R v Gemmill [2004] VSCA 72

1 I agree, for the reasons given by Eames, J.A., that the applications for leave to appeal against conviction and sentence should be dismissed.

2 I agree that each of the applications should be dismissed, for the reasons stated by Eames, J.A.

3 On 17 November 2003 a jury sitting in the Supreme Court at Shepparton found the applicant guilty of the murder of his wife. On 23 January 2004 the applicant was sentenced to 18 years' imprisonment with a non-parole period fixed of 14 years. A declaration was made that the applicant had served 879 days pre-sentence detention. The applicant now seeks leave to appeal against conviction and sentence.

4 The applicant and his wife, Robyn, were married in April 1975 and had two sons. There had been disagreements from time to time during the marriage, with respect to finances, and they separated for a few months in 1995 but then reconciled and together purchased a home at 25 Federation Street, Nathalia. In April 2001 Robyn Gemmill commenced a relationship via the Internet with a man whom she sometimes met on weekends. The man was unaware that Mrs Gemmill was married but was confronted by the applicant when he had telephoned Mrs Gemmill at her home and the phone had been answered by the applicant. In the telephone conversation the applicant accused the man of "rooting his wife", and the applicant threatened to kill him. Soon after, the deceased moved out of the family home, leaving a note for the applicant announcing that she was separating and would live

5 In consequence of these events the applicant was admitted to the mental health facility at the Goulburn Valley Health Service from 9 June 2001 to 11 June 2001. He was further admitted to the Nathalia District Hospital from 19 to 21 June 2001. As emerged in the evidence, there is no doubt that the applicant was suffering depression on these occasions and he had expressed suicidal ideas. He told his sister-in-law that he still loved Robyn and would take her back again if she returned to him. Mrs Gemmill returned to Nathalia on 9 July 2001 but resided in the caravan park in the town. On 11 July 2001 the applicant obtained an intervention order against his wife in the Magistrates' Court at Shepparton prohibiting her from coming within 200 metres of the home, he having asserted that she had broken into the property a few days earlier and had taken some of her property from the house. The applicant initiated proceedings in the Family Court with respect to the property and orders were made by consent on 21 August 2001 in which a number of items of jewellery were identified which were to be returned to Mrs Gemmill. The applicant took those items to a jeweller to be valued on that day. Arrangements had been made between the applicant and his wife for Robyn Gemmill to attend the property on Sunday 26 August 2001 in the company of her sister, Gayle, and two other friends in order that she could collect the property from her husband. When she attended at the house some of the items of jewellery were not produced. On that occasion Mrs Gemmill made it very clear to the applicant that so far as she was concerned the marriage was over, that she would leave town on 14 September 2001 and that she wanted nothing further to do with him.

6 The applicant was angry about the division of property in the family law settlement and was also angry about his wife's relationship with the other man. He made statements to friends and acquaintances to the effect that he ought to kill his wife. Those who heard the utterances did not believe he intended to carry out the threats. On 27 August the applicant went to the shop where the jewellery was being valued and collected the property. He spoke to his sister-in-law that night and seemed agitated about the valuation and, in particular, as to the amount of jewellery which was claimed by his wife. Later that night he contacted his wife and arranged for her to attend the house to collect the jewellery. She drove to the house some time after 9 p.m. on Monday 27 August 2001 and when she arrived she left her handbag on the front passenger seat of the car and the keys in the ignition.

7 On 28 August 2001 at 8.25 a.m. a male voice - it being the voice of the applicant, on the Crown case - rang Nathalia Hospital and said "I need a doctor at 25 Federation Street quickly". A doctor drove to the address and upon arrival the applicant's brothers were also at the home looking for the applicant. Upon gaining entry to the house they found the deceased lying in a pool of blood and the applicant was on the floor beside his wife, holding her, and was having difficulty breathing, it later being established that he had stabbed himself to the chest, had slashed his wrist and cut his throat. He said "I'm sorry. I love you. Bloody Gayle". He also said "Don't let Gayle get the jewellery". Gayle Hassan was the sister of the deceased and had attended with her sister on 26 August 2001.

8 On 5 September 2001 the applicant was interviewed by police about the death of his wife. He gave an account of an argument about the jewellery developing as he and his wife were having a cup of coffee. He said that he tried to grab his wife and a struggle started and he then took a knife from the bookshelves in the back room and stabbed her. She continued to struggle and the knife was broken. He went to the kitchen to kill himself, believing his wife was dead but then returned to the room whereupon his wife got up and came at him with the broken blade of the knife in her hand. He struggled with her again and they fell to the floor. He then slashed her throat with a larger knife which he had taken from the kitchen. He tried to take his own life by cutting his wrist and throat and also wounding his chest.

9 At the trial the principal issue was whether the applicant had made out the defence of mental impairment as defined by s.20 of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997. That section reads as follows:

"20(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."

10 The terms of s.21 provide for the onus and burden of proof. Section 21 reads as follows:

"21(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) -

(a) is a question of fact; and

(b) 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."

11 Section 25(1) states that the common law defence of insanity is abrogated but, as Mr Coghlan acknowledged, the terms of s.20 substantially incorporate the common law test of insanity as it had developed in Australia: see, The King v. Porter[1]; R. v. Matusevich & Thompson[2].

