R v Fitchett [2009] VSCA 150

1 On 22 May 2008, the applicant was found guilty in the Supreme Court at Melbourne of the murder of her two children, Thomas and Matthew Fitchett, on Tuesday 6 September 2005.

2 She has sought leave to appeal against her conviction,[1] relying upon three grounds, asserting that.

1. A substantial miscarriage of justice was caused in the present case by virtue of:

(a) the learned trial judge having erred by failing to order a permanent stay on the ground that the Crown refused to call Professor Mullen,

(b) the Crown's failure to call Professor Mullen and/or rely upon his evidence, and/or,

(c) the prosecution splitting its case by calling Dr Skinner in rebuttal.

1. The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
2. The learned trial judge erred by failing to explain to the jury, in accordance with section 22(2)(a) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the legal consequences of the findings that may have been made by the jury.

3 The applicant was 46 years of age at the relevant time. She met her husband, David Fitchett, in 1990 and they were married in 1993. Thomas was born 5 August 1994 and was 11 years of age when he was killed. Matthew was born 3 December 1995 and was then aged 9 years of age.

4 Some time after the children's birth, the applicant was diagnosed as suffering from post-natal depression and, later, from Hashimoto's thyroiditis and menopausal hormonal imbalances. A general practitioner prescribed a low level anti-depressant and also thyroid and hormonal supplements,[3] but did not consider that a referral for specialist treatment was required.

5 As time passed, the applicant became concerned about the relationship that her husband had with their sons, being of the opinion that he spent too much time working and playing golf and too little with them. After visiting a counsellor, Patra Antonis, she concluded that he was

... a bad father, selfish, and a procrastinator and that, because he was 'passive aggressive', he could not and would not ever change.[4]

She continued to suffer from depression, and it appears that, from about March 2005, the condition worsened to the extent that she would often spend the day in bed. Unsurprisingly, the relationship between the applicant and Mr Fitchett deteriorated to the extent that, on his return from work in the evening, she would go straight to bed and leave him alone to eat. They ceased sexual relations and slept in separate rooms.[5]

6 On 30 August 2005, the applicant informed Ms Antonis that she had made up her mind to leave her husband and was engaged in the necessary financial planning for this to occur. It appears that she reached that decision after reading a number of articles on Passive Aggressive Personality Disorder and coming to the conclusion that the situation was hopeless. Two days later, on Friday, 2 September 2005, she told him of her intentions and that she planned to take their sons with her. During the following day, he attempted to discuss the situation and ascertain whether their relationship was retrievable, however the applicant expressed no interest in this possibility. At one point, when she indicated to him that she would need financial assistance to support the boys, he responded that, in the circumstances, it would have been better if they had never had them. Mr Fitchett volunteered to leave the house so that the applicant and the children would have somewhere to live.

7 On the next day, he took the children bowling at Box Hill for several hours. The applicant spent that time cleaning and bundled up a large amount of the boys' clothes into garbage bags.

8 During Monday 5 September, according to the applicant, she kept the boys at home as she intended to take them to Sorrento and commit suicide. Later, however, she changed her mind and decided instead to kill them by giving each an overdose of prescription benzodiazepines, and then to kill herself by cutting off her head with a drop saw in the garage. She occupied the balance of the day running errands and completing preparations, including a visit to her sister's home at about 5:00pm. In her evidence, Mrs Fitchett's sister said that, in the course of their conversation, the applicant made a number of bizarre statements, such as, that the Federal Government had been behind the Port Arthur massacre and that a major mining company had been responsible for the death of Harold Holt. She said that she was concerned and that, 'deep down, [she] probably knew that the applicant wanted to kill herself ...'

9 On the morning of Tuesday, 6 September 2005, the applicant completed a few remaining errands, including the return of some papers to her sister's home and then, shortly after 11:00am, she posted a letter to Ms Antonis in which she stated:

6 September 2005

Dear Patra,

The last time we sat opposite each other in your cosy inviting home, I told you of my intentions of staying with David for the sake of the children until they were a little older.

I was determined to lie, cheat, be selfish and greedy in order to claim whatever I could in order to start a new life with Thomas and Matthew. Who was I kidding? The problem was...I don't know how to be selfish or greedy.

When I arrived home I lay on my bed and read numerous articles on Passive Aggressive Personality Disorder. The shock of realising that all my efforts - well, it doesn't matter. My spirit was broken - something inside me died. I told David it was over on the weekend because I'd already decided on my plan. I asked him to take the boys out on Fathers' Day and have a wonderful time as it would be his last as the 'Fitchett' family. When we had our talk he said that he should never have had children amongst other things. I know he loves the boys the only way he knows how. Unfortunately he had no good role model as a child. I on the other hand adore my boys who have given me more pleasure than I could ever have imagined.

Part of me despises David but like you kept telling me - - - He just can't help it.

Sadly I'm too broken to go on. Today the boys will be given an overdose as I cannot and wouldn't ever abandon them. If I had real support from somewhere from someone who really cared it may have been different. I had a few good friends who will be shattered by my actions and for that I am sorry.

As for David - his Father or sister. My Mother/Father - damaged sisters. What a list of support.

Thomas and Matthew have had a wonderful childhood to date and I wont let anyone hurt them - ever! They think we are going on an exciting trip today but I've told them they need to take some medicine so they wont' get air-sick. I'm not a coward - nor am I crazy. I see this as my greatest act of love. I'm not punishing David. I pity him.

Patra please don't feel you have failed me. On the contrary - - - I know now I was beyond help. I am so sorry for the pain I will cause you but you gave me enormous peace by mirroring me. Our [sic] now want peace forever. I have enclosed some treasures I want you to keep as well as the clock you so kindly loaned me.

Also the money for missing my appointment with you today.

Thankyou dear Patra for your love and kindness. You're gifted and beautiful and good - a real woman who I not only admired by [sic] selfishly wished you were my mum (sorry). You're too young (big sister).

