R v Barrett [2007] VSCA 95

1 I have had the considerable advantage of reading in draft the reasons for judgment of Eames JA. I agree that the application should be disposed of in the way his Honour proposes, and for the reasons which his Honour gives.

2 The applicant, Robert Clifford Barrett, was convicted by verdict of a jury of the murder of his de facto partner, Jennifer Lorraine Brodhurst, who was aged 29 at the time of her death.

3 At 2.11 am on 11 June 2003 the applicant telephoned 000 and requested an ambulance stating that a woman had stopped breathing. He told the operator that the woman had been assaulted in St Kilda "the other night" and that she had not wanted to go to hospital but had been trying to recover by herself over the past few days but had then stopped breathing. A second phone call a few minutes later was also recorded and on that occasion the applicant said that his de facto had been assaulted at St Kilda on Saturday night and had just become unconscious. An ambulance officer who attended a few minutes later found at the house not only the applicant but also his parents. When police attended the applicant was crying and he was asked by Senior Constable Holly "Did you do it?" to which he said "No". He did not appear to be influenced by any drugs and was lucid, albeit crying and sobbing. That conversation was overheard by Constable Anne Marie Logan.

4 The medical evidence disclosed that over a period of some days prior to her death on Wednesday 11 June 2003, Ms Brodhurst had suffered many injuries consistent with blows and wounds from fists, pieces of wood, a knife and other trauma. Throughout the house in which the couple had lived there were bloodstains and blood spatter in many rooms, attempts having been made to clean some of the surfaces in the rooms. At the scene a knife was located and upon examination DNA of both the deceased and the applicant was found on the handle. Pieces of wood

were found. Blood-staining was found on a motorcycle helmet which matched the DNA profile of the deceased.

5 Expert witnesses had difficulty determining the precise cause of death but the forensic pathologist, Dr Matthew Lynch, who conducted the autopsy, identified a subdural haematoma as being very significant. He also found some 22 further injuries, including fractures to the right and left fourth ribs, a fracture of the left index finger, bite marks and various injuries consistent with a fist, a kick or a fall to the floor. The rib fractures were of different ages, suggesting that blows had been struck over a period of a few days prior to death.

6 Dr Lynch concluded that the cause of death should be described as multiple injuries, in a woman with potentially toxic levels of methylamphetamine, tramadol and oxazepam and who was suffering dehydration and renal impairment. Tramadol was an analgesic, which had been administered to toxic levels. The drugs found in the deceased's body were regarded by Professor Olaf Drummer, a toxicologist, as being capable of causing death, taken either in combination or independently from each other and whether or not the drugs were considered separately from the physical injuries. In particular, the quantity of tramadol in her body was enough to cause an overdose.

7 Evidence before the jury suggested that the applicant's mother had been present at the house over some days prior to the death of Ms Brodhurst. The applicant's mother had some qualifications in nursing. It was the Crown case that the applicant and his mother, rather than taking Ms Brodhurst to hospital for treatment of her injuries, had endeavoured to nurse her and at the same time attempted to clean up the house.

8 The applicant was a large and solidly-built man. The deceased weighed 47 kilograms at death and was 147 centimetres tall (that is, less than five feet). When her body was examined a number of old injuries and scars were found.

9 There was a history of violence on the part of the applicant against Ms Brodhurst. On many occasions prior to her death she had suffered injuries requiring medical attention and had been placed in crisis accommodation in a women's refuge. Evidence was led, by agreement with defence counsel, of episodes of violence in the 12 months prior to the death of Ms Brodhurst. The evidence disclosed that she was in fear of the applicant and on some 24 occasions over a 12 month period had attended upon medical practitioners, staff of crisis centres and other people when displaying signs of injuries which had been caused by the applicant. On 19 March 2003 the deceased obtained an intervention order from the Dromana Magistrates' Court but failed to appear on the later hearing which was required in order to convert the interim order to a final intervention order.

10 After being detained by police the applicant was taken to Cranbourne police station where he was interviewed and told police that he had taken four Xanax tablets prior to his arrest. He made no complaint about drowsiness or otherwise being affected. At 5.45 am that morning he was advised by Sergeant Logonder that he was under arrest, whereupon after being cautioned the applicant said "Sorry, it was jealousy". The applicant said he had spoken to a solicitor. He was taken to the St Kilda Road Police Complex and upon arrival said to Logonder "I'm going to miss her. We've been together for years. I didn't mean it, just like last time. I thought she'd just get better. You know, my mum's a nurse; you know, I just get jealous." Logonder, having learned that the applicant had a psychiatric history, had him examined by Dr Marginean, who assessed him as capable of being interviewed.

11 The applicant did not give evidence in his defence but his mother was called as a witness and she gave a history of her son attending psychiatrists. She declined to answer any questions about the weekend prior to Wednesday 11 June 2003, invoking privilege against self-incrimination. She agreed that she had performed CPR on the deceased on 11 June and declined to say whether she was present at the house on 6, 7 or 9 June.

12 There were two live issues in the trial. First, whether it was proved that the applicant had caused any injury to the deceased and, the related question, whether, if so, that or those injuries were a substantial cause of death. The second issue was whether if any injury caused by him was a substantial cause of death, it was inflicted with the relevant intention to be convicted of murder. As to the lack of intention, evidence was led on behalf of the defence suggesting that the applicant was a heavy user of amphetamine, thus raising the possibility that he may have suffered a drug induced psychosis, which would have deprived him of the capacity to form the relevant murderous intention.

13 The Crown prosecutor sought a conviction primarily on the basis that the applicant caused injuries which were a contributing cause of the death when he acted with an intention to cause really serious injury, rather than with an intention to kill. The prosecutor also sought a conviction on the alternative basis of reckless murder.

Grounds of appeal

14 The full statement of grounds reads as follows:

2. The learned trial judge erred by allowing reckless murder to be left to the jury.

3. The learned trial judge erred in his directions concerning reckless murder.

4. The learned trial judge erred in his ruling as to the items of evidence that were capable of demonstrating a consciousness of guilt on the part of the applicant.

5. The learned trial judge erred in his directions as to consciousness of guilt.

6. The learned trial judge erred in his rulings as to the admissibility of the opinion evidence of Dr Moloney and portions of the opinion evidence of Dr Jager.

7. There has been a miscarriage of justice by reason of the admission into evidence of the applicant's record of interview, including the 'no comment' answers.

8. Alternatively to ground 7, the learned trial judge erred in failing to exclude certain questions and answers from the applicant's record of interview.

9. There has been a miscarriage of justice by reason of the failure of the Crown to call as witnesses the applicant's parents.

10. The learned trial judge erred in upholding the claims of privilege against self incrimination by the applicant's parents."

On the hearing, application was made to add an additional ground of appeal, to read as follows:

"11. The learned trial judge erred in his directions to the jury concerning the partial defence of provocation." (directions at T1673-T1674)

Grounds 7 and 8: The record of interview

15 Prior to being interviewed on videotape the applicant had taken legal advice, and in the course of the interview he gave a great many "no comment" answers to questions put to him by investigating police. He did, however, answer most of the more than 300 questions put to him. At the trial senior counsel who then appeared for the applicant did not seek an order for the exclusion of the record of interview in its entirety, either on grounds of voluntariness or fairness. Instead, the prosecutor and defence counsel, in advance of trial, reached agreement as to the exclusion of a number of questions and answers.

16 As to the remaining questions and answers, defence counsel took specific objection only to the admission of questions and answers 237-243, on the basis that those "no comment" answers had no probative value at all. Defence counsel conceded that questions 235 and 236 were properly admitted. Questions and answers 235-247 read as follows:

"Q235 Okay. Robert, wish to put to you various items that were located as - as a result of a search at your house, this morning.

A Yes.

Q236 And, first of all, a knife and a portion of wood was found underneath the main bed.

A Yes.

Q237 What do you have to say in relation to those items?

A No comment.

Q238 Okay. I put it to you that those items belong to you. What do you say to that?

A No comment.

Q239 Okay. There was a section, another section of broken wood found in a bin outside in the yard. What do you have to say to - in relation to that object?

A No comment.

Q240 Also located in a bin outside was a bloodstained newspaper and bloodstained sponges in the bin. What do you say - what do you have to say in relation to those items?

A No comment.

Q241 And also I've been informed that a bottle of bleach - sorry, 2 bottles of bleach were located in a bin, and documentation showing that one of those bottles was purchased on - at Coles, on Monday, the 9th of June. What do you have to say in relation to that?

A No comment.

Q242 I put it to you that those items in relation - in - specifically, the bleach was used, and purchased recently, to clean up blood at the actual household. What do you say to that?

A It could have been to clean anything. It could have been to clean the laundry. Anyway - no comment.

Q243 What - what can you tell me about what that was used for then?

A What do you use bleach for?