12 Psychiatric evidence concerning the applicant's mental state at the time of the killing was given by Dr Andrew Forrester who was called by the prosecution and by Dr Lester Walton, who was the sole witness called by the defence. Although there were substantial areas of agreement between the two expert witnesses they disagreed as to whether it was probable that at the time of the killing the applicant was mentally impaired within the terms of s.20. Whilst they were in agreement as to the issue raised by s.20(1)(a) - both agreeing that the applicant probably knew the nature and quality of the conduct which caused the death of his wife - they disagreed as to the issue raised by sub-paragraph (b), namely, whether at the time of the killing it was probable that the applicant knew that his conduct was wrong.

13 The jury retired to consider its verdict at 12.35 p.m. on Thursday, 13 November 2003. The following day at 4.46 p.m. the jury returned with a series of questions which had been written on two sheets which were cryptically expressed but which his Honour interpreted (and the jury did not demur as to his interpretation) as discussed below. The first question asked "Re Dr Walton, more probable than not, can you explain the statement, in relation to our conclusions?" His Honour directed the jury that neither witness had said that the opinion they had stated was one which they expressed beyond doubt. He told the jury that they could use the opinions expressed in reaching their own conclusions but they were not bound by them. "This is a trial by a jury, not by experts. In the end, you have to form your own conclusions as to the facts on the evidence as a whole, and in particular, it is a question of fact whether you are satisfied that the accused man suffered from mental impairment at the time he killed his wife." The judge told them that while Dr Walton had expressed his opinion as to what was probable it was for them to make up their own minds "as to how useful, how persuasive, if you like, how relevant, those opinions are, and then to use them as you see fit, in forming an opinion on the evidence as a whole."

14 Question 2 asked "Life experience, re (sic) in using this in our conclusion in relation to evidence."

15 His Honour told the jury in answer to that question that they must proceed on the basis of the evidence "using your common sense and your experience of life to assess it. So you use your experience in helping you decide what you accept were the relevant facts and what you think was important about those facts, and ultimately you have to come to a conclusion as a matter of fact." His Honour went further in his discussion about the use of common sense and said "your common sense is related to your life experience, and just as you assess facts on a day to day basis in working out whether you think something is more likely than not, you are entitled to do that as a jury, and the advantage you have in doing it as a jury is that you have the experience and the combined common sense, if you like, of 12 of you to apply to the problem."

"So the short answer to the question is, you can use your life experience, but you can't substitute it for the evidence. You must decide the case on the evidence you've heard in this court." (1028/29)

17 His Honour added emphasis to that by telling the jury that they could not use psychiatric opinions which they had obtained from a magazine or from other sources apart from the evidence in the case. His Honour said that would not be using life experience.

18 Question 3 asked for a clarification of the way the words "more probable than not" related to the idea of the balance of probabilities. His Honour gave them an explanation, saying that it meant more likely than not and said "the defence only has to go that far." He drew the distinction between proof on the balance of probabilities and proof beyond reasonable doubt.

19 Question 4 asked "Can a member of the jury rely on Dr Walton's evidence rather than Dr Forrester's evidence, re Dr Walton was treating the accused from shortly after the event and Dr Forrester only saw him once?"

20 His Honour told the jury that they were entitled to prefer the evidence of one witness to another or to accept some parts of a witness' evidence and not other parts. He told them that at the end of the day it was for them to decide not only whether they accepted something but how important that matter is in their decision. He told the jury that it was a relevant fact that Dr Walton had been "treating" the accused from shortly after the killing and that Dr Forrester had only seen him once. He told the jury that they could weigh up the basis of the different opinions that they had heard and reminded them of the contentions of counsel as to why they should prefer one witness to the other. He told them it was open to them to prefer one psychiatrist's opinion to another.

21 The last question was "Can a person's character be taken into consideration or is it irrelevant to making your conclusion or verdict?" His Honour gave the jury an appropriate redirection as to that question.

22 After completing his directions concerning those questions the foreman asked a further question from the jury box, asking "As an individual, do we need to be 100 percent sure one way or another in our verdict, or is it enough for a juror to be say 50 percent, 70 percent or 80 percent sure, to come to our conclusion?" His Honour discussed the difference between proof beyond reasonable doubt and proof on the balance of probabilities. And as to the latter said "All you really have got to do is to tip the balance. So you've just got to get to the state where it is not 50/50." No complaint is now made to his Honour's direction in response to this question.

23 Two grounds of appeal as to conviction were argued, a third ground being abandoned. The grounds of appeal are:

"1. The verdict is unreasonable and cannot be supported having regard to the evidence of Dr Walton and Dr Forrester.

1. 3. The learned trial judge erred in that he gave no or insufficient directions to the jury in relation to:

(a) the conflict of evidence between Dr Forrester and Dr Walton;

(b) the bearing that the psychiatric evidence had:

(i) for the test for mental impairment; and

(ii) for the considerations which the jury may use to accept or reject the opinions advanced."

24 Much was made by Mr Thomas of what he submitted were the superior qualifications and experience of Dr Walton over Dr Forrester. Dr Forrester was a consultant at the Thomas Embling Hospital and obtained his Bachelor of Medicine and Bachelor of Surgery from the University of Edinburgh in 1991. He had a Bachelor of Science degree in Psychology, gained in 1993, and had been a member of the Royal College of Psychiatrists since 1997. In 2000 he obtained a Master of Philosophy degree in Psychiatry and had been a specialist forensic psychiatrist since 2001 and had worked at Thomas Embling Hospital since February 2003. Between 1998 and 2003 he worked at the East London Forensic Service. He had given expert evidence in more than thirty criminal trials in London and in two mental impairment cases in Victoria. Dr Forrester first interviewed Mr Gemmill on 4 April 2003. In common with Dr Walton he had examined all of the hospital and medical records relating to the applicant, but in addition, and unlike Dr Walton, he had also examined the transcript of the evidence of witnesses who attested to the applicant's behaviour in the period leading up to the killing.