Hugs and kisses

Donna.

10 After returning home, she drugged the boys with large amounts of benzodiazepines and put them to bed; Thomas in the master bedroom and Matthew in his own room. The applicant then used a sock to strangle Thomas after the drugs failed to have the effect that she anticipated. Matthew woke up, groggy and delirious. He had wet himself. The applicant assisted him to get up, changed him into clean clothes and put him back to bed. She then placed a pillow over his face to stop him breathing. The family dog tried to intervene, and she had to take it outside, before returning and strangling Matthew with a sock.

11 Approximately three hours after killing the boys, she swallowed a number of benzodiazepine tablets, and wrote a note to her husband.

Tues. Sept 2005.

Dear David,

I'm so so sorry for your pain upon the discovery of what I've done. I didn't do it because I'm angry with you. I forgive you for whatever hurt you caused me. You can't help it. I just couldn't abandon our beautiful boys. I've been dead for a few days and I just wanted peace. I overdosed the boys and when they were asleep I suffocated them & then strangled them in case they woke up. They put up a bit of a struggle but said nothing they didn't know it was me or it was happening to each other.

They were happy this morning and said they loved you and had a great fathers day. I pray I do not live through this. I've said some angry things but I truly forgive you. I hope you find the strength to go on without us. Please take care of the animals especially Gemma. She knows something is wrong.

If you can't please ring Sam Smith as I'm sure she will take Gemma back. The boys birds will not survive the heat on the decking - Get rid of the rats and put them in the aviary in Summer. They loved them.

I love you for your good qualities even though they are few and far between. Please get help because without a good father you did not deserve... [it then becomes illegible]

...

If I have one last wish it is to be cre[m]ated with the boys at Kew cemetery. They loved it there ...[it then becomes illegible again].

Love Donna.[6]

12 Mr Fitchett returned, at approximately 6:30pm, to find the applicant drug affected and the boys dead in bed. He did not realise that they had died some hours earlier and attempted CPR. During this time, the applicant went into the kitchen and inflicted some wounds to her arms, neck and groin. She then went to bed and stayed there until ambulance officers arrived. She was later admitted to the Thomas Embling Hospital as an involuntary patient. After treatment, Mrs Fitchett was transferred to a women's prison, but returned to Thomas Embling after making further attempts on her life.

13 The defence presented on behalf of the applicant at the subsequent trial was that she was suffering from a mental impairment such that she was unable to reason with a moderate degree of sense and composure about the wrongness of her actions and much of the evidence focused on this aspect.

14 The term 'mental impairment' is defined in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (the 1977 Act):

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that -

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

(1) A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.

(2) The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1) -

(b) subject to subsection (4), is to be determined by a jury on the balance of probabilities.

(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.

These provisions reflect the longstanding common law position with respect to the defence of insanity under the McNaughton rules as they have been understood in this country following the interpretation of them adopted by Dixon J in R v Porter.[7]

15 There is no need to set out the detail given at the trial and it is sufficient to state that there was a substantial amount of largely unchallenged evidence indicating that the applicant was, at least, in a highly emotional state, if not acting quite irrationally at relevant times. More directly, the defence adduced evidence from Dr Daniel Sullivan, a psychiatrist and Deputy Director of Forensicare, the body which operates the Thomas Embling Hospital. He interviewed the applicant some months after the events when she was in custody on remand. Dr Sullivan arrived at a final diagnosis of moderate to severe depression of a degree that indicated an inability to reason sensibly at the time. His views were tested in cross-examination and, in particular, it was suggested to him that there could well have been a punitive aspect to the applicant's conduct and that she may have been motivated, in part, by a desire to cause pain and distress to her husband.

[COUNSEL]: Just coming back to this motive, you are aware of the account given by her to Dr Leach at the Box Hill Hospital that her husband had told her he regretted having children?

[WITNESS]: Yes

[COUNSEL: You are aware of a comment to Louise Mitchell that she was upset by Thomas saying he wanted to be with his father?

[WITNESS]: Yes

[COUNSEL]: And you are aware of the proximity to Father's Day in relation to these events?

[WITNESS]: Yes

[COUNSEL]: Do they have a bearing, as far as you can see, on her motivation in relation to this?

[WITNESS]: She also made statements about this being the last Father's Day she would spend - sorry, that Mr Fitchett would spend with his children. Obviously I had to consider a range of possibilities for these events but the facts that you have led there to me don't necessarily indicate that the actions were punitive. That was one of the readings which I think one could take of a number of statements about Mr Fitchett, but there were other statements surrounding those ones, for instance, to Dr Leach, indicating that her children were safe and so forth which I thought cast a different light on those statements.

[COUNSEL]: Thank you. Just finally, Doctor, this appears to be a particularly difficult case owing to the lack of psychotic condition; would you agree with that?

[WITNESS]: Difficulty (sic) in what sense?

[COUNSEL]: Difficult from your point of view in relation to a jury ascertaining mental impairment or no mental impairment?