Q244 Yeah.

A It's not made for cleaning blood, is it?

Q245 What did you - what was it used for, in this instance?

A Mum helped me clean up the bathroom. You can smell the bleach in the bathroom - or you could.

Q246 Okay. When did your mother help you clean that bathroom?

A I don't know. I'm that lost.

Q247 Okay. Why - why, what's up with the bla-, bathroom need a clean?

A I don't know. No comment. No comment. No comment. Can I just be put in a cell?

Q248 I understand, once again, you - you - you can exercise your rights . . .?

A. I haven't eaten in - in days. I haven't sat down in days. I haven't even got clothes on."

17 His Honour ruled that the questions and answers 237-243 ought be admitted because the answers at questions 242-245, on which the prosecutor sought to rely, were relevant and probative and those answers were not comprehensible without being read with the questions and answers ranging between 235 to 249. As an additional basis for admission of these answers, his Honour said that he would not, at that stage, rule against the proposed use that the prosecutor intended to make of the record of interview in support of his contention that the interview as a whole, including the questions and answers between Q 235 to 249, revealed "a pattern of selective answering and responses revealing a consciousness of guilt of the nature dealt with in Woon v The Queen".[1]

18 In making his ruling as to the admissibility of the questions and answers 237-243 his Honour observed that there were numerous other instances of "no comment" answers in the record of interview to which objection had not been taken by defence counsel. Indeed, defence counsel expressly asked that many other "no comment" answers be retained, presumably for tactical reasons. It is against the backdrop of those tactical decisions that we need to assess the merit of the contention that the retention of questions and answers, 237-243, out of more than 300 asked during the interview, produced a miscarriage of justice.

19 On the appeal Mr Holdenson, senior counsel for the applicant, who did not appear at trial, accepted that the record of interview was properly admitted at the time his Honour so ruled, but he submitted that its subsequent use by the prosecutor occasioned unfairness, and his Honour should then have revisited his ruling. Mr Holdenson submitted that the prosecutor had invited the jury to look at, and evaluate, the whole of the record of interview so as to infer from the manner and substance of the applicant's answers that he was acting with a consciousness of guilt. That approach invited the jury to make impermissible use of "no comment" answers, Mr Holdenson submitted.

20 Mr Holdenson conceded that the learned trial judge gave correct directions to the jury to the effect that they were not permitted to make use of "no comment" answers for any purpose adverse to the applicant. He conceded, too, that the prosecutor also warned the jury not to misuse the "no comment" answers. Notwithstanding those warnings, it was inevitable, Mr Holdenson submitted, that the jury would make improper use of the "no comment" answers, because it was impossible to evaluate the extent to which the applicant's manner displayed consciousness of guilt when answering questions unless the jury also had regard to his "no comment" responses.

21 Mr Holdenson submitted that once the prosecutor had adopted the approach he did in his final address his Honour ought to have excluded the record of interview, in its entirety, from consideration by the jury for purposes of assessing consciousness of guilt, or else he should have discharged the jury.

22 Mr Holdenson conceded that he faced a difficulty in contending that a miscarriage of justice had occurred in these respects, in that no exception was taken by defence counsel to the judge's directions in this respect and no application was made to the judge to either confine the use of the record of interview or to discharge the jury. Those omissions at trial will generally be taken to indicate that injustice was not perceived at the time and provide a pointer to the conclusion that no miscarriage of justice in fact occurred.[2]

23 The complaint under this ground was argued together with that raised under grounds 4 and 5. Mr Holdenson submitted that, even if it could not be said that the mere inclusion of the answers to questions 237-243 constituted a miscarriage of justice, a miscarriage did result when those answers were taken together with all of the other "no comment" answers in the record of interview, all of which had been highlighted by the prosecutor when addressing the jury as to consciousness of guilt.

24 It is convenient, therefore, to discuss grounds 4 and 5 before returning to the express complaint concerning the admission into evidence of answers to questions 237-243.

Ground 4: Items identified as capable of establishing consciousness of guilt

25 The learned trial judge ruled that four items of evidence were capable of being used as evidence of consciousness of guilt. His Honour subsequently directed the jury that the manner in which the applicant conducted himself during the record of interview was also relied on as an item capable of supporting consciousness of guilt reasoning. In the hearing before us Mr Holdenson appropriately confined the complaint under ground 4 to the use that was made of the record of interview.

26 In his final address the prosecutor invited the jury to look at the videotaped interview and to "look carefully at how he conducts himself in the interview and the answers he makes, and what I say is that when you look at the way he conducts himself, how he answers questions, in particular some questions, it reveals in itself what we call a consciousness of guilt". The prosecutor then directed the attention of the jury to questions and answers 235 to 247, reading out each of the "no comment responses" as well as the responsive answers. The prosecutor suggested to the jury that the responses in the interview revealed that the applicant had knowledge of the crime and was trying to conceal it, and that he was being "devious". The prosecutor invited the jury "to look at the whole of the interview in its context and these particular passages".

27 The prosecutor more than once told the jury that they could not draw any adverse inference from a "no comment" response, as it was the applicant's right to decline to answer. The judge also emphatically directed the jury that "no comment" answers could not be used to support a consciousness of guilt inference. He told the jury that in considering whether the record of interview demonstrated consciousness of guilt they could have regard to "the answers that he did give", but not to his "no comment" responses.

28 In my opinion (and subject to what I later say about the need for further directions to have been given), the record of interview was capable of supporting a consciousness of guilt inference. I agree with Mr Holdenson, however, that its use for the purpose of assessing whether the applicant was being deliberately evasive carried a high risk of the jury comparing his responsive answers with his non-responsive ones. That risk, it might be thought, was highest in connection with questions 237-243, the very questions which were highlighted by the prosecutor in his address.

29 The complaint about the potential misuse of "no-comment" answers in the tendered record of interview is a significant one, but the directions by the judge, as is conceded by Mr Holdenson, were firm, clear and unequivocal. There is nothing which indicates that the jury would have disobeyed the directions, given by the judge not once but several times in his charge, and repeated again when he summarised the prosecutor's address.

30 In my opinion, neither ground 7, which complained about the admission of "no-comment" answers in the record of interview, nor ground 8, which, in the alternative complained about the failure to exclude, at least, answers 237 to 243, has been made good. Trial counsel did not seek exclusion of any answers except those between 237 and 243, and as to those his Honour's reasons for retaining them have not been shown to betray error. In my opinion, having regard to his Honour's directions as to its use, the tendering of the record of interview in the form in which it went to the jury has not been shown to have caused a miscarriage of justice.

31 Ground 4, as confined during argument, complained that the jury should not have been permitted to regard the record of interview as capable of sustaining an inference as to consciousness of guilt. In declining to exclude the record of interview from use for consciousness of guilt reasoning, his Honour said that he had viewed the videotape. We have not had that advantage. It may be that in some circumstances the conduct of an accused person, as captured on videotape, would support a conclusion by jurors that it demonstrated consciousness of guilt. However, occasions when guilt could be proved by demeanour displayed during a record of interview would be rare indeed, having regard to the unreliability of demeanour as proof of the state of mind of any person, let alone as proof of guilt of a criminal offence. The dangers of misinterpretation of such conduct are well recognised.[3]

32 That is not to say that the assessment by jurors of the credibility of witnesses is not influenced by the appearance and demeanour of witnesses; inevitably it must be, but jurors are given a general warning about their observations of witnesses, to make allowances for stress and other factors which might bear upon their composure. It is quite a different matter to suggest that the guilt of the accused could be proved by demeanour alone, which is the conclusion that the jury were invited to reach by means of consciousness of guilt reasoning.

33 Given the conclusion I have reached as to ground 5, it becomes unnecessary to express a final conclusion on ground 4, which complained that the record of interview was not capable of supporting consciousness of guilt reasoning. That is so because even if the record of interview could have been used for that purpose, the directions which accompanied its use by the jury were inadequate, in my opinion.

Ground 5: Directions as to consciousness of guilt

34 Mr Holdenson submitted that it was not open to a jury to infer consciousness of guilt from the fact that an accused selectively exercised his right to decline to answer questions. So much may not be doubted: see R v McNamara;[4] R v Smith Ashford and Schevella;[5] R v Russo.[6] In my opinion, however, the prosecutor did not seek to make use of the record of interview in that way but, rather, invited the jury to draw an inference of consciousness of guilt from the content of the answers - other than no comment answers - which he gave. The prosecutor contended that the manner in which he gave those answers was evasive, and that he had unwittingly disclosed a knowledge of the circumstances of his partner's death that he was not prepared to acknowledge directly. Such use, in my view, was consistent with the approach approved by the judges in Woon's case.[7] The directions given as to the use to be made of the record of interview were adequate to address the risk of misuse of the "no comment" answers, in my opinion. There were, however, other dangers about which the jury had to be warned.