25 Dr Walton graduated in 1975 and commenced practice in psychiatry in 1977. In 1983 he undertook post-graduate study in Canada and in 1984 was elected a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He had practised as a psychiatrist from 1983 at Pentridge Prison and at Mont Park Hospital and had been involved in over 15,000 cases, the majority of which were civil cases for which he wrote opinions. He had examined approximately 550 people charged with murder or attempted murder and had made numerous court appearances. Apart from the qualifying degrees he had a Diploma in Criminology from the University of Melbourne.

26 The differences between their respective qualifications and experience were fully identified to the jury and were noted by the judge as being relied on by defence counsel.

27 There was much upon which the psychiatrists agreed and their points of divergence were clearly identified to the jury, but it is necessary to summarise their evidence in some detail, given the arguments which were advanced on the application.

28 Dr Walton had first seen Mr Gemmill on 7 September 2001. He concluded that as at that time the applicant was suffering major depressive illness. Dr Walton, in all, had seen Mr Gemmill five times over a period of eight months. He concluded that the applicant had suffered major depression prior to the killing and at the time of the killing he would have been in the grip of depressive illness which he concluded would not have enabled him to reason with a moderate degree of sense and composure about the rightness or wrongness of what he was doing. In reaching his conclusion Dr Walton said there were factors which indicated that he had been suffering a very severe depression at the time of the killing. The first factor was the attempted suicide and his determination to carry that through and, secondly, the level of violence employed against his wife "was not the action of a man who was composed". Dr Walton said that the actions he took did not make sense, in that there was just insufficient reason for him to have taken such drastic action.

29 Dr Walton said that depression was a condition which tends to fluctuate, typically over hours and that in his opinion the applicant's depression was more severe at the time of the killing than it was before or after the event. Where he differed from Dr Forrester's assessment was that whilst he agreed with Dr Forrester's assessment of the severity of depression before and after the killing - and that he was able to reason rationally before and after the killing - that did not mean that it was probable that his condition was the same throughout.[3]

30 Dr Walton said that whilst there was no evidence that the applicant was psychotic before or after the killing it was "possible" that he was psychotic at the time, having regard to the level of violence that was used. He agreed that there was no evidence that he ever lost touch with reality but in his view at the time of the killing he was then suffering severe depression. He said that it was relatively uncommon to conclude that a person did not know that a killing was wrong when the person was not suffering delusions or hallucinations at the time. He concluded that the type of depressive condition from which the applicant suffered was relatively uncommon in the community. He agreed, however, that the conduct of the applicant in the days before the killing was not then consistent with mental impairment under the Act.

31 Dr Walton stressed that he particularly relied on the violence that had been employed, as an indicator of the mental impairment at the time of the killing, because that was the only clear factual evidence relevant to the time of the killing. The fact that the applicant may have made a telephone call immediately after the killing would not seriously damage his opinion, he said. He could find no other explanation for the severity of the violence apart from serious depression at the moment of the killing.

32 Dr Forrester took a different view. He said that the medical history of the applicant showed no evidence that he had ever suffered a serious mental disorder such as schizophrenia or other psychotic symptoms. Nor had he ever lost contact with reality. He concluded that the applicant was suffering a moderate depressive illness at the time of the killing. He said it was extremely difficult for a person who was suffering moderate depression to lose the capacity to reason so as not to know right from wrong. It would be more likely to be so if the person was suffering delusions and hallucinations. The videotape record of interview provided support for his opinion, he said. There was nothing in the material demonstrating that the applicant did not know that what he was doing was wrong. He was able to give a coherent account of his behaviour and display logical thinking. He was able to give an account of what had happened in the house between himself and his wife, and his answers about not being proud of what he had done demonstrated that he knew that the events that had taken place were wrong. When he said, in answer to question 698, "it was bad enough doing it", that suggested that he had an intact memory of the events, which meant almost certainly that he knew at the time that it was wrong. His statements "bloody Gayle" and "don't let Gayle get the jewellery", made at a time when he was injured, showed that he could focus on things and had not lost touch with reality.

33 Dr Forrester said the statements of witnesses as to the applicant's words and conduct prior to the killing were consistent with moderate depression, and his conduct in having argued on the Sunday with Gayle Hassan and his wife about the jewellery showed that he was able to think logically and coherently. There was no material to suggest that he would not have been in the same state over the following two to three days, including at the time when he killed his wife. If it was he who made the telephone call to the hospital then that was enormously significant, as evidence of coherent and logical thought and conversation. Dr Forrester agreed that he was suffering a recognised mental illness, depression, but it was not such as to deprive him of the ability to reason with a moderate degree of sense and composure as to right and wrong.

34 Dr Forrester agreed that he could not say unequivocally that the applicant was able to reason between right and wrong with a moderate degree of composure but was of the opinion that the totality of the evidence including the record of interview suggested that that was so. As to the attempted suicide, he was able to recall how he tried to kill himself and suicidal attempts are consistent with moderate depression and do not mean that he was not able to reason. He did not consider that there was any time where the applicant had lost contact with reality.