[WITNESS]: Certainly the grounds for a mental impairment defence are frequently significant brain injuries or intellectual disability or psychotic illnesses, but the test is not specifically defined that there must be a psychotic illness present. It goes instead to disorders of thinking and although there were no overt psychotic symptoms, the waiting and prioritising that Ms Fitchett gave to a range of aspects of her life at the time to me were gravely irrational, so awaiting that, for instance, that her children would be better off dead than being in the care of her husband, to me is an irrational thought which although not psychotic clearly indicates an inability to reason at the time.[8]

16 Professor Paul Mullen, the Director of Forensicare, who also saw the applicant after she was taken into custody, was stronger in his opinion but gave evidence to the same general effect:

[WITNESS]: The first question that is a relatively straightforward question for a mental health professional psychiatrist like myself is did the person have a mental disorder or [as] the law often terms it a 'disease of the mind' at the time of the offence. That's in this case I don't think much in doubt. She had a depressive disorder. She suffered on and off for depression for some years. Even the account of the husband who didn't notice much wrong did note that she had not been sleeping in the days before the event. We have the evidence of her sister of this very agitated odd disturbed state. The evidence of her friend who gave evidence in this court, again suggesting that something was profoundly different about her. Then she is examined by competent mental health professionals within hours and certainly over the few days following the event and they all come to essentially the same conclusion that she had a depressive illness. That depressive illness recovers with treatment and then relapses, which is what you would expect with a depressive illness. So for the first stage it doesn't seem to me that there is a great problem. She had a disorder of the mind, a disease of the mind and that was a depressive illness. The next question is how was this affecting her at the time of the offence. It certainly in no way disturbed her ability to know that she was carrying out a carefully planned murder/suicide - I use the term 'murder' perhaps wrongly - homicide/suicide, so she had planned to kill herself and to kill her children. To some extent we can gain insight into the reasoning that led to that, both from the suicide notes and from her statements afterwards. She believed that this was an act of love, this was a necessary act, that her children could not have a decent life without her. I think you don't need a psychiatrist to tell you that, to come to be the conclusion that it is better to be, to kill your children than to leave them in the care of friends and family her husband who, for all else, she made no bones about, cared and loved these children is a piece of reasoning which it is very difficult, I think, for the normal mind to get itself round. So this, to me at least, suggest that the depressive disorder was present, was in some way perverting her understanding of the world to such an extent that she actually believed that she was, and she said subsequently, that what she was doing was right. I don't think a loving, caring mother, which we know Ms Fitchett was, could come to such a dreadful and absurd conclusion unless something was affecting her reason and we know that what is likely to have been affecting her reason was the depressive disorder possibly aggravated by the sudden withdrawal of the antidepressants and the withdrawal of the thyroid hormones which may well have added to the agitation and disorganisation of the thought present at that time.[9]

17 The prosecutor called three witnesses in rebuttal.

18 Dr Precious Maguire was the applicant's general medical practitioner. She stated that the records maintained at her practice indicated that the only specialist referral related to the thyroid problem previously mentioned, suffered by the applicant. There was nothing in her attendances that led the doctor to the view that she was suffering from any serious depressive illness.

19 Patra Antonis said that she was a counselling psychologist. She had an honours science degree with a major in psychology from Monash University and a masters degree in counselling psychology from Swinburne University. She had seen Mrs Fitchett on thirty seven occasions between June 2004 and August 2005. Ms Antonis stated that, contrary to assertions made on behalf of the applicant, she had never advised her against seeing a psychiatrist and had never been asked about this possibility by her. In cross-examination she stated -

The work was directed to ameliorate the difficulties in the marriage and thereby inadvertently, that is as a side effect in that sense, we find that, research has demonstrated that when the wife particularly goes to psychotherapy, if there are marital difficulties and the husband comes along and really listens to that and cooperates, the symptoms of depression are lowered.

All right. But you saw quite severe symptoms of depression in your person being counselled Donna Fitchett, is that so?---The symptoms I saw in Donna Fitchett were no different to any other of my client group - - -[10]

20 However she accepted that she had noted that Mrs Fitchett was exhibiting 'severe symptoms' of depression. The time when she made that observation did not emerge in the evidence.

21 Dr Yvonne Skinner, a psychiatrist, who had been in practice for more than 20 years and who possessed extensive experience in the prison system in New South Wales said that due to the applicant's refusal to participate, she had not been able to conduct any examination.[11] She stated -

[WITNESS]: My view, after reading the documents that I had and hearing the evidence of the psychiatrists is that Ms Fitchett was - seems to have been affected by some fluctuating depression prior to the incident in which her children were killed but I didn't find enough evidence that she was suffering from a severe depression prior to the killings.

[COUNSEL]: Now, as far as the material you have examined, what material did you examine that led you to a view that there was depression and you say - well, what material did you examine that supported a diagnosis of depression?

[WITNESS]: I read the notes of the general practitioner which Dr Maguire has spoken about that the doctor had prescribed an anti-depressant which is commonly prescribed by general practitioners but that had been proscribed, (sic) it seems, had been stopped and then prescribed again. [12]

...

[WITNESS]: I have read the notes of the clinical psychologist, Ms Antonis, which indicated that there were discussions about her mental state that suggested that she was depressed but I thought from the notes only mildly depressed and I read the witness statements of her husband and I read also the report of Dr Sullivan and those things suggested that although there were episodes of depression at the same time that Ms Fitchett was capable of leading a relatively normal existence and that she did derive enjoyment from a number of activities, including that she, it seems from the statement of her husband, that even at the time that she seemed to have been, as her husband describes, in a bad mood, at the same time she was able to enjoy playing with the children, so her mood lifted when something good happened such as the children being around and being able to play with them, and she was able to engage with neighbours and in conversations visiting her sister with other people's children and taking the dog for a walk and so on, which are activities that, in my opinion, a severely depressed person would not engage in.[13]

...

[WITNESS]: Again, I think that a person who is suffering from a severe depression suffers impairment of their cognitive functions, that is their thought processes, their ability to concentrate and remember and perform calculations, so in my opinion a person with severe depression would not be able to successfully engage in share trading or in fact would probably not even maintain the interest to bother with something that required the kind of mental activities of share trading.[14]

22 With respect to her relevant experience, Dr Skinner said -

[WITNESS]: I have worked at the women's prisons and during that period part of my duties was to assess, and I was working mainly in the women's prison, part of my duties during that period was to assess any woman who had committed serious offences on admission because they were always considered to be possibly affected by mental illness and probably a suicide risk, so part of my duty was to assess them and to follow them through in that early period of certainly weeks and probably months after they first came to the prison and then to continue seeing them over time while I was still there and also after that, after I left the prison, I worked on the New South Wales Mental Health Review Tribunal where my duty was involved with forensic patients because of my experience and that again involved assessing women who had committed a killing and then following them through, so I had the experience of not only assessing people at the initial period but also following many of them for years through a period of follow up to keep track of their mental state and watch their progress.[15]

[COUNSEL]: After examining the depositions and evidence in this case, [are] you able to postulate any motive in relation to these particular murders?