35 His Honour prefaced his directions, as noted above, by warning the jury not to misuse "no comment" answers. He said, however, that they could, if they wished, find in the answers that he did give "unintended proof that the accused was afflicted with a consciousness of guilt", and said that upon watching the video and listening to the audio tapes they should ask themselves whether "there are indications of guilt there, even if the answers are denials or are explanations". Mr Holdenson coupled that direction with the prosecutor's invitation to the jury to "look at the way he conducts himself" during the interview. Mr Holdenson submitted that the jury were being invited to conclude from the demeanour of the applicant that he was behaving the way a guilty man would behave.

36 Even if the videotape was capable of bearing that inference, as I shall presume to be the case, this was a case, like Favata,[8] in which the jury ought to have received a very clear warning about the dangers of drawing such an inference from demeanour. No warning, at all, was sought or given as to this danger. The jury should have been warned by the judge to be cautious about placing undue weight on the demeanour of the accused as an indicator that he believed himself to be guilty of any offence. Among other relevant matters, the jurors should have been warned to have regard to the possibility that, when interviewed, the applicant was under the influence of drugs or may have been affected by tiredness or exhaustion; they should have been directed not to speculate about what would be the 'normal' reactions of a person subjected to the pressures of such an interview, whether the allegations be true or false. The jury should have been directed that a conclusion - based on demeanour displayed during such an interview - that a person displayed consciousness of guilt in such circumstances might be very unfair and could amount to a reversal of the onus of proof.

37 Without such strong directions, the invitation to place reliance on demeanour in the record of interview so as to infer consciousness of guilt carried a high risk of injustice. I would uphold the complaint about the inadequacy of the directions on this basis.

38 There was a further complaint made about the adequacy of the directions, one which was not sustained, in my opinion, but which requires discrete consideration.

Consciousness of guilt directions in light of R v Ciantar

39 The written submissions under ground 5, which were filed some ten months before the hearing before us, raised an additional complaint about the direction concerning consciousness of guilt. This case was decided before the Court of Appeal gave its decision in R v Heyes[9] and the ground of appeal (and written submission in support of the ground) was based on that decision. That decision, however, was later overruled by the decision of a court of five judges in R v Ciantar.[10] In argument it was contended that the direction given also failed to meet the requirements of Ciantar.

40 In Heyes Buchanan and Vincent JJA held[11] that, where post-offence conduct was equally capable of supporting an inference of consciousness of guilt of having performed acts which amounted to unlawful and dangerous act manslaughter as of supporting an inference of consciousness of guilt of having caused death with an intention to kill or cause really serious injury, it was not open for the jury to draw the inference of consciousness of guilt of murder from that evidence.

41 In Ciantar, the Court held[12] that if an innocent explanation of post-offence conduct was so inherently likely, or if the conduct was intractably neutral, then the conduct should not be left to the jury as capable of demonstrating consciousness of guilt, at all. Here the evidence did not have that deficiency.

42 However, the Court held in Ciantar, contrary to what had been held in Heyes, that if the presentment contained a count which carried an included alternative count - as was the case here, with manslaughter being the included alternative count - then it was a matter for the jury to consider a range of options when assessing whether the post-offence conduct demonstrated consciousness of guilt. They should consider whether the conduct displayed consciousness of guilt of the charged offence, or of the included offence, or of some other matter not amounting to proof of any offence at all, but perhaps relevant to an issue in the case. The jury were not to be precluded from applying consciousness of guilt reasoning just because there were alternative offences open on the presentment to which the consciousness of guilt might relate.

43 The Court held in Ciantar that the trial judge was obliged to direct the jury as to the precise basis on which the conduct was relied upon by the Crown and to direct that, when considering whether the conduct demonstrated consciousness of guilt, they should not conclude that it related to guilt of the primary charge unless they were satisfied that the other explanations could be excluded.[13]

44 In this case his Honour primarily spoke of consciousness of "guilt" rather than guilt of "this offence" or "murder". However, his Honour did direct the jury, variously, that they may use the evidence as proof "that the accused acknowledged the commission of the crime under consideration", and also as to: "guilt of the commission of the crime"; or whether "he is trying to cover up what has happened in the house"; or displayed "awareness that he was guilty"; or "that the truth would convict him".

45 In his directions his Honour stated clearly that defence counsel contended that the alternative explanation might be that his conduct reflected consciousness of guilt about having caused the injuries, without that amounting to consciousness of guilt that he intended to cause death or really serious injury. His Honour repeated that the jury would have to exclude the possibility that his consciousness of guilt was that he was responsible for the injuries, rather than consciousness that he had murderous intention or, else, consciousness that the injuries he caused were a cause of death.

46 In my opinion, although his Honour did not have the benefit of the decision in Ciantar, and did not therefore precisely follow the approach there suggested, the direction which he gave more than adequately adopted the approach which was held by the Court to be appropriate when addressing the jury. In my view, the jury would have understood that they had to exclude the explanation that the accused's conduct displayed consciousness of guilt not of murder but of what amounted to manslaughter, or some other offence, or else merely displayed consciousness of his responsibility for something falling short of an offence.

47 I would reject this basis for complaint under ground 5.

Ground 2: Reckless murder

48 For an accused person to be convicted of murder by application of the concept of malice known as reckless murder the jury must be satisfied that when he did the act or acts causing death, the accused knew that it was probable that his action would cause death or really serious injury to the victim.[14]

49 It is quite rare for reckless murder to be left to a jury and appellate courts have strongly discouraged prosecutors from relying on that basis for a murder conviction.[15] As Barwick CJ held in La Fontaine v The Queen[16] (approving statements in R v Sergi[17]), if the issue is to be placed before the jury, at all, the facts of the case must make it necessary to do so, in a practical sense.

50 There are sound reasons why the courts are reluctant to permit reckless murder to be left to a jury.[18] As Barwick CJ observed in Pemble v The Queen[19] (and see, too, the judgment of Buchanan JA in R v TY[20]), the danger which the concept creates is that the jury might reason that the accused had, in fact, contemplated that death or really serious injury would be the probable consequence of his action merely because they thought that a reasonable person in his position would have foreseen one or other of those consequences as probable. As Buchanan JA observed in TY, the elements of reckless murder may cause particular confusion for a jury where, in addition to directions on that topic, the jury must also be directed by the trial judge as to murderous intention by way of intention to kill or to cause really serious injury and, additionally, directed as to the elements of unlawful and dangerous act manslaughter.[21] In this case directions were given on all of those topics.

51 As has been emphasised many times by appellate courts, juries should receive instructions only on such matters as are necessary for them to know in order to decide the real issues in the case before them.[22] It is essential that directions to a jury not be over-complicated by the trial judge, and to that end unnecessary directions should not be given at all. All that said, however, there may be cases where, to adopt the words of Barwick CJ in La Fontaine,[23] it is "both necessary and appropriate in the circumstances of the case" to place the issue before the jury.

52 In this case, were the jury to accept that the applicant caused only some of the injuries and - as had been the case on other occasions during the relationship - without the injuries which he caused amounting, individually, to really serious injuries, then the jury might have been persuaded that there was a reasonable doubt as to murderous intention accompanying the infliction of any of the injuries. On the other hand, as the prosecutor contended, given the great number of injuries suffered by the victim, the duration of the violence to which she had been apparently exposed, her small size in comparison with the build of the applicant and the history of previous assaults, it would be open to the jury to conclude that the applicant knew it was probable that his assaults on her would cause her really serious injury and that he continued notwithstanding that awareness. Thus, I am persuaded that it was open to the trial judge to have concluded that it was appropriate to leave reckless murder to the jury. In the course of the hearing of this application, Mr Holdenson, senior counsel for the applicant, conceded that to be the case. That was a proper concession, responsibly made by counsel.

53 Accordingly, I reject this ground of appeal.

Ground 3: Directions as to reckless murder

54 The dangers that accompanied the introduction to the trial of reckless murder meant that considerable care had to be taken to avoid jury misunderstanding, especially as to the differences between reckless murder and unlawful and dangerous act manslaughter. Counsel for the applicant submitted that the directions on reckless murder were deficient in three important respects.

55 The first problem related to a repeated slip of the tongue by the judge. His Honour provided to the jury a written summary of the elements of the crime of murder which, in addressing reckless murder stated, correctly, that the Crown had to prove that the accused committed fatal acts knowing that they would probably cause death or "really serious injury".