35 Mr Thomas, for the applicant, submitted that the trial judge failed to direct the jury as to how they might approach and resolve the conflict in the evidence of the two psychiatrists. He submitted that the trial judge could not properly discharge his duty to put the defence case unless he adequately brought home to the jury the significance of Dr Walton's evidence. He submitted that the opinion of Dr Walton was worthy of much greater weight than that of Dr Forrester, given his substantially greater qualifications and experience as a forensic psychiatrist. The jury, therefore, ought to have been directed that they could not reject Dr Walton's evidence unless they had first carefully considered the following matters:

1. The substantial differences in the respective experience of the two experts;
2. Dr Forrester saw the applicant only once, on 4 April 2003, whereas Dr Walton first saw the applicant on 7 September 2001 and had seen him on a regular basis for eight months in 2001 and 2002;
3. Dr Forrester only saw the video-taped interview of the applicant when it was played at trial and then regarded it as "enormously important" whereas Dr Walton had seen the video at least twice;
4. Dr Forrester had graded the seriousness of the level of depression suffered by the applicant according to a scale used in Britain, namely, the International Classification of Diseases (CD 10), whereas Dr Walton had applied the grading system most commonly used in Australia, DSM-IV;
5. The differences in the evidence of the two witnesses, and the importance they attached to the question, as to whether there had been any loss of contact with reality experienced by the applicant at the time of the killing or at any other time;
6. The apparent difference in their views as to whether the level of a person's depression might alter over a relatively short period of time. Dr Walton was of opinion that the fact that a person was not suffering from a mental illness to such a degree as to amount to mental impairment both immediately before and immediately after a killing would not be at odds with a conclusion that the person was, nonetheless, mentally impaired at the moment of the killing. Dr Forrester, on the other hand, took the view that it was more probable that the person's level of depression would remain the same throughout that period and if the person was not mentally impaired before and after the killing it was unlikely he would have been impaired at the time of the killing.

36 It is to be noted that not one of those propositions was advanced to the judge by counsel then appearing at the trial as a matter on which directions should be given to the jury.

37 Additionally, Mr Thomas submitted that the jury should have been directed that for the defence of mental impairment it was not necessary to establish that the person experienced a loss of contact with reality or suffered psychosis or formal thought disorder. Further, the jury should have been told that the test for mental impairment which applied in Victoria is different to the test applied in England, in particular that the "gloss" which appears in parenthesis in s.20(1)(b)[4] (i.e. assessing how the conduct would be perceived by reasonable people), did not apply in the United Kingdom, and the jury should be told that it was in the United Kingdom that Dr Forrester's training and most of his experience arose. Finally, the jury should be told that Dr Forrester had not given evidence about the question whether he was applying the English test rather than the Australian test.

38 In the course of argument before us, Mr Thomas further expanded the range of directions which he said ought to have been given. He submitted that the jury should have been directed that whilst they were entitled to apply their common sense they were bound to have regard to the fact that they were assessing the conduct and state of mind of a person who was mentally ill and that the evaluation of mental illness was a matter in the province of medical experts. They should not therefore substitute their own view as to the common sense of the situation for the expert evidence. The jury should have been told that the question of the effect of depression and mental illness on the capacity of a person to know whether actions were right or wrong was not a matter of common sense but of expert evidence.

39 The suggested directions discussed in the last two paragraphs were not the subject of a request for directions at trial. In addressing the broad complaint that the directions were generally inadequate Mr Thomas identified a number of discrete themes, and it is convenient to deal with those themes separately, although there was a good deal of overlap in the arguments advanced.

Direction as to the Superior Status of Dr Walton

40 Mr Thomas contended that the judge should have used the authority of his office to warn the jury that before they could reject the evidence of Dr Walton they would need to have regard to the fact that he was substantially more experienced and qualified than Dr Forrester to give an opinion in this case. Counsel submitted that in so directing the jury the judge would have been doing no more than meeting the obligation discussed by the High Court in Sodeman v. The King[5] of ensuring that the jury had "an adequate opportunity of appreciating the strength of the prisoner's case".

41 In my opinion, in the circumstances of this case, the direction sought by Mr Thomas would have amounted to the judge directing the jury that Dr Walton's evidence should be preferred over Dr Forrester's. Mr Thomas did not refer us to any authority for the proposition that the trial judge had a right, let alone a duty, to direct a jury that where there is conflict between witnesses they should regard one expert witness as superior to another, whether in a mental impairment case or any other. It is a radical notion, which cuts across the boundaries between the functions of judge and jury.

42 It was for the jury to decide whether they regarded the evidence of Dr Walton more highly than that of Dr Forrester, not for the judge to direct them to that effect. Furthermore, the submissions ignore the fact that the onus of proof rested on the applicant.

43 In the absence of direct authority, Mr Thomas sought assistance from a number of appellate cases[6] where the jury had ignored uncontradicted and inherently credible evidence, in circumstances suggesting an unreasonable verdict. I will discuss those cases under other headings but suffice to say that, in my opinion, they do not provide support for the direction for which Mr Thomas contended, as to the requirement that deference be given to the opinion of Dr Walton.

44 Mr Thomas submitted that because the issue was a medical/psychiatric one and not one which could be determined by common sense it was necessary for the judge to give directions to ensure that the jury would not give greater weight to their own assessment of what common sense would dictate rather than the expert evidence of Dr Walton.