[WITNESS]: It did seem to me, after assessing the evidence and looking at what was available, there certainly seemed to be an element of spousal revenge possibly involved in this case.[16]

The witness retained this position through her cross-examination by counsel for the applicant.

23 In view of the conclusion at which we have arrived, it is convenient to address first, ground 3.

24 Section 22 (2) of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 relevantly reads -

If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled -

(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings;

25 In the present case, as we have pointed out, the question, the possibility of a verdict of not guilty by reason of the mental impairment of the applicant had not only been raised in the evidence but was central to her defence to the charges. The trial judge was therefore obliged to explain to the jury both the available findings in the circumstances and, what are described in s 22(2)(a), as their 'legal consequences'. There has been no complaint concerning his Honour's compliance with the first of these requirements and it is apparent upon consideration of his charge to the jury that his instructions on this aspect were accurate and appropriate.

26 With regard to the possible verdicts and their consequences his Honour stated -

If you find that the Crown has proved each of the elements of murder beyond reasonable doubt and you are not satisfied on the balance of probabilities on the defence of mental impairment, then your proper verdict [is] going to be guilty of murder. If on the other hand you are satisfied of the elements of murder beyond reasonable doubt and you are persuaded by the defence that on the balance of probabilities the defence of mental impairment is made out, then your verdict is going to be a verdict of not guilty. But in those circumstances it will be necessary for the court later on to go through a separate hearing to deal with what is going to happen to the accused. It is important to bear in mind, as I said before, that whatever happens, the consequences are not a relevant consideration for you to take into account. You are not to look ahead to the possibility of what would happen to the accused depending upon your verdict. Your job is simply to decide the case on the basis of the evidence which is before you and come to the conclusion which logically and objectively it compels you to come.[17]

If, however, you are satisfied on the balance of probabilities that the defence has made out the defence of mental impairment, and your verdict is therefore not guilty because of mental impairment, there will be, as you may appreciate, something which is in the nature of a special verdict. Its effect is if you were to bring in such a verdict that Donna Fitchett would be given a further psychiatric assessment before appropriate orders were made according to the legislation and she would remain under the control of the court until that happened.[18]

27 No exception was taken by counsel representing the applicant at the trial to either of these passages. In this Court, however, it has been contended that, on neither occasion, did his Honour adequately inform the jury of the legal consequences of a finding of not guilty by reason of mental impairment.

28 The requirement that those consequences must be explained to them was introduced in the 1997 Act. Indeed, prior to that time, any reference to them would have been regarded as improper and possibly productive of a miscarriage of justice. The approach which had been previously adopted was that jury members were expected to arrive at their verdicts without reference of any kind to what might happen afterwards. This was consistent with the well established view of the jury role in a criminal proceeding. For example, then and now, only in quite unusual circumstances would a judge be permitted to advert to the possible sentence that could result from a conviction. The jury task has traditionally been confined to determining whether the prosecution has established its case beyond reasonable doubt and, as they have no part whatever to play in any subsequent sentencing process or disposition of the person before the Court, no mention is ordinarily made of those matters. Not only are such considerations ordinarily regarded as irrelevant to the jury's task, but their introduction has been seen to carry a significant risk of a miscarriage of justice as a consequence of the jury being diverted by their perception of the likely outcome.

29 However a quite different view was expressed by Barry J in R v Weise[19] where he indicated his concern that the absence of knowledge of the outcome could be equally dangerous and result in injustice in cases raising the defence of insanity:

In theory, the jury are not concerned with the punitive consequences resulting from their verdict, but it is to disregard realities to believe they do not advert to those consequences, because, after all, the main purpose of a criminal trial is to determine if the accused should be convicted and thereby made liable to legal punishment. Perhaps to frustrate attempts by counsel to distract juries from the duty of determining guilt dispassionately, judges commonly discourage any mention in counsel's address of the possible fate of the accused if he is convicted, though it requires little forensic ingenuity to evade the judicial ban by some oblique reference. But the verdict of acquittal in a trial where insanity is the only defence is rightly described as a special verdict because the legal consequences that follow it are special. I have always informed the jury what those consequences are, usually by regarding s420 to them. Since the creation of the Parole Board by the Penal Reform Act 1956, which came into force on 1 July 1957, I have told the jury of the duty of the Parole Board, under the provisions now found in s532(2)(a) of the Crimes Act 1958, to make yearly reports to the Executive upon a person kept in safe custody under the section, and have mentioned that the detention continues until the Governor, in the exercise of the powers conferred by s498 of the Crimes Act 1958, makes an order for release under supervision (s499), after the Executive has received a report from the Parole Board that the person may safely be permitted to be at large. My purpose in doing so is to ensure that the jury will be able to deliberate upon the issue without being distracted by a fear that if they find a verdict of not guilty on the ground of insanity, the accused, who they may consider should be kept in custody for protective purposes, may be set free.

30 Whatever uncertainty as to the situation in such cases might have arisen as a result of this statement was removed by the decision of the High Court in R v Lucas,[20] where the approach of his Honour was expressly rejected.

... the applicant's counsel, who presented the applicant's case with clarity and frankness, submitted that in point of law the trial judge was bound to inform the jury that if they returned a verdict of not guilty on the ground of insanity, the applicant would be held in some appropriate institution during the Governor-General's pleasure. The reason assigned by counsel for this requirement was, in the words of Barry J, in R v Weise [1969] VicRp 117; [1969] VR 953, at p 965, 'to ensure that the jury will be able to deliberate upon the issue [ie of insanity] without being distracted by a fear that if they find a verdict of not guilty on the ground of insanity, the accused, who they may consider should be kept in custody for protective purposes, may be set free'.