56 When he first spoke of "intention" his Honour correctly spoke of "really serious injury" but a few pages later in his charge he directed that the jury had to be satisfied that the Crown had excluded the possibility that:

" . . . the accused had not formed the requisite intention to kill or cause really serious harm, or to have knowledge that death or serious injury was the probable consequence of his actions." [my emphasis]

57 The omission of "really" before "serious injury", when referring to reckless murder, was an error which was later repeated when his Honour directed the jury specifically as to reckless murder. His Honour provided a document which summarised some of the legal directions and correctly used the words "really serious injury". In his Honour's oral directions he first used that phrase four times, but thereafter the word "really" was omitted from the oral directions. His Honour spoke of "serious" injury on some ten occasions in the space of about two pages of transcript. Whilst he later, at times, used the correct words in the charge, he also made the same slip occasionally.

58 The additional emphasis which "really" introduces has been held to be not inconsequential. As was noted by Mason CJ Toohey, Gaudron and McHugh JJ in Wilson v The Queen,[24] the distinction between unlawful and dangerous act manslaughter and murder might be blurred in the minds of jurors if the additional word was not reserved for murder. The significance of the omission of the word "really" is heightened when regard is had to the second and third complaints about the directions - which also concern the dangers of confusion of the elements of murder with the elements of manslaughter - which derive from observations made by Barwick CJ in Pemble.

59 The second complaint raised under ground 3 about the directions, concerns a matter identified in Pemble.[25] In that case the trial judge directed the jury to consider whether the accused showed "reckless indifference" to the consequences of his acts. Barwick CJ held that it was necessary that the directions firmly emphasise that it was the actual state of mind of the accused that mattered; it was not a question of what, objectively, a reasonable person might have foreseen. The Chief Justice noted how easily the mind of the jury might slip from inadvertent negligence to recklessness, thus substituting objective tests of a reasonable man for the subjective requirements of recklessness. As Buchanan JA noted in TY,[26] the danger of confusion between the mental element required for reckless murder and that required for manslaughter by unlawful and dangerous act was such that the judge ought to have expressly drawn the attention of the jury to that distinction. He held:

"The jury should have been warned not to conclude that the applicant foresaw the probability of death or really serious injury because they thought a reasonable man would have appreciated the same danger".

60 In the present case his Honour's oral direction on reckless murder (in which the omission of "really" occurred so frequently) was immediately followed by a direction on manslaughter by unlawful and dangerous act. There was a separate sheet handed to the jury setting out the elements for manslaughter. His Honour noted that the "intention element" does not apply to manslaughter; the act had to be unlawful and dangerous. His Honour directed the jury as to "dangerous":

"What that means is that a reasonable person in the position of the accused would realise that he was exposing the deceased to an appreciable risk of serious injury. So it is that a reasonable person in the position of the accused would have realised that what he was doing would expose the deceased to an appreciable risk of serious injury. It is not a question of what the accused actually thought. It is what a reasonable person in his position would have realised."

61 That is a correct statement of the elements of manslaughter but it emphasises how easily it might be confused with the subjective intention required for reckless murder, and how easily might the distinction between "really serious injury" and "serious injury" be blurred. Thus, a direction in terms suggested by Buchanan JA[27] was necessary in this case, but was not given.

62 The third complaint raised under ground 3 about the directions on reckless murder related to a further matter highlighted by Barwick CJ in Pemble. The Chief Justice emphasised that in assessing the accused's state of mind the jury should be directed as to circumstances that might bear on that: in particular, factors such as his age and background, educational and social circumstances, his emotional state, and his sobriety. In addition, as Barwick CJ held[28], the charge must also have assisted the jury as to the facts relevant to their assessment of the state of mind of the accused. The necessity to relate the facts to the law in those ways was confirmed by the Court in TY.[29] The directions here did not relate the evidence to the issues in the way required by Barwick CJ.

63 Mrs Quin submitted that, although the judge failed to use the language required by Pemble, the jury did have placed clearly before them all of the circumstances which would have borne on the question of the intention of the accused. Furthermore, although the directions were not expressly related to the issue of reckless murder, the jury would have understood them to have been so relevant.

64 The directions on reckless murder given by his Honour appear to have followed closely the standard directions contained in the Judge Kelly Charge Book. His Honour directed the jury:

"If a person does an act knowing that death or serious injury is a probable consequence, he does the act expecting that death or serious injury will be the probable result. That state of mind is comparable with an intention to kill or do serious injury, and is sufficient to satisfy the element of intention.

The accused cannot be found guilty of murder on this basis if he knew only that death or serious injury was a possible consequence. Proof of knowledge of the probability of such a consequence is required. Accordingly, if the accused, without lawful justification or excuse, intentionally does an act knowing that it is probable that death or serious injury will result, he is guilty of murder if death in fact results.

This is so even if the accused is indifferent to whether death or serious injury is caused, or indeed, even if he wishes that death or serious injury might not be caused. Indifference is not necessary to constitute the mental state required for the crime of murder. It is not the accused's indifference to the consequences which is the critical matter. The critical matter which must be proved is the accused's knowledge that death or serious harm will probably occur. As with all of the elements of intent here, the Crown say you can infer that knowledge, or infer that intent, from the circumstances which you have heard evidence of."

65 Those were the terms of the standard charge, which does not address the requirements stated in Pemble, as discussed above, no doubt because the direction in the charge book is solely concerned with reckless murder, not with directions as to unlawful and dangerous act manslaughter which might be required in some but not all cases. His Honour's directions did not therefore comply with the requirements stated by Barwick CJ in Pemble, and by Buchanan JA in TY, which were relevant to this case.

66 No exception was taken to the directions with respect to the Pemble requirements, thus suggesting that counsel did not perceive any danger of injustice in the circumstances. Nor was exception taken to the omission of the word "really" in the directions on reckless murder. Mrs Quin, counsel for the respondent, submitted that that reflects the fact that neither counsel perceived any risk of the jury being misled. She noted that when the erroneous directions were given, for the most part, the jury had before them the written summary of the elements, which used the correct phrase "really serious injury". Those are significant factors pointing to the fact that, even if the omissions in the directions constituted a miscarriage of justice, there was not a substantial miscarriage of justice. There are other considerations, however.

67 This was a case where the distinction between serious and really serious injuries was by no means academic. As noted earlier, the cause of death was problematic. There had been a very wide range of injuries suffered by the victim. They ranged from life-threatening to very minor. But even the minor ones had to be taken in conjunction with the multitude of other major and minor injuries as potentially contributing to death.

68 The defence called consultant forensic pathologist Dr Byron Collins, who said there were three significant causes of death, being the left side subdural haemorrhage, toxic levels of drugs, and extensive skin and soft tissue injuries. He considered the level of tramadol in the deceased's body played a significant role in the death. The subdural haemorrhage was more than a day old and he could not exclude the possibility that it was caused by a fall whilst in a state of grogginess due to the effects of tramadol. He concluded that it was likely that the constellation of injuries, in their entirety, especially those involving the head, played a major role in the death and that the toxic level of drugs was a significant contributory factor. He said the deceased could have been saved had she been treated earlier.

69 It was by no means impossible for the jury to have concluded that some relatively minor injuries had been caused by violent acts of the applicant, but that none of those caused death, and that, of the more serious injuries that did cause or contribute to death, they could not exclude the possibility that they had been caused by falls occasioned not by violence but by the effect of drugs.

70 The fact that no exception was taken to the charge as to the issues now identified as errors or omissions, whilst a significant indicator that counsel saw no danger of injustice in the directions, cannot be the end of the matter. No exception was taken to similar omissions in the direction considered in R v TY[30] either_,_ and yet the conviction was overturned. Furthermore, both TY and Pemble were cases where there were a very limited number of assaults and injuries contributing to death. In addition, they were not cases where the question whether death had resulted from "serious" rather than "really serious" injuries" was of any consequence.

71 I am satisfied that the complaints about the deficiencies in the charge are made good and this ground of appeal should be upheld.

72 Mrs Quin submitted that in the circumstances of this case, where the real issue was that the accused had denied to police that he was responsible for any of the injuries, at all, the charge was adequate, and having regard to the fact that no exception was taken to its errors or omissions this would be an appropriate case for the application of the proviso to s 568(1) of the Crimes Act 1958.

73 I will return to the question of the proviso, later.

Ground 6: Rulings on admissibility of evidence of Dr Moloney and Dr Jager

74 As part of the Crown case evidence was called from Dr Grant Lester, a psychiatrist who had examined the applicant on 2 September 2002, some nine months prior to the death of Ms Brodhurst. Although the jury were not so informed, Dr Lester had at that time interviewed the applicant and prepared a report in connection with an unconnected court case. Dr Lester took a history from the applicant of having suffered morbid jealousy over a 10 year period and having assaulted his partner over that period. The applicant told him that his preoccupation with the possibility of his partner's infidelity and his jealousy were exacerbated by his use of amphetamines, which he had been fully dependent upon by the age of 19, using four grams daily. Dr Lester found no evidence of thought disorder or delusions and no major depressive themes, but concluded that the applicant suffered morbid jealousy, and opined that he had limited insight.