45 Mr Thomas relied particularly on a judgment of Smithers, J. in Taylor v. R.[7] In that case the evidence for insanity called by both Crown and defence was to the same effect, but the jury rejected the evidence. A standard direction had been given to the jury about the evidence of an expert being that of an opinion but that the question for the jury was one on which they had to make the decision and in so doing they were "free to make up your own mind, the expert evidence is there to assist you, you are not bound to adopt it."

46 Connor and Franki, JJ., in their joint judgment in Taylor, held that a jury could not reject unanimous medical evidence where there was no other evidence casting doubt on it[8]. Smithers, J., in a separate judgment, held[9] that the direction given in that case might have induced an impression in the jury that the distinction it drew between evidence of fact and opinion meant they could decide the question of insanity on facts other than the opinion stated by the expert witnesses, thus, calling on the latter evidence only if they felt the need to be assisted by it in reaching their conclusions. Were they to have approached the case in that way then the jury, his Honour held, would not have properly understood the evidentiary basis of the case for the accused where "the only real evidentiary basis of that case was that constituted by the medical opinions considered as evidence of the critical facts."

47 In Taylor Smithers, J. observed[10] that in a case where insanity was an issue it might well be for practical purposes that the only evidence on the critical facts bearing on the question of insanity was to be found in the opinion of the expert witnesses. His Honour observed[11]:

"Where the fact in issue was the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason. But if the jury are under the impression that on the relevant issue they must look at the 'facts' given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law. And it appears to me that there was great danger that the impression of the jury would have been that referred to above. If so, that would explain the verdict which it is reasonable to think was quite unexpected."

None of the considerations discussed in that passage are applicable to the present case. The psychiatric evidence in this case as to mental impairment was not one way. In deciding whether the onus of proof had been met by the applicant there was no risk that the jury would disregard the expert evidence and substitute their own lay opinions as to the mental state of the accused, and neither the questions asked nor the verdict itself, give any hint that the jury has acted unreasonably and in defiance of uncontradicted evidence.

48 In the present case, nothing said by his Honour in his charge, nor in the way the case was presented, could have led the jury to the conclusion that they were free to decide the case on the basis of "common sense", without reference to the opinions of the experts. The questions which they asked, in my opinion, reflect the fact that the jury were very conscious of the centrality of the opinions of the experts for making their own decision.

49 Common sense retains its place in deciding disputed questions of fact on issues of mental impairment, just as it does in other areas where scientific or technical evidence is being relied on in a trial, and where the factual bases upon which the opinions rest are matters which the jury can legitimately evaluate for themselves. In Taylor v. R. Connor and Franki, JJ. held[12]:

"As we have pointed out, the learned trial judge told the jury in his summing that '... the expert evidence is there to assist you, you are not bound to adopt it'. The authorities make it clear that the jury is entitled to examine the nature and quality of the medical evidence and should do so in a broad and common sense way. It may, for example, examine the nature of the killing and the conduct of the accused and his history, but the jury's verdict must be founded on the evidence."

50 Nor was this a case, such as Mizzi v. The Queen [13], R. v. Weise[14], or R. v. Matusevich & Thompson[15], where there was a danger that, unless warned by the judge, the jury might fail to appreciate the real meaning of the expert evidence and would assess the conduct of the applicant by attributing to him the kind of reasoning that a person without mental illness would employ.

51 In Mizzi the Court acknowledged that there may be cases where definite expert opinion evidence was that the conduct and motivation of an accused was that of an insane person, but where the common sense opinion of ordinary persons, which was based on their experience of sane people, might suggest otherwise. The Court held in Mizzi that where the unanimous evidence strongly supports the defence of insanity then the jury must be warned about the danger of discounting the expert evidence by applying the reasoning of sane people to the accused's conduct. The necessity for a direction, as their Honours held[16], derived from the obligation of the trial judge to give an adequate explanation of the real meaning and effect of the expert evidence. In my opinion, for reasons I will discuss more fully later, there was no such deficiency in the directions in this case.

52 Weise was another instance where the jury had rejected unanimous medical evidence. The expert witnesses concluded that Weise was acting under an acute psychosis at the time of the killing. Barry, J. held[17] that given the definite nature of that evidence it would have been perverse for a jury to reject it, but his Honour said that it was understandable that the jury had difficulty with that evidence, because the conduct and motivations of the accused appeared rational, yet the medical evidence was that it was not rational, despite appearances to the contrary. Barry, J. held that a direction was required to alert the jury to the danger of assessing the conduct by the standards of a sane man[18]. In his separate judgment, Smith, J. held that the jury's rejection of the medical evidence indicated that they had failed to understand the real issue in the case which they had to decide as to the insanity defence. The fault lay in the inadequacy of the judge's directions in explaining that issue, so as "to remind the jury of the full strength of the appellant's medical evidence".[19]

53 R. v. Matusevich & Thompson[20], was another case where a jury rejected a defence of insanity and it was contended that the trial judge had not adequately explained to the jury how they should have used the evidence of psychiatrists in the case. Once again, although the expert evidence was all one way on the question of insanity there was evidence that the accused had engaged in conduct which gave an appearance of it being rational and of the killing having a sane motive. The Full Court held "it would have been prudent to warn the jury of the danger of testing the defence of insanity by the kind of reasoning which a sane person would employ[21].

54 In my view, there was nothing in this case which required a special direction to be given to the jury such as was discussed in Mizzi, Weise, or Matusevich and Thompson. There was no dispute between the psychiatrists that the applicant suffered depression, nor as to the level of depression which he suffered both before and after the killing. They agreed that neither before and after the killing did he demonstrate mental impairment within the meaning of s.20. Dr Walton agreed that the conduct of the applicant in his dealings with other people before the killing did not disclose mental impairment. However, he said that that was not inconsistent with him being mentally impaired at the time when the killing took place.