In our opinion, the law does not require any such direction. Indeed, the jury are not concerned with the consequences which may follow upon their verdict whether it be a verdict of guilty of the offences charged or a special verdict of not guilty on the ground of insanity. In our opinion, the judge is not bound to tell them, and counsel ought not to be allowed in any case to tell them, of the possible results of their verdict. No doubt, in places where capital offences remain, juries know what is the maximum punishment for the offence. Even then, in our opinion, it is undesirable that counsel be allowed to attempt to divert the jury from their consideration of the issues for their decision by emphasis upon the consequences of their verdict should they convict.

Not only do we think that a trial judge is not bound to inform the jury of the consequences of a verdict of not guilty on the ground of insanity, but in our opinion it is in general unnecessary and undesirable that he should do so. With great respect to so experienced a judge as the late Barry J, we are unable to accept as universally valid the reason he gives in R v Weise, supra, for giving the jury information as to the consequences which may follow on a verdict of not guilty on the ground of insanity. Certainly Dixon J, as he then was, did not so think when summing up in R v Porter [1933] HCA 1; [1936] ALR 483; 55 CLR 182, a case in which insanity was pleaded. There is, in our opinion, no need to complicate a trial and the resolution of the issues which arise in it by the introduction of what is truly, so far as the jury are concerned, an extraneous matter. It is, in our opinion, generally undesirable that reference should be made to the possible consequences which may ensue upon any verdict which the jury may properly return.

31 The Attorney-General, introducing the provision in the Legislative Assembly, made no mention of the fact that a quite important change was being effected by s 22(2)(a) of the 1997 Act. Nor did he explain its rationale. Nevertheless, we consider that the assumption can reasonably be made that the legislature was concerned that, in the absence of any information as to the processes that would follow a finding of not guilty by reason of mental impairment, some jury members might be reluctant to hand down an exculpatory verdict, perceiving that it could result in the immediate release of a disturbed and dangerous person when as a practical proposition in most cases, that would almost certainly not be the case. In other words, the provision was intended to adopt the approach favoured by Barry J.

32 If this is right, and it seems to be the most likely explanation for a fundamental shift in the approach to jury instructions and deliberations, Parliament can be taken to have perceived this risk as sufficiently serious that a specific provision requiring the judge to address it was necessary. Whether s 22(2)(a), which is confined to an explanation only of the legal consequences, of the particular verdict, achieves this objective is, as we later explain, certainly doubtful. But what is clear, is that the legislature has imposed upon a trial judge a statutory duty to provide it. Importantly, what the section requires is that the judge explain the legal consequences, not the possible or probable outcomes for the person before the Court.

33 In the present case, his Honour informed the jury that -

It will be necessary for the Court later on to go through a separate hearing to deal with what is going to happen to the accused

and that the effect of a verdict of not guilty by reason of mental impairment was that -

if you were to bring in such a verdict that Donna Fitchett would be given a further psychiatric assessment before appropriate orders were made according to the legislation and she would remain under the control of the court until that happened.

34 The difficulties with these statements are easily seen. The first does not provide any indication of the legal consequences, save to the extent of informing the jury that there would be a further hearing and that some form of decision would be made. It was really a description of procedure, not consequences. In the latter passage, his Honour indicated that, in the event that the verdict of not guilty by reason of mental impairment was returned, there would be a further psychiatric assessment before appropriate orders were made in accordance with the legislation. The jury were not told anything about what they might be. Regrettably, in our view, the judge's directions on this matter did not comply with s 22(2)(a). The jury were, in effect, told that there would be legal consequences; but no explanation was given concerning them.

35 For more than one reason, the task of a trial judge in providing the required explanation is difficult to perform and it is certainly understandable why his Honour was obviously reluctant to say much more than he did. Section 22(2)(a) has an inherent problem. If, as we have indicated, the provision was introduced to address the possibility of misunderstanding by a jury of the realistically possible outcomes of arriving at a verdict of not guilty on the basis of mental impairment, then the mere recitation of the legal processes and possible orders, the latter of which include the unconditional release of the person concerned, may not be either informative or serve to allay the perceived fears of jury members. On the other hand, the judge would have to be careful to ensure that the outcome was not influenced by indicating that the matter could be safely left to him or her to decide. Perusal of a number of recently delivered charges in the Trial Division of the Court has revealed that there is some confusion concerning what should or should not be said in this regard and the difficulty which has been encountered in resolving the tension. Judges generally appear to have been concerned to reassure jury members that the verdict would not result in the release of the person into the community. But one of the legal consequences is that a judge could so direct and, as we have already mentioned, there is a problem about a judge making statements that could be interpreted by the jury as pre-empting a later decision in a way that could affect the trial outcome. Further questions that must be considered relate to the nature of the explanation to be given and the degree of specificity required.

36 Some guidance with respect to these matters can be gleaned from the Act itself. The legal consequences are set out in s 23 and subsequent provisions. Under s 23:

If a defendant is found not guilty because of mental impairment, the court must -

(a) declare that the defendant is liable to supervision under Part 5; or

(b) order the defendant to be released unconditionally.

37 The Court has the power to make interim orders under s 24, and, in the event that an order for unconditional release has been made, the Director of Public Prosecutions can appeal to the Court of Appeal under s 25. Part 5 of the Act contains an elaborate set of provisions concerning the disposition of persons declared liable to supervision, relating to such matters as the period of the order, appeal rights, the consequences of breaches of such orders, variation and revocation of orders, reviews and the procedures to be followed at different stages.