75 Under cross-examination Dr Lester agreed that the applicant told him he had previously been diagnosed as having suffered a drug-induced psychosis. He was asked to explain what that condition could be and he gave a lengthy answer, as to how amphetamine use could produce a "jumbled brain". He said that this could continue even after the drug was out of the person's system and that the psychosis could remain for some weeks. He accepted that amphetamines could produce a drug-induced psychosis and said that amphetamines had a greater likelihood of causing such a psychosis because they constituted a particularly nasty class of drugs which can produce hallucinations and, even without psychosis, could produce jumbled thoughts, altered perceptions and altered mood. He agreed that morbid jealousy could be caused by drug-induced psychosis, but morbid jealousy could also be a product merely of prolonged and heavy drug use. He agreed that a person in the throes of a drug-induced psychosis might do things they would not normally do, including breaking normal societal rules, suffering disinhibition and acting impulsively. Dr Lester prescribed an anti-psychotic drug, respiradone. Asked about Xanax, he said that was a medication used to treat acute anxiety.

76 In re-examination, he said he had not made a diagnosis of drug-induced psychosis, but merely took a history of that. He agreed that morbid jealousy could stand alone, without any amphetamine use having an effect.

77 Dr Lester was called as a Crown witness and the admissibility of his evidence was not challenged on either side.

78 At the conclusion of the Crown case discussion ensued as to the issues that ought be left to the jury and as to the evidence proposed to be called by the defence. At the commencement of the trial the jury were told that one intended witness was to be Dr Alan Jager. Defence counsel had initially notified his Honour of her intention to call Dr Jager (and had provided a copy of his report to the prosecutor) so as to raise the possibility that the applicant had suffered a drug induced psychosis at or about the time of the death. However, when the prosecution case closed, rather than call Dr Jager defence counsel sought to call psychiatrist Dr Michael Moloney. He had not previously been identified as a potential defence witness, and no medical report from him had been supplied to the Crown. The prosecutor objected to his evidence, pointing out that he did not know what the witness proposed to say.

79 Defence counsel said that Dr Moloney had seen the applicant between October 2000 and February 2001, more than two years before the death of Ms Brodhurst. He had been referred to Dr Moloney from Dandenong Hospital where he had been admitted in July 2000, after he suffered what counsel described as an amphetamine overdose. Although the applicant was not diagnosed as suffering a drug induced psychosis at the time Dr Moloney saw him, he gave a history of having been diagnosed as suffering such a condition "quite some time ago". The prosecutor submitted that the evidence was not relevant in proof of whether the applicant suffered a drug induced psychosis at or about the time of Ms Brodhurst's death.

80 Defence counsel said that she wanted to call evidence of the history given to Dr Moloney as evidence of the truth of what the applicant had said, even though she did not intend to call him to give evidence. His Honour responded that that would render the evidence inadmissible hearsay, if given by Dr Moloney. Counsel said its status was no different to that of Dr Lester, but the judge observed that the difference was that she had not objected to Dr Lester's evidence.

81 In order to determine whether the evidence was admissible, Dr Moloney was called on voir dire. He gave evidence of the history he had taken from the applicant, including his account of having been diagnosed in 1992 as suffering paranoid psychosis. The applicant gave a history of having suffered hallucinations, at times, over a period of about eight years and of his paranoia over that period. He also described his dysfunctional upbringing and his drug abuse over the years. His Honour ruled that the proposed evidence from Dr Moloney was inadmissible.

82 In his ruling the judge accepted that Dr Moloney had formed an opinion that the accused had suffered an episode of acute psychosis at a time prior to seeing Dr Moloney (probably, in 2000). His opinion was based on the account given by the applicant of having suffered visual hallucinations and exacerbation of jealousy at that time. His Honour ruled that the factual basis for the opinion was not, however, supported by admissible evidence. Furthermore, he held, there was no factual basis "at the moment" for a conclusion that the suffering of a psychosis at the earlier time rendered it possible that he suffered such psychosis between 6 and 11 June 2003; in particular, there was no evidence from any witness of behaviour by the applicant in June 2003 consistent with him suffering such psychosis.

83 His Honour opined that the psychiatrist who appeared qualified to give evidence of the mental state of the applicant between 6 and 11 June 2003 was Dr Alan Jager. Defence counsel had advised that Dr Jager was not being called as a result of the prosecutor advising counsel that, were she to call Dr Jager, he would be cross-examined about material damaging to the defence case contained in his report, including admissions made therein. After the ruling excluding evidence from Dr Moloney, however, defence counsel advised his Honour that she wanted to reconsider whether to call Dr Jager and subsequently advised that she would do so.

84 His Honour invited defence counsel to re-consider whether she ought to have objected to evidence of Dr Lester, but that invitation was not taken up.

85 The prosecutor had not objected to the relevance of Dr Jager's evidence. Nor had he objected to its admissibility prior to defence counsel calling him. The prosecutor said, however, that he would object to inadmissible evidence being relied on by Dr Jager as informing his opinion. He contended that any facts on which Dr Jager would rely had to be formally proved.

86 His Honour told the doctor that his opinion had to be based on admissible evidence, which included Dr Lester's evidence, that of Dr Marginean and Mrs Barrett, the hospital records, his findings upon his own examination, and tendered material, including the record of interview. His Honour told the doctor that he had to put out of his mind "things you might know" and confine himself to "what's in the evidence".

87 Dr Jager, a forensic psychiatrist, told the jury that he examined the applicant on 24 November 2004 and in preparing his report had regard to a range of other material, including the transcript of his record of interview with police and also reports of Dr Marginean and Dr Lester.

88 Dr Jager said that he had diagnosed that the applicant had an anti-social personality disorder. He said that, in addition: "I diagnosed psychotic disorder secondary to poly-substance dependence", being a drug induced psychosis caused by amphetamine ingestion. He agreed with Dr Lester's diagnosis in 2002 of morbid jealousy. Dr Jager said that the applicant was not exhibiting any signs of being in a state of psychosis when he interviewed him. Based on the history contained in hospital records, he concluded that his psychotic symptoms were intermittent, which was typical of drug induced psychosis. He agreed with Dr Lester that a person might develop morbid jealousy due to extended or prolonged heavy drug use. He was referred to evidence of the applicant's mother that, when aged 16 or 17, he had an episode of hallucinations which the witness agreed was consistent with drug induced psychosis.

89 Dr Jager was referred to hospital records of an attendance in April 2003 when, after a quarrel and after an injection of amphetamine, the applicant had slashed his wrist. He noted another attendance at hospital in which the applicant was prescribed anti-psychotic medication. In 2000, he said, hospital records disclosed a diagnosis of delusional disorder, which Dr Jager said meant psychotic disorder, a condition exacerbated by amphetamines.

90 Dr Jager was referred to the evidence of Dr Marginean as to what the applicant told her had been his drug ingestion in the days leading up to 11 June 2003, and of taking four Xanax tablets after the death and prior to the police interview. Dr Jager agreed that Dr Marginean had been told by the applicant that he had ingested amphetamine, cannabis and heroin, the last of those being taken on the day before the interview with police. In addition he had ingested prescription drugs. Asked to assume that the applicant had ingested the quantity and type of drugs that he had advised witnesses he had taken in the days prior to 11 June 2003, Dr Jager said that such consumption would have increased the likelihood of him suffering drug-induced psychosis in a period of about three days (or longer) after ingestion.

91 In cross-examination Dr Jager was taken by the prosecutor to the evidence of witnesses who saw no signs of psychotic behaviour on 11 June 2003 or in the days before. Dr Jager expressed concern about being asked to opine as to whether the accused had been suffering psychosis, based on the history taken by other people, rather than on his own history. He said:

"I have been asked to provide an opinion based on the evidence of the history gathering of Dr Lester and others. I, of course, formed my own opinion based on my own history gathering, which I customarily refer to in situations in court such as this. But in the current circumstances of being confined to not considering that information I find it very difficult to reinterpret for example Dr Lester's opinion."

"What I am asking you, are you able to say on that material that between Saturday and the Wednesday morning, that he suffered a psychotic episode, on that material?---It remains very difficult for me to remember what material I've heard and read and what material I've heard and read from other sources, but my opinion is that it is more likely than not that he had a psychotic disorder during that period.

