjustment to the relationship between the non-parole period and the head sentence to make a finding of special circumstances in the offender's favour. That small adjustment is related to the offender's intellectual disability and problems with psychosis. But I have to recognise that I have already taken those factors into account in setting the non-parole period in the head sentence, and so to give significant weight in finding special circumstances would be to double count. I have to also - and this is perhaps the most important constraint on the non-parole period - to recognise that the non-parole period itself has to reflect the objective gravity of an offender's conduct." 73 In approaching the use of psychiatric and psychological evidence on sentence, it is necessary to bear in mind the observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68 that it would be erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.

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74 The existence of a mental illness or other psychiatric condition, where causally related to the offence committed, can be relevant to the assessment of the offender's moral culpability. Where mental illness contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced and there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: R v Israil [2002] NSWCCA 255 at [23]; R v Hemsley [2004] NSWCCA 228 at [33]; R v Hamid (2006) 164 A Crim R 179 at 197 [94]. 75 The challenge contained in Ground 4 involves a challenge to a finding of fact made by the learned sentencing Judge. His Honour had regard to the psychiatric and psychological evidence and was not satisfied, in the circumstances of the present case, that any connection had been established between the Appellant's psychiatric condition and his commission of this offence. 76 This Court is bound by the findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505: R v Khouzame [2000] NSWCCA 505 at [33]-[41]; R v Merritt (2004) 59 NSWLR 557 at 573 [61]. There was, of course, a practical difficulty facing the Appellant given his denial of the commission of the offence in advancing a submission that his mental state had, in some way, contributed to the commission of the offence. Nevertheless, his Honour considered the submission on its merits and rejected it. There was no direct evidence before the sentencing Judge as to whether any condition from which the Appellant suffered was causally related to the commission of the offence. Nor was his Honour required to draw an inference favourable to the Appellant on this issue. 77 No error has been demonstrated in his Honour's finding that no connection had been demonstrated between the Appellant's psychiatric condition and his commission of this offence and thus his moral culpability for the offence. I would reject Ground 4. 78 With respect to Ground 5, it is apparent that his Honour gave careful consideration to the psychiatric and psychological evidence for the purpose of determining sentence. His Honour had regard to that evidence, in the Appellant's favour, both in fixing the non-parole period and in finding special circumstances. 79 In my view, it has not been demonstrated that his Honour erred in failing to give adequate weight on sentence to the Appellant's psychiatric condition. To the contrary, his Honour took these matters into account in the exercise of sentencing discretion for a most serious crime for which the Appellant was to be sentenced. I would reject Ground 5. 80 I propose the following orders:

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Cases Cited (11)