38 There is no reason to suppose that Parliament contemplated that the explanation to be given by a trial judge had to include all the combinations of legal consequences that could arise; the purpose being to inform the jury concerning the nature of the decisions that would have to be made and that there was a process to be followed which would focus upon the question of the appropriate disposition of the person in the particular circumstances of the case. There is nothing in the language or apparent intent of the provisions that suggest that the judge is empowered to prognosticate upon or pre-empt the decisions to be later made with respect to the disposition of the defendant or to convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict.

39 What then should have been said? Obviously there is no set formulation. We set out below part of a charge given by Osborn J recently which, in our view, adequately provides the type of explanation and information required -

If you find the accused guilty, then there will be a further hearing before me and I will have to determine how he should be sentenced. If you find him not guilty, that is completely not guilty, he will be discharged and be free to walk away from the court. If you find him not guilty because of mental impairment, then there are two options open to me. The first is to declare that he is liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997) and the second is to order that he be released unconditionally. I would have to form a view on evidence as to what was the appropriate course to be followed.

A Supervision order, which is the first option that would be open to me, may commit the person to custody, or release the person on conditions decided by the court and specified in the Order. So you can see that those are the different legal consequences that follow from the different verdicts available to you. And you can see, as I have told you, that a verdict of not guilty because of mental impairment, has quite different consequences from a verdict of not guilty, ...[21]

40 The question then arises - is the deficiency in the charge presently under consideration to be regarded as constituting a fundamental defect in the trial or as having occasioned a miscarriage of justice. We are of the view that the answer must be 'yes' on both bases because Parliament altered the common law in a very significant respect in order to address what was seen to be a real risk in cases of this kind. We must give effect to that intention, notwithstanding that it requires a judge to give a direction which in part differs substantially in content and purpose from that described by Barry J in Weise. In that situation, the verdicts cannot stand.

41 When considering the contention that the verdict of guilty should be viewed as unreasonable or incapable of being supported by the evidence, it is important to remember that the onus of establishing the defence of mental impairment rests upon the party raising it. The language and intent of s 21 is quite clear in that respect. The question is one of fact to be determined on the balance of probabilities.

42 Very different considerations will therefore arise at the appellate level to those which have been the subject of attention in authorities such as M v R[22] which were concerned with occasions on which verdicts of guilty were returned. If the current matter were to be approached in a broadly similar fashion, however, the question would then become - 'must' a reasonable jury have been satisfied on the balance of probabilities that the applicant was at the time of the killing of her children suffering from a mental impairment that had the effect that she did not know that her conduct was wrong. This is a significantly different question from those posed for appellate courts by the judgments in M v R.

43 During the hearing before us, the Court sought the assistance of counsel concerning the proper approach to be adopted and whether the position was affected by s 569(4) of the Crimes Act 1958. Specifically, we requested submissions as to the circumstances in which the Court may substitute its own finding for that of the jury. We have had the benefit of considering written submissions of the parties drawing our attention to a large number of cases in England and others in this country, Hitchens v R,[23] R v Jenkins,[24] and R v Weise.[25] The matter is not without difficulty. On its face, s 569(4) which reads

S 569(4) If it appears to the Court of Appeal that the defence of mental impairment (within the meaning of section 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997) is established in relation to an appellant who was found guilty of an offence, the Court may quash the sentence passed at the trial and make an order or declaration under section 23 of that Act as if the appellant had been found not guilty because of mental impairment at the trial.[26]

appears to authorise the Court to make its own findings and act upon them.

44 This was essentially the view adopted in Jenkins where it was held that -

... the provisions appears to me to confer a power to examine the evidence and to act upon the Court's view of that evidence in appropriate cases. It is not merely a provision which can be applied in cases in which the court if no such provision existed, would think it proper to order a new trial under the provisions of s 6 and 8. Although it is applicable in such case, ... it can be applied also in cases in which the court is not prepared to hold that, in accordance with the principles relating to granting of new trials, the jury's verdict was so perverse and unreasonable as to require it to be set aside. The jury's verdict might not be unreasonable in that sense and yet the court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order ...[27]

45 A more restrictive approach can be seen in the judgment of the Court of Criminal Appeal in Tasmania in R v Hitchens[28] -

... we accept the view that the court's powers ... are, as a matter of law, conditional upon the existence of a verdict capable of being set aside upon a statutory ground of appeal related to the issue of insanity. In other words, the special powers of the court ... only fall to be exercised in the case of a verdict which although unimpeachable so far as it involves a finding that the accused was guilty of the act charged is defective by reason of some miscarriage of justice related to the issue of criminal responsibility.

The court must therefore find itself in the position where in accordance with Statute and principle it could order a new trial as indicated in the preceding paragraph before it can, as alternative, exercise the special power .... The subsection does not entitle the court to substitute its own view of the evidence for that of the jury as a matter of independent and discretionary review in the absence of some defect in the trial of the character referred to which would require the appeal to be upheld.

46 When the question of the construction of the equivalent provision arose for consideration in Victoria in Weise, Smith J stated -

... the following propositions should be accepted and acted upon be the Court:--

(1) S569(4) cannot be read down so as to apply only to those cases in which an appeal against conviction succeeds under s568(1).

(2) The Court has jurisdiction to make an order under s569(4) in all appeals in which it is satisfied that the appellant was, at the time of the act charged, insane so as not to be responsible according to law for his actions.

(3) The Court, however, in considering whether it can be so satisfied must have due regard to the consideration that the jury is the tribunal primarily responsible in law for determining whether the defence of insanity has been made out; and the Court must give to the jury's verdict the full weight which justly attaches to it in all the circumstances.

(4) Because of this the Court will not usually be able to be satisfied that the appellant was insane and that in consequence an order can be made under s569(4) unless (a) the weight which would ordinarily attach to the verdict rejecting the defence of insanity is impaired because, upon an examination of the evidence and proceedings at the trial, there are strong grounds for suspecting error in the processes by which the jury reached its conclusions or for regarding that conclusion as wrong or (b) the Court finds itself in a better position than the jury to determine the issue as to insanity.