All right, well let's go through that. He didn't tell anybody that he had a psychotic episode in that period, do you accept that? You've been through the materials?---Of course he told me ---

I'm not interested in what he told you ---?---Symptoms."---

93 The prosecutor referred Dr Jager to the history taken when he examined the applicant. In his report dated 30 November 2004 Dr Jager set out a medical, family and psychiatric history of the applicant and, under a heading "Report of Accused", gave the applicant's account of the circumstances of the killing. In cross-examination the prosecutor directed him to that passage. Defence counsel objected that it was hearsay, to which the prosecutor said this was an exception to the hearsay rule. His Honour allowed the question and Dr Jager then confirmed each sentence of the following passage from the report as it was read to him by the prosecutor (but was not tendered):

"On the day of the alleged offence he went to St Kilda because he could not handle what was happening. He said he became upset about a guy sitting next to Jenny in the car when they were out. He started arguing with her when they got home and he said that she lunged at him with a knife, nicking his right hand. He said that he then hit her with a motor bike helmet and she hit her head on the bed. He said that he then hit her legs with the blunt edge of a knife but does not know if she was unconscious at that stage. He said he had noticed he had gone too far and stopped. He said sorry to her and called his parents over to get an opinion on what he should do. He said that his mother felt that she would be all right but she died three days later."

94 In re-examination defence counsel sought to lead evidence which was contained in the immediately preceding paragraphs of the report. Those paragraphs read as follows:

"The accused stated that after a binge of amphetamines he would realise that he was tripping but when intoxicated would believe his paranoid thoughts. After his release from prison he thought the prison liaison group was following him. He said he bought a bug detector from an electronic shop and thought street signs were being changed to fool him and he ended up in Mt Eliza as a consequence one night. He felt unsafe from those groups but did not experience any abnormal sensory perceptions such as hearing voices or seeing things that others didn't. He did take particular note of men's names he saw written on paper and furniture.

"In the week before the alleged offence he said he was psychotic in relation to the phone system. He had no sleep for five days and had been using 'crystal meth' for five days, heroin, alprazolam, bupremorphine and alcohol."

95 Objection was taken to that evidence by the prosecutor on the ground of hearsay, the prosecutor stating that admissions against interest were exceptions to the hearsay rule but the other material was self-serving. Defence counsel submitted that it was unfair for the admissions not to be put in the context of the explanatory statements made at the same time. The learned trial judge would not permit defence counsel to lead the evidence.

96 Under the same ground of appeal complaint is made that the evidence of Dr Moloney was wrongly excluded and that the learned trial judge wrongly confined the evidence that Dr Jager was permitted to give. It is convenient to deal first with the ruling concerning Dr Jager.

The Ruling confining the evidence of Dr Jager

97 It is important to consider the evidence of Dr Jager against the background of the evidence given by Dr Lester.

98 As noted earlier Dr Lester's evidence was not objected to on either side. He said that the applicant provided a history of having previously suffered what had been diagnosed as drug induced psychosis. Had the defence objected to that evidence his Honour would no doubt have ruled that it was hearsay and was not evidence of the truth of the fact that he had suffered such psychosis[31]. Nor was the evidence admissible as providing the foundation for an opinion of Dr Lester, because Dr Lester expressly declined to make a diagnosis based on that history. That evidence, although hearsay, was admitted without objection and was available to be used by the jury.

99 On the other hand, the evidence of Dr Lester as to the effect upon an individual of him suffering a drug induced psychosis was admissible expert evidence, provided that it was rendered relevant by admissible evidence that the applicant may have been suffering such a psychosis at the time of the fatal assaults on Ms Brodhurst.[32] Although no witness had given evidence that in the days leading up to the death of Ms Brodhurst the applicant had been acting in a manner consistent with a person suffering hallucinations or delusions, or, indeed, that he had been consuming drugs, the evidence of Dr Lester had placed those issues before the jury, and the ferocity and multiplicity of the injuries might have been regarded by the jury as consistent with a person affected by drug induced psychosis.

100 In my opinion, the failure of his Honour to allow defence counsel to lead the additional evidence of what the applicant had told Dr Jager was an error. The evidence was admissible as an exception to the hearsay rule relating to mixed statements made by an accused which contain material both helpful and harmful to the prosecution.[33] As Cox J held in Spence v Demasi:[34]

"The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict."

101 Where the self serving evidence is not supported by evidence on oath from the accused it is admitted as a matter of fairness, and the weight to be given to those self-serving statements is a matter for the jury. In R v Su the Court of Appeal accepted that, whilst such evidence was material to be taken into account by the jury "as part of the general picture" which the jury must consider, it is not strictly evidence of the facts.[35] Whilst there has been some support for the view that the jury

is entitled to treat it as evidence of the facts,[36] the question may not be of great consequence because the jury are entitled to give it such weight as they choose. In Mule v The Queen[37] the High Court cited with approval Spence v Demasi and endorsed the following statement of Thomas J in R v Cox[38] concerning mixed statements:

"With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence."

102 As the Court held in Su,[39] the prosecution has an obligation to put the whole of such a statement before the jury, leaving it to the jury to determine what weight they give it.[40]

103 Although the "mixed statement" exception has generally been applied to statements made by an accused in the course of an interview with police, the notion of fairness which motivates the exception to the hearsay rule has equal application in situations where the prosecutor seeks to cross-examine an accused person in order to elicit inculpatory statements but wishes not to elicit qualifying statements made at the same time. The approach taken by courts in that situation has been long understood. In The Queens Case[41] Abbott CJ held:

"I think the counsel has a right, upon re-examination, to ask all questions, which, may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be themselves doubtful, and, also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.

And I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit, relative to the subject matter of the suit, are, in themselves, evidence against him in the suit, and, if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the Court the whole which was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced in the previous examination, but, even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion."

104 The evidence which Dr Jager could have given was highly relevant to issues in the case and the jury might well have thought that it qualified the statements which were relied on by the prosecution as admissions made to Dr Jager. The issue of drug induced psychosis was squarely before the jury and the jury might well have thought that the conduct of assaulting the deceased with a motor cycle helmet (if they believed that had happened) was consistent with evidence they had before them of the potential behaviour of a person suffering a drug induced psychosis. They might, of course, have rejected that explanation, given the absence of other evidence pointing to such an event. That was a matter for them to determine, but the exclusion of the evidence of the totality of what the applicant had said to Dr Jager created unfairness.

105 This ground has been made out with respect to the complaint concerning the evidence Dr Jager.

The exclusion of Dr Moloney's evidence

106 The High Court in Ramsay v Watson[42] identified two bases on which evidence could be led of statements made by a person to others concerning the person's state of health. In the first place, statements made by a person as to his present bodily sensations or symptoms may, in some circumstances, be admissible as direct evidence in proof that he was then suffering those symptoms or sensations. To be admissible, however, in proof of the suffering of particular symptoms or sensations at a particular time, the statements must be made at that time or soon afterwards.[43] The evidence must also comprise statements or reports by the person as to symptoms he was then experiencing[44], not hearsay reports of diagnoses made by a third party or statements of opinion or narrative.[45]

107 The second basis on which statements made to a medical practitioner could be admitted in evidence was stated in these terms in Ramsay v Watson[46]:

"This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts. In this case counsel for the defendant sought to get the examining doctor to recount things he had been told by those he examined. Yet he did not undertake to call them as witnesses. Indeed, he made it clear that he did not intend to do so."

108 The High Court held that the judge "could properly refuse" to admit the evidence once it was clear that evidence would not be called from the patient who provided the history.

109 It is clear that the statements made to Dr Moloney did not meet the requirements to be admissible under the first limb discussed in Ramsay v Watson. They were not contemporaneous statements as to sensations then being experienced, but reports of sensations earlier experienced, and of diagnoses apparently made at the earlier time by a medical practitioner. Nor did the history become admissible under the second limb discussed in Ramsay v Watson. The applicant - the historian - was not being called to give evidence. Thus, at best, the evidence had "little value", and the judge could properly have refused to admit it.

110 The principles discussed in Ramsay v Watson were considered by the High Court when determining a special leave application in Gordon v R[47], a decision in which the judgment of the Court comprises a mere four paragraphs. After discussing one issue, which is not of present relevance, their Honours said of the second issue:

"The second, discussed in relation to expert evidence as to physical, rather than psychiatric, disabilities, in Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 648-9 is that statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies but that if such statements, being hearsay, are not confirmed in evidence, the expert testimony based on them is of little or no value.

In the case of psychiatric evidence, statements made to the psychiatrist may be themselves original evidence, in which case they need no confirmation in the witness box. In the present case, however, the statements made to the psychiatrist and upon which he relied, but which were not proved in evidence, were not of that character."

111 The Court did not provide further guidance as to when it might be that statements to a psychiatrist might constitute direct evidence and would therefore not have to be confirmed on oath by the historian.