55 Thus, the jury had to determine whether what occurred at the time of the killing was that the applicant became a person acting under the impact of mental impairment which denied him the capacity to appreciate the difference between right and wrong (as was the opinion of Dr Walton) whereas both immediately before and immediately after the killing he was capable of so reasoning. The alternative explanation was that his level of depression remained constant throughout and the killing was a result of his anger, not a product of an incapacity to differentiate between right and wrong which only arose at the time of the killing.

56 As Connor and Franki, JJ. observed in Taylor[22], a jury may not reject unanimous medical evidence "unless there is other evidence which can displace or throw doubt on that evidence." That being so, and given the contention by Mr Thomas as to the deference that lay jurors were obliged to give to the opinion of an expert witness as to mental illness (or, more specifically, the deference they were obliged to give to the opinions of Dr Walton) it is important to appreciate the extent to which the opinions of Dr Walton were based on judgments as to the facts as to which the jurors, having heard the evidence, were quite capable of making their own assessment.

57 Thus, Dr Walton said the extreme nature of the violence and what he regarded as the lack of explanation for it, and the fact that the difficulties the applicant had been experiencing were not the sort that would commonly lead to a killing, all suggested that he must have been suffering from a fairly severe depression at the time of the killing, so that there came a point where it was probable that he did not know what he was doing was wrong. When that point arrived, Dr Walton said, was unknown.

58 In cross-examination, counsel put to Dr Walton the fact that in his record of interview the applicant appeared to have a memory of the events that had taken place at the moment of the killing. Pressed by counsel, after conceding that the applicant was not shown to be mentally impaired before or immediately after the killing, Dr Walton agreed that the level of violence used and "the lack of explanation" for it was "centrally relevant" to his conclusion that the applicant was mentally impaired at the moment of the killing. He agreed he could not exclude the possibility he was simply angry and violent, for reasons that seemed valid to him.

59 Dr Walton said that anger and depression were not mutually exclusive but added that at no stage had the applicant said he was angry with his wife. Counsel referred him to an answer in the record of interview where he had expressed anger towards her. Dr Walton also said that anger over the jewellery could not provide a rational explanation for the violence used and his statements about "Gayle" showed a preoccupation with the jewellery. Dr Walton agreed that the fact that he could not see any rational reason for the killings led him to conclude that the applicant had been mentally impaired. He agreed that it was a matter of judgment, and he could not point to any positive evidence that demonstrated the applicant had been mentally impaired, whereas he conceded that there was evidence before and after the killing which indicated that he was not at those times so impaired.

60 Dr Walton said that it would be irrational to kill someone over a dispute about jewellery, but added, "I guess it's for the jury rather than me ultimately to conclude how rational or how logical" such matters were in provoking a killing. He agreed that an irrational basis for killing did not mean the person was unable to reason right from wrong, but said it indicated a level of distortion of thinking not inconsistent with an inability to reason right from wrong. He said it was his opinion that the applicant was not in a state of moderate composure, in terms of his thinking, and added: "But ultimately that's the jury's question, not mine".

61 In my opinion, Dr Walton's concession as to the jury's role in evaluating the factual matrix of the killing was appropriate. That concession carried with it his acknowledgment of the jury's capacity to evaluate for themselves how rational the decisions by the accused may have been, and whether the opinion of Dr Forrester as to that conduct and motivation should be preferred to his own. In the present case there was evidence which could throw doubt on the opinion of Dr Walton, and the jury were entitled to reject his evidence. There were many instances where Dr Walton appeared to place weight on matters which the jury might have concluded were not established on the evidence. In my opinion, the jury were quite entitled to closely scrutinise such evidence and to reject the basis for the opinion of Dr Walton and to prefer that of Dr Forrester.

62 Mr Thomas submitted that Dr Forrester had misunderstood the requirement for mental impairment, under s.20, to be that the person must have lost contact with reality, in the sense of suffering a psychosis, if he was to be assessed as mentally impaired. Such a state was not necessary, Mr Thomas submitted, and Dr Forrester's approach treated mental impairment as a "black and white" situation, ignoring the fact that mental illness was a question of degree, and that a point might be reached where the person was unable to appreciate right from wrong - because he could not assess that question with a "moderate" degree of composure - and yet not have reached a point of manifestly psychotic behaviour.

63 In my opinion, although Dr Forrester gave evidence about loss of contact with reality, he did not impose a test which was at odds with s.20.

64 Dr Forrester said that a person who, by reference to the scale he employed, was suffering mild rather than moderate depression, would "typically" not be unable to distinguish right from wrong because such a person would not have lost contact with reality in the way that people with serious mental illness may have. He said that there was no evidence that at any time in his medical history, leading up to the killing, the applicant had psychotic symptoms. He said that "it's extremely difficult, for a person who's suffering from a moderate depression, to . . . to lose the capacity to reason in the sense that they don't know what they're doing, or that they don't know what they're doing is wrong". He agreed with the proposition that it was "more likely" that a person did not know right from wrong if he presented "with an array of psychotic symptoms" and exhibited deluded thinking. People suffering psychosis, he said, often presented with a condition known as "formal thought disorder" and those people, in particular, might be thought not to know right from wrong.