(5) There being in Victoria no system of administrative review of the sanity of prisoners comparable with the English system already referred to, one consideration which in England has often been relied upon as a reason for not exercising the Court's power has no application in Victoria.[29]

47 The last-mentioned of these considerations would seem to be of much less significance in view of the quite substantial changes to the system introduced by the 1997 Act.

48 The wording of s 568(1) which deals with what could be called ordinary appeals against conviction is quite different from that in s 569(4). Apart from anything else, they address significantly different situations with respect to the onus and standard of proof. Under s 568(1) the Court addresses the contention that, for one reason or another, the verdict of the jury that the prosecution had proved beyond reasonable doubt that the applicant was guilty of commission of the charged offence should not be permitted to stand. By contrast, the question which arises under s 569(4) is whether the Appeal Court considers that the applicant has established a specific defence on the balance of probabilities.

49 Quite respectable arguments can be advanced for each of the approaches adopted in the cases as to the Court's powers under s 569(4). Tentatively, we are of the view that there is much to be said in favour of that of Smith J which is certainly consistent with the role ascribed to an appellate court in M v R. Were it necessary to determine the question, we would have needed to have it fully debated before us. However, whether the matter is approached by reference to s 568(1) or either view of the power under s 569(4), the answer in the present case is effectively the same. The jury were entitled to conclude that the defence of mental impairment had not been established. They were not obliged to accept the opinion of the expert witnesses called on behalf of the defence and their verdict shows that they were not satisfied on the balance of probabilities that, when all of the attendant circumstances were taken into account, the different possible interpretation of the applicant's behaviour for which the prosecution contended had been displaced. This Court is simply not in a position where, even if we were satisfied that we were so empowered, the substitution of our own view would be justified. The issues raised in a case of this kind are by statute and practicality quintessentially within the fact finding province and capacities of the jury. Appeal courts, which by reason of their role and limitations of the materials upon which their decisions must be based must be slow to overturn the jury's findings of fact and very reluctant simply to substitute their own views.

51 This ground can be addressed quite briefly. As we have earlier pointed out, the prosecution were entitled to rely upon the presumption in s 21 of the Act that the applicant was not suffering from a relevant mental impairment at the time that she killed her two children. In this respect, the position under the Act is precisely the same as it had been for many years previously.

52 As we understand the position, in cases where the Crown did not challenge the defence claim, the so-called consent insanity cases, the prosecutor would often call the psychiatrists who had examined the accused on behalf of the defence or the other supporting witnesses. The procedure was followed as it was fair and simple.

53 On the other hand, where the issue was contested, this would not be done and the witnesses would be called as part of the defence case.[30] Regularly, medical experts engaged by the Crown would be present throughout the whole trial and, if considered necessary, would be called after the close of the defence case. This was never perceived as involving a splitting of the Crown case. Often, the witness would not have had any opportunity to examine the accused or be able to respond to the opinions expressed by the experts called by the defence until all of the relevant information was available. As counsel for the Crown pointed out in his written submissions, there is no reported case in which the prosecution has been required to adduce evidence from a defence expert in support of a defence of insanity as part of the Crown case and none in which the long established practice has been perceived as unfair to the person before the Court.

54 In this case, counsel for the applicant at the trial applied for a permanent stay of the proceeding on the ground that the prosecution's refusal to call Professor Mullen who had examined his client at the Crown's request and was known to have formed the opinion that she was mentally impaired at the critical time, would be likely to cause injustice. He argued that the situation was different from that normally pertaining, in that the Crown had engaged Professor Mullen and then chose not to call him. The arguments advanced in this Court were essentially the same as those presented before his Honour and addressed by him in a ruling that is annexed to this judgment. The various authorities to which his Honour's and our attention have been drawn deal with the very different situation arising from the prosecution's obligation to prove its case.

55 The Crown did not have to accept the opinion of Professor Mullen and his evidence did not relate to any element of the offence charged that had to be established beyond reasonable doubt or defence which the prosecution was required to exclude according to that standard. No issue of non-disclosure arose or practical forensic difficulty presented to the applicant because it was left to the defence to call him.

56 His Honour's ruling was clearly correct and this ground, accordingly, fails.

57 It follows from our discussion with respect to ground 3 that the verdict must be set aside and, the other grounds having failed, that a retrial be directed.

1 This is an application for a permanent stay of the proceeding on the ground that the Crown's refusal to call Professor Mullen will be productive of injustice.

2 Professor Mullen is Professor of Forensic Psychiatry at Monash University and the Clinical Director of the Victorian Institute of Forensic Mental Health, and he has prepared a report as to whether in his opinion the accused has a defence of mental impairment. The Crown has provided a copy of the report to the defence and offered to make Professor Mullen available to be called by the defence at trial. But the Crown refuses to call Professor Mullen because it considers that his report was based on an incomplete understanding of the facts - notably, of things said and done by the accused since she was arrested.

3 The application for stay is put on the basis that the Crown's refusal to call Professor Mullen is contrary to the prosecution's obligation to call all available material witnesses unless there is good reason not to do so. Mr Thomas, SC, who appears for the accused, relies in particular on the expositions of that principle in R v Apostolides[31] and Dyers v R.[32]

4 Further, Mr Thomas submitted, the Crown's refusal to call Professor Mullen would be unfair to the accused because the jury might think that the Crown rejects Professor Mullen's opinion on some principled basis (which in Mr Thomas' submission is not the case);[33] and the problem is exacerbated, Mr Thomas said, because it is possible the jury may learn that the Crown regularly calls Professor Mullen in mental impairment cases.

5 Additionally, Mr Thomas contended, it would be unfair to permit the Crown to cross-examine Professor Mullen; for, as he put it, the Crown may use the opportunity to elicit evidence of admissions made by the accused to Professor Mullen as to her intention at the time of committing the alleged offences.