112 In R v Pangallo[48], Prior J interpreted Gordon as permitting the admission in a murder trial of statements made by the accused to psychiatrists "about his state of mind" although he was not to be called to give evidence confirming what he said to the psychiatrists. The defence was insanity. When interviewed by one psychiatrist three months after the alleged offences the accused displayed persecutory ideas and hallucinations but he also provided a narrative of past events. The psychiatrist concluded that the accused was suffering paranoid schizophrenia when examined and had also been suffering that condition three months earlier when he had killed a number of persons. The accused was again interviewed by a psychiatrist some eighteen months after the killings, and asked what he had been thinking at the time of the killings. He again displayed signs of psychosis during the interview but also provided an account of the killings which, if accurate as to what he thought at the time, demonstrated that he was psychotic at that time too. Interviewed once more, nearly two years after the killings, and when apparently calm as a result of successful treatment by medication, one of the psychiatrists obtained from the accused a history of events commencing three months before the killings and throughout his time in custody. That psychiatrist concluded that he had been psychotic at the time of the killings.

113 Prior J, citing R v Blastland[49] and Walton v R,[50] and applying the presumption of the continuance of mental states, held[51] that where the state of mind or intention of a person was relevant, what he said to the psychiatrists was original evidence that could be given by the psychiatrists. His Honour noted that the High Court ruled in Gordon that in that case the evidence of the psychiatrist had been properly excluded, and did not constitute original evidence. Prior J referred to the judgment of the Court of Criminal Appeal in which the evidence had been more fully described than in the judgment of the High Court. He noted that the statements to the psychiatrist in that case related to facts not "substantiated in affirmative, probative form" and, in addition, he observed: "It was not a case where statements were made to the psychiatrist about the accused's state of mind"[52].

114 The conclusion reached by Prior J was that statements made by the accused "about the accused's state of mind" were admissible as original evidence from a psychiatrist, including narrative statements as to past events and also statements about past symptoms, and was not limited to contemporaneous utterances about sensations then being experienced.

115 In the present case there is no doubt that the statements made by the applicant to Dr Moloney were of a similar kind to those which were ruled by Prior J to constitute original evidence. They were the substantial (if not the sole) foundation for his opinion that the applicant had, at a time prior to his examining the applicant (being some years before the death of Ms Brodhurst), suffered a drug induced psychosis. For the evidence to be admissible through the testimony of Dr Moloney, the statement of the High Court in Gordon must therefore have extended the principles discussed in Ramsay v Watson, and done so to the extent accepted by Prior J.

116 Were that evidence admissible through Dr Moloney then there is no doubt that it was relevant to the defence. If Dr Moloney was permitted to give his opinion, based on that information, as to the past psychosis suffered by the accused then his opinion that the accused was psychotic at that earlier time might support a finding that he had been psychotic at the time of the offence, by virtue of the presumption of continuance. As Hunt CJ at CL held in R v Hawes,[53] "an inference may be drawn from the common experience of humanity in relation to various matters that certain facts which existed at one time were also in existence either at some subsequent or some previous time". Dr Moloney gave evidence on voir dire that at some time prior to his first examination of the applicant, he had suffered an acute psychosis. He also gave evidence that it is more likely than not that a person who had suffered psychosis in the past will experience psychosis again. In Dr Moloney's opinion, given the history of a drug-induced psychosis which the applicant had provided to him, another psychosis was more likely to occur, and could be triggered by lower doses of amphetamine than on the last occasion. In my opinion, if the evidence as to past psychosis was admissible to provide the basis for it then that opinion evidence was admissible by reference to the doctrine of continuance.

117 The ambit of Gordon is by no means certain. Nor is the ambit of Ramsay v Watson beyond doubt. Indeed, as Prior J noted, the High Court had not held in Ramsay v Watson that it was mandatory for a trial judge to exclude expert evidence which was based on a patient's history that was not to be confirmed in the witness box. The Court merely held[54] that the opinion evidence "may have little or no value" in those circumstances.

118 I note, however, that one important consideration that led Prior J to admit the evidence was his concern that it would be unfair in a trial where insanity was in issue to impose a prerequisite for the admission of opinion evidence of a psychiatrist that no narrative statements be relied upon unless they were confirmed in evidence by the accused. His Honour heard evidence that it would endanger the mental health of the accused were he to give evidence.

119 It is, indeed, common for psychiatrists dealing with a mental impairment or insanity defence to give evidence based, in part, on the history they had been given by an accused person, but without the accused giving confirmatory evidence in the witness box of the matters he or she had recounted to the psychiatrist. Were this Court to make a ruling as to the validity of that practice then it ought do so only after hearing full argument.

120 Given the conclusion that I have reached as to the upholding of this ground with respect to the evidence of Dr Jager it is unnecessary to reach a concluded view as to the admissibility of the evidence of Dr Moloney. In the circumstances I will leave the question open, to be decided another day.

Ground 11: Directions on provocation

121 Mr Holdenson sought leave to add this ground of appeal and we reserved our decision on that application although counsel was permitted to address full argument to us.

122 In the present case the issue of provocation arose only by virtue of the statement made to Dr Jager by the applicant that the deceased had lunged at him with a knife, nicking his right hand, which caused him to strike her on the head with a motor bike helmet, in consequence of which she hit her head on the bed and he then hit her legs with the blunt edge of a knife.

123 The defence did not argue provocation before the jury, instead denying that any injury, at all, had been proved to be caused by the accused, or, at least, any injury that was life-threatening. The defence was, however, left to the jury (and it is not contended that it ought not have been), so notwithstanding that provocation was given very little prominence in the case the directions on the issue had to be accurate.

124 In his charge to the jury with respect to provocation his Honour included the following passages:

"There are two elements in the concept of provocation. The first is that the acts of the deceased which are said to constitute provocation caused the accused to lose his self control and that the acts causing the killing were done during a period of loss of self control. A phrase that is commonly used in legal writing about provocation is 'the heat of passion'. Provocation puts a person into a heat of passion where he is not able to control himself.

The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act or acts. The provocation must be of a kind that might, in the same circumstances, cause an ordinary man to react in the same way as the accused reacted."

125 That passage in the charge follows the words employed in the model direction in the charge book. A direction in almost precisely the same words was considered by this Court in R v McKeown,[55] judgment in which was delivered on 5 April 2006 (that is, more than a year after the judge gave his charge in the present case). In McKeown Callaway JA said of the relevant part of the charge:

"There are two difficulties in the last two sentences of that passage, in which the objective element is restated. One difficulty is that the jury may not have understood the first sentence as being solely introductory to the second. They may well have thought that proportionality was an essential part of the objective element of provocation.[56] The expression 'the law will only concede' is a strong expression, to which they are likely to have paid particular attention. The other difficulty is that, particularly coupled with a reference to proportionality, the jury may have thought that 'react in the same way', in the next sentence, meant 'react in precisely the same way'. That, too, would be a misdirection.[57]"

Buchanan and Vincent JJA both expressly agreed with Callaway JA concerning this passage in the charge. Buchanan JA held:

"...I also agree with Callaway JA that the trial judge erred in apparently making provocation dependent upon the provocation being proportionate to the acts that caused death and requiring the reasonable man in the position of the applicant to have reacted to the provocation in precisely the same way as the applicant."

126 It is perhaps unfortunate that what had been standard directions in the charge book for many years were found to be deficient in the respects identified in McKeown, particularly when the defence of provocation is no longer available in Victoria and there are few cases left in which the defence will still be available to an accused person. Nonetheless, the difficulty identified by Callaway JA was not a new concern. Barwick CJ held in Johnson v The Queen:[58]

"To take into account the mode and extent of retaliation when determining whether an ordinary man, subjected to the like acts of provocation in all the circumstances in which the accused then stood, would have lost self-control to the point of doing something akin to what the accused has done is one thing. To require that it be established positively and, as a separate issue or element, whether the act of the accused was in fact proportionate to the provocation, is quite another; or to require the Crown as a specific matter to negative that proportion is quite another. This is particularly so if it be assumed that it has already been concluded that the accused had relevantly lost self-control in considering whether an ordinary man would have lost self-control so as to form an intent to kill and to kill in the manner in which the accused did so, the jury may think the provocation was such that an ordinary man might react in the way in which the accused reacted. After all, it is the induced intent to kill rather than the induced fatal act which is the critical consideration. As I have stressed, the provocation is irrelevant unless there was an intent to kill or to do grievous bodily harm: and the provocation to be operative must have caused that intent. No doubt the question is difficult, namely: would the actual provocation, which has caused the accused so far to have lost self-control as to have formed an intent to kill, have caused an ordinary man to have lost his self-control and to have formed that intent. To express the objective test as whether the provocation would have caused an ordinary man to have so far lost self-control as to have done an act of the kind or degree done by the accused, tends somewhat to obscure the necessity of there being an intent to kill or do grievous bodily harm."

127 In Masciantonio v The Queen[59] the Court held that it was no longer true to say that it was an element of provocation that the retaliation should be proportionate to the provocative incident. Brennan, Deane, Dawson and Gaudron JJ held in their joint judgment that the question of proportionality is now absorbed in the application of the test of the effect of the provocation upon the ordinary person. Thus, as their Honours held, "in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction."