65 In my opinion, Dr Forrester was doing no more than identifying one way in which the evidence might establish mental impairment and saying that in this case there was no evidence which would have clearly demonstrated mental impairment in that way. On my reading of Dr Walton's evidence, his approach was no different.

66 Dr Walton said that whilst there was no evidence that the applicant was psychotic before or after the killing it was "possible" that he was psychotic at the time, having regard to the level of violence that was used. He agreed that there was no evidence that he ever lost touch with reality but in his view at the time of the killing he was then suffering severe depression. He said that it was relatively uncommon to conclude that a person did not know that a killing was wrong when the person was not suffering delusions or hallucinations at the time. He concluded that the type of depressive condition from which the applicant suffered was relatively uncommon in the community. He agreed that the conduct of the applicant in the days before the killing did not reflect that he was then mentally impaired in the terms of s.20.

67 During the trial it was not suggested, either by counsel or by Dr Walton, that by his reference to the absence of psychosis Dr Forrester was applying an impermissible test of mental impairment. It would have been clear to the jury, in my opinion, that both witnesses agreed that the degree of depression suffered immediately before and after the killing did not constitute mental impairment and that the disagreement between them was whether at the moment of killing the condition of the applicant changed to such a degree that he was unable to discern right from wrong. Dr Forrester did not say that such a state had to be one of psychosis or a loss of contact with reality before it would constitute mental impairment. The suggestion that Dr Forrester had misunderstood what constituted mental impairment under the Act is one that was raised on appeal but not at trial, and in my opinion has no substance.

Was the Wrong Diagnostic Scale Applied by Dr Forrester?

68 Mr Thomas contended that Dr Forrester applied a basis for measuring the level of mental illness of the applicant which was not applicable under the Victoria Act.

69 Dr Walton said that there was no clear evidence that Mr Gemmill was psychotic at any stage but said that under the Australian classification system, which is the diagnostical and statistical manual of the American Medical Association (DSM-IV), a diagnosis of major depressive episode would be divided into two branches, psychotic and non-psychotic depression. Under the British system of classification which Dr Forrester had used, which is known as the International Classification of Diseases (CD10), a distinction is drawn between mild, moderate and severe depression.

70 In cross-examination Dr Forrester said that the term "moderate depression" which is used in the CD10 classification is roughly the same as a diagnosis of major depression in the DSM IV classification. Dr Forrester gave extensive evidence about the meaning of the expression "moderate depression" under the classification system he had used, which he said was one of the two recognised systems. He acknowledged the gradations between psychotic and non-psychotic depressions employed under the DSM IV scale.

71 Significantly, when Dr Walton gave evidence he did not suggest that the difference between himself and Dr Forrester derived from an erroneous use of the CD10 classification or a failure of Dr Forrester to apply his mind to the Victorian Act.

72 Dr Walton said that Dr Forrester rated the depression as moderate rather than severe because there was no evidence of psychosis, and whilst Dr Walton agreed that was so, said that the approach he adopted - which he said was "the common approach in Australia" (rather than saying it was the only valid, approach, I note) - was to rate "the mood itself as an independent phenomenon, and evaluate how mild, moderate or severe the lowering of mood is" and on that basis he would describe the mood disturbance as "at least moderate, and very likely severe, at the time of the incident. So really we're in agreement, in terms of, I think, a comment about the illness, just stating it in slightly different terms". The disagreement, he said, was whether the mood was likely to have remained constant throughout, so that at the moment of killing he was mentally impaired under s.20 although he was not in such a condition immediately before or after the killing.

73 I am not persuaded that the opinion of Dr Forrester was unreliable or invalid because he used the CD10 scale, or that the verdict was in any way rendered unsafe or unsatisfactory because of his evidence in that respect.

74 A closely related complaint was that the jury were not told that Dr Forrester was adopting an approach (so it was claimed) to the assessment of insanity or mental impairment which relied on the law in England, not the law applicable in Victoria by virtue of s.20 and the common law. This complaint also has no substance. Dr Forrester gave evidence in terms addressing the provisions of s.20 and he was not challenged that he was failing to address the terms of the section. Furthermore, Dr Walton did not suggest that the difference in the conclusions reached was due to some fundamental difference in the standards being applied to the assessment by himself and Dr Forrester. He conceded that it was a question of judgment, having regard to the known facts and in the absence of direct evidence of the mental state of the applicant at the time of the killing.

Failure to Adequately Present the Defence Case to the Jury

75 There is no doubt that a trial judge is under an obligation to focus the minds of the jury on the real issues in the case and in so doing to fully and clearly tell the jury what was the case for the accused: see R. v. Defrutos[23]; R. v. Anderson[24], Alford v. Magee[25]. The complaint that the directions were inadequate was put in a number of different ways. Overall, it was said that this was a case where the significance of Dr Walton to the defence of mental impairment required particular emphasis. It was suggested that the evidence was very complex, but there was a danger that the jury would not appreciate that to be so. Unless they were appropriately directed, counsel submitted, the jury would not gain an adequate appreciation of the strength of the applicant's case for a verdict of mental impairment.

76 The learned judge gave an extremely thorough summary to the jury of the evidence of the two psychiatrists. He did so, he said, because their evidence was central to the case. The summary of the evidence of Dr Forrester occupied some 30 pages of transcript and that of Dr Walton some 19 pages. The judge gave an extensive and very thorough summary of the addresses of counsel, and in my opinion very clearly set out the competing contentions as to the mental impairment defence and the evidence bearing on the question. I find it difficult to conceive how his Honour might more clearly and fairly have assisted the jury.