6 The Crown opposes the application on the basis that mental impairment is not part of the Crown case. Rather, as Mr Silbert, SC (who appears with Ms Gwynn for the Crown) submitted, it is for the accused to establish a defence of mental impairment on the balance of probabilities and, if the accused does call evidence of mental impairment, the Crown will be entitled to call evidence in rebuttal.

7 I do not consider that the Crown's refusal to call Professor Mullen would be productive of injustice. It is perhaps surprising in view of Professor Mullen's standing and reputation and also because his opinion is apparently shared by Dr Danny Sullivan (who is the Assistant Clinical Director of the Victorian Institute of Forensic Mental Health and an honorary lecturer in the Department of Psychological Medicine at Monash University). In the scheme of things, one might have thought that the matter would proceed under s.21(4) of the Crimes (Mental Impairment Unfitness to be Tried) Act 1997. But in the end that is a matter for the Crown, as the decisions in Whitehorn v R,[34] and R v Apostilides[35] make plain; and clearly, if the defence does raise the issue of mental impairment and adduces evidence, then the Crown may call evidence in rebuttal.[36]

8 Nor does it seem to me that there is much risk of the jury inferring that the Crown has rejected Professor Mullen's opinion on a principled basis. For the jury will be directed that, in contradistinction to the burden of proof assumed by the Crown in relation to the elements of the offence charged, the defence bears the burden of proof in relation to the defence of mental impairment on the balance of probabilities,[37] (see Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 21(2) and (3)).

9 The fear that the Crown would use the opportunity to cross-examine Professor Mullen to expose admissions made by the accused as to her intention is, I think, also misplaced. The accused's intention at the time of the commission of the alleged offences is a matter on which the Crown is bound to lead all available evidence upon which it seeks to rely or which is otherwise material. So, depending on the content of any questions asked in cross-examination, it would be open to the defence to object to cross-examination designed to elicit evidence of intention.[38]

10 Mr Thomas submitted that, even if so, he would still be left in the dark as to the sort of evidence the Crown might call in rebuttal of any evidence he adduces in support of the defence of mental impairment.

11 It seems to me, however, that, if that is so, it is a consequence of the defence's own making. I have been told that the Crown has repeatedly sought to have the accused examined by Dr Skinner, who it is said is also an eminent psychiatrist, but that the defence has refused the invitation. The Crown's attitude is, therefore, that it proposes to await any evidence that might be called in support of a defence of mental impairment; if it is called, to have Dr Skinner sit through it; and then to express his opinions based on what he has heard.

12 In my view such a course is not unfair. To the contrary, it is really the only course open in circumstances where the accused refuses to make herself available for Dr Skinner's evaluation. It would be otherwise if the Crown already had a report from Dr Skinner. If that were so, the Crown would be bound to make it available to the defence forthwith. But, as I am told by the prosecutor, that is not the case.

13 It is then necessary, I think, to establish that the accused is fit to stand trial and for that purpose I propose to hold an investigation tomorrow afternoon where a jury will be empanelled to investigate that issue in accordance with s 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. By that time it is expected that Dr Sullivan will have had a further opportunity to examine the accused in order to ascertain whether or not she is fit to stand trial, and it is thought that he will be available to give evidence of his findings.

14 If the jury finds that the accused is not unfit to stand trial, I propose that the trial begin on Wednesday morning. If not, we will assess the course to be followed as the facts become clearer.

[1] The Director of Public Prosecutions has appealed against the sentence subsequently imposed. In view of the conclusion at which we have arrived, it is not necessary to address that matter.

[2] The brief narrative of the circumstances relating to the deaths of the two children has been prepared from the trial transcript summaries provided to the Court and the judge's sentencing remarks. We do not understand any of the matters covered to be the subject of controversy.

[7] [1933] HCA 1; (1933) 55 CLR 182.

[11] Dr Skinner's opinion was based upon her consideration of the depositions, trial transcript, the reports and evidence of Professor Mullen and Dr Sullivan, and the notes of Dr Maguire and Ms Antonis.

[19] [1969] VicRp 117; [1969] VR 953, 965-6.

[20] [1970] HCA 14; (1970) 120 CLR 171.

[21] Transcript of Proceedings, Charge, R v Gemmill (Supreme Court of Victoria, Osborn J, 12 November 2003.)

[22] [1994] HCA 63; (1994) 181 CLR 487.

[23] (1963) 64 SR (NSW) 20.

[25] [1969] VicRp 117; [1969] VR 953.

[26] Crimes Act 1958, Part VI, s 569.

[27] (1963) 64 SR (NSW) 20, 29.

[28] [1962] Tas SR 35, 41-42.

[29] [1969] VicRp 117; [1969] VR 953, 968.

[30] See R v Smith (1910) 6 Cr App R 19, R v Casey (1947) 32 Cr App R 91, R v Starecki [1960] VicRp 22; [1960] VR 141, R v Jeffrey [1967] VicRp 51; [1967] VR 467, R v McMahon [2004] VSCA 64; (2004) 8 VR 101. See also Bratty v A G of Northern Ireland [1963] AC 386 and R v Meddings [1966] VicRp 42; [1966] VR 306.

[31] [1984] HCA 38; (1984) 154 CLR 563, esp 575.

[33] Cf R v Armstrong (1998) 4 VR 533, 538.

[34] [1983] HCA 42; (1983) 152 CLR 657, 674 (Dawson J).

[35] [1984] HCA 38; (1984) 154 CLR 563, 575.

[36] See R v Chin [1985] HCA 35; (1985) 157 CLR 671, 677 (Gibbs CJ and Wilson J), and 685 (Dawson J); Heydon, Cross on Evidence, Australian Edition, [17630].

[38] See R v Chin [1985] HCA 35; (1985) 157 CLR 671, 686; and R v Soma [2003] HCA 13; (2003) 212 CLR 299, 308[28]-[31].