128 The objective test into which the element of proportionality is subsumed requires the provocation to be such "as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death."[60]

129 The danger with which Callaway JA was concerned was that the jury might take it as a prerequisite to the defence of provocation succeeding that it was first established beyond reasonable doubt that the violent manner of the response was proportionate to the provocation. To put it in the context of the present case, the jury did not have to first decide that striking the victim with a motorcycle helmet was within the range of responses that could be proportionate to a stabbing which caused a minor nick to the hand. The relevance of the nature of the response to the provocation was explained in the joint judgment in Masciantonio as follows:

" ... if a jury were to conclude, as it might, that the provocation offered by the deceased was, in the circumstances in which the [applicant] found himself, of a high degree ... then it is possible that a reasonable jury might also conclude that an ordinary person could, out of fear and anger as a result of that provocation, form an intention to inflict at least [really serious injury] and act accordingly."[61]

Or, put another way, the Court posed the question for the jury in these terms:[62]

"It is whether an ordinary person could have lost self-control to the extent that the accused did. That is to say, the question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it."

130 Immediately after the passage quoted from the charge, above (at par [124]), his Honour (again following the words of the standard charge) repeated that "the law also took the view that there must be reasonable proportionality between the provocation offered and the resulting killing."

131 Given the decision of the Court in McKeown it would be appropriate that future directions on provocation be modified so as to remove the second last sentence of the direction set out at [124] (commencing with the words "The second element ...") and in the final sentence to substitute:

"The provocation must be of a kind that might in the same circumstances cause an ordinary person to form an intention to kill or to cause really serious injury. The question is not whether an ordinary person would react to the provocation by using the precise method of response as did the accused but whether, in those circumstances, an ordinary person might form an intention to kill or to cause really serious injury."

132 Unfortunately, the directions given here, although entirely consistent with the directions in the judges' Charge Book, employed precisely the words identified as erroneous in McKeown. The decision in McKeown could only be overturned by a court of five judges and must be taken to be the law. Accordingly, proposed ground 11 also has substance. Leave to add that ground should be granted and the ground be upheld.

Conclusion

133 Leave to add ground 11 out of time should be granted.

134 In my opinion, the applicant has made good grounds 3, 5, 6, and 11. Grounds other than those I have addressed were not argued on the application for leave.

135 When the successful grounds are considered together there is no possibility that the proviso could be applied.[63] The only option is for the application for leave to appeal against conviction to be allowed, the appeal be taken to be heard instanter, the conviction quashed and a re-trial be ordered.

136 That being the conclusion as to the conviction appeal, it is inappropriate to deal with the application for leave to appeal against sentence.

137 I have had the considerable benefit of reading in draft the judgment of Eames JA. I agree, for the reasons which he gives, with the orders proposed by his Honour.

- - -

[1] [1964] HCA 23; (1964) 109 CLR 529.

[2] R v Clarke & Johnstone [1986] VicRp 64; [1986] VR 643, at 661-2; R v Osland [1998] 2 VR 636 at 652; R v MAG [2005] VSCA 47 at [25]; R v Demiri [2006] VSCA 64 at [28]- [29].

[3] R v Favata [2006] VSCA 44, at [145]-[147] per Vincent JA. To like effect, in the context of credibility findings in civil trials, see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, at 129 [31] and CSR Ltd v Della Maddalena [2006] HCA 1; [2006] 80 ALJR 458 at **[**44]-[50]

[4] [1987] VicRp 68; [1987] VR 855, at 868.

[5] (1990) 50 A Crim R 434, at 457.

[6] [2004] VSCA 206; (2004) 11 VR 1, at 11.

[7] Woon, at 535, 537, 539, 540, 542.

[8] Favata, at [147].

[9] [2006] VSCA 86; (2006) 12 VR 401.

[10] [2006] VSCA 263.

[11] At [40], [62].

[12] At [72]-[75].

[13] At [78] and [81]-[92].

[14] R v Aiton (1993) 68 A Crim R 578, at 590-595.

[15] See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, at 118-120; R v Sergi [1974] VicRp 1; [1974] VR 1, at 9_;_ R v Allwood (1975) 18 A Crim R 120; La Fontaine v The Queen (1976) 136 CLR 62, at 69, 77; R v Nydam [1977] VicRp 50; [1977] VR 430, at 436; Aiton, at 588-590.

[16] (1976) 136 CLR 62, at 69.

[17] [1974] VicRp 1; [1974] VR 1, at 9-11.

[18] Aiton, at 588.

[19] [1971] HCA 20; (1971) 124 CLR 107, at 120.

[20] [2006] VSCA 113; (2006) 12 VR 557, at 560 [15].

[21] R v TY, at 560 [17].

[22] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437; Doggett v The Queen (2001) 208 CLR 343, at 346 [2], per Gleeson CJ; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439, at 444 [24]; R v AJS [2005] VSCA 288; (2005) 12 VR 563 at 577 [55]; R v Zilm [2006] VSCA 72; (2006) 14 VR 11 at 24-5 [55]- [58]; R v Hiep Tan Tran [2007] VSCA 19 at [7]- [11], [38]-[46].

[23] At 69. See, too, R v Lowe [1997] 2 VR 465, at 481.

[24] [1992] HCA 31; (1992) 174 CLR 313, at 333; see, too, R v Schaeffer [2005] VSCA 306; (2005) 13 VR 337 at [97].

[25] At 120.

[26] At 560 [17], Vincent JA agreeing, at 562 [28]. In a separate judgment Warren CJ, at 558 [2], held that the jury must be satisfied that the accused "ought and must" have foreseen the consequences of the act contemplated. That, with respect, might imply that the test is objective, whereas, as is clear from the next passage of her Honour's judgment, that was not intended.

[27] See par [59], above.

[28] At 121.

[29] At 558 [2], per Warren CJ; at 561 [18], per Buchanan JA.

[30] At [3], at [15]-[18].

[31] See the later discussion at pars [106]-[107] ff.

[32] See R v Fowler (1985) 39 SASR 440, at 442, per King CJ.

[33] R v Higgins [1828] EngR 201; 172 ER 565.

[34] (1988) 48 SASR 536, at 540, White J agreeing. This principle has been applied in Sharp v Hotel International [1969] VicRp 12; [1969] VR 103, at 109-110, per Newton J and Spence v Demasi was approved in R v Su and Others [1997] 1 VR 1 at 64-65, per Winneke P Hayne JA and Southwell AJA.

[35] R v Donaldson (1976) 64 Cr App R 59 at 65, approved in R v Su & Ors, at 64

[36] See R v Williamson [1972] 2 NSWLR 281, at 295, per Lee J; Middleton v The Queen (1998) 19 WAR 179, at 190, per Ipp J.

[37] [2005] HCA 49; (2005) 156 A Crim R 203, at 209, 212.

[38] [1986] 2 Qd R 55 at 65

[39] At 65.

[40] Where the Crown does not seek to tender the statement (for the admissions) the defence can not seek to lead the evidence of the self-serving statements contained within the mixed statement: see R v Callaghan [1994] 2 Qd R 300 at 304; Sampson v The Queen [2002] WASCA 222; (2002) 132 A Crim R 326, at 330.

[41] [1820] EngR 563; 129 E R 976 at 981, per Abbott CJ.

[42] [1961] HCA 65; (1961) 108 CLR 642 at 648-9.

[43] Ramsay v Watson, at 647, citing Wills on Evidence 3rd Ed (1938) p.209.

[44] R v Pangallo (1989) 51 SASR 254, at 270.

[45] Ramsay v Watson, at 647; R v Perry (No 2) (1981) 28 SASR 95, at 99, per Cox J.

[46] At 649.

[47] (1982) 41 ALR 64.

[48] (1989) 51 SASR 254.

[49] [1986] AC 41 at 54, per Lord Bridge of Harwich.

[50] Walton v The Queen (1989) [1989] HCA 9; 166 CLR 283 at 288, per Mason CJ.

[51] Pangallo, at 271.

[52] Pangallo, at 270.

[53] (1994) 35 NSWLR 294 at 298.

[54] At 649.

[55] [2006] VSCA 74.

[56] Compare Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 67 and the passages in Johnson v The Queen [1976] HCA 44; (1976) 136 CLR 619 to which reference is there made.

[57] Masciantonio v The Queen at 67 and 69-70; R v Thorpe (No 2) [1999] VSCA 172; [1999] 2 VR 719 at 724 [16] point 2.

[58] [1976] HCA 44; (1976) 136 CLR 619 at 639-640.

[59] [1995] HCA 67; (1995) 183 CLR 58 at 67.

[60] At 66.

[61] Masciantonio at 69.

[62] At 69.

[63] Applying Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; R v Weiss (No.2) [2006] VSCA 161; [2006] 164 A Crim R 454; R v Ciantar [2006] VSCA 263 at [105]- [107].