77 Dr Forrester may have had less experience as a forensic psychiatrist than Dr Walton but he was qualified to give the opinion he did, and it was not suggested otherwise by counsel at trial, or before us. This was not a case where the science was so complex that a jury were not capable of evaluating the conflicting expert evidence and resolving the issue before them. That distinction was discussed by the High Court in Velevski v. The Queen[26], a murder case in which the issue before the jury was not insanity but whether, on the one hand, the deceased wife of the accused had murdered her children before killing herself or, on the other hand, whether all had been victims of the accused. The question was whether it was open to the jury to be satisfied beyond reasonable doubt that it was not a murder-suicide by the deceased wife, having regard to the scientific evidence which was called at trial. That, of course, was a case in which the accused carried no onus.

78 The Crown led evidence from pathologists suggesting that as a matter of expert opinion the suicide hypothesis could be rejected. Counsel for the appellant contended that a direction ought to have been given that because there were differences of opinion between experts which could not be properly evaluated by the jury (because of the scientific nature of the evidence) it would be dangerous for them to accept the expert evidence which was adverse to the appellant. Although not couched in precisely those terms, the submissions of Mr Thomas were very similar in the present application, and he placed some emphasis on Velevski.

79 Gleeson, C.J. and Hayne, J., in rejecting the appeal in Velevski, held[27] that it was not an instance where the issue was one requiring sophisticated scientific analysis and their Honours did not have to decide what appropriate direction might have been given if there had been a conflict of scientific evidence. Gaudron, J., although dissenting as to the outcome, discussed the principles governing the use by the jury of conflicting scientific evidence. Her Honour cited Chamberlain v. R.[28], which was cited with approval in Chamberlain v. The Queen (No. 2)[29] and observed[30] that where conflicting evidence was given about matters outside the ordinary experience or knowledge of a jury then the conflict would ordinarily only be capable of resolution by the jury if the evidence was based on matters of common knowledge or experience or on assumptions with respect to matters about which the jury could reach its own conclusions. Her Honour continued[31]:

"If the conflicting evidence of experts is not based on matters or assumptions with respect to matters upon which the jury can reach its own conclusions but, instead, is evidence of 'opinion on matters of science within disciplines of which each (is) a master, and at a level of difficulty and sophistication above that at which a juror ... might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation', a jury cannot, by reference solely to that evidence, resolve that conflict in a manner 'which would eliminate reasonable doubt'."

80 Gaudron, J. concluded that having regard to the inconclusive nature of the expert evidence in Velevski the jury could not have excluded a reasonable hypothesis consistent with innocence.

81 In their joint judgment Gummow and Callinan, JJ. noted the complexity of the evidence in Chamberlain v. The Queen (No. 2) but held as to scientific evidence or expert evidence which did not fall into a special category such as that in the Chamberlain case:

"That juries are entitled to prefer one group of experts over another is, as a matter of general principle clearly established."[32]

"The correct position is, in our opinion, that conflicting expert evidence will always call for careful evaluation. So too, because expert evidence by definition deals with generally unfamiliar and technical matters, it will always need careful, and usually more elaborate treatment by the trial judge in directing a jury about it.

Juries are frequently called upon to resolve conflicts between experts. They have done so from the inception of jury trials. Expert evidence does not, as a matter of law, fall into two categories: difficult and sophisticated expert evidence giving rise to conflicts which a jury may not and should not be allowed to resolve; and simple and unsophisticated expert evidence which they can. Nor is it the law, that simply because there is a conflict in respect of difficult and sophisticated expert evidence, even with respect to an important, indeed critical matter, its resolution should for that reason alone be regarded by an appellate court as having been beyond the capacity of the jury to resolve".

82 The present case is not one which involves the complexity of scientific analysis that arose in the Chamberlain case. In my opinion, the issues in dispute between the psychiatrists, albeit not a matter of common, lay, knowledge, were nonetheless capable of effective evaluation by the jury in this case. Although the scientific understanding of depression as a mental illness has no doubt been the subject of much study in recent years the evidence in this case was no different in character to that which juries have commonly addressed in trials where insanity or mental impairment was in issue.

83 In the course of his lengthy charge the judge highlighted the areas of difference between the two psychiatrists and the evidence on which they each relied in support of their conclusions. In my respectful opinion the learned trial judge in this case comprehensively, clearly and very fairly summarised the defence case, highlighted the issues and gave the jury very great assistance in their task. There could have been not the slightest doubt in the minds of the jury as to what the issues were in the trial, nor as to what factors caused the divergence of opinion between the psychiatrists and on what issues they shared common ground. It was, in my opinion, an exemplary charge. True it is that the failure of trial counsel to take exception to the charge can not prevent the overturning of a conviction where a miscarriage of justice has occurred: see R. v. Clarke and Johnston[34]; R. v. M.J.M.[35] This, however, was an instance where, in my opinion, the absence of complaint as to the charge in the respects about what complaint is now made is very telling. In my view a reading of the charge gives a strong impression (no doubt even stronger upon listening to it delivered orally) that it was both comprehensive and clear as well as being very fair.

84 In my opinion, none of the additional directions which Mr Thomas contended ought to have been given were required in the circumstances of this case. As to ground, 1, in my view there was ample evidence on which the jury could properly have based its verdict. Having regard to the evidence, and to the onus of proof as to the defence of mental impairment, the verdict has not been shown to have been unreasonable[36].

85 The grounds argued in support of the application for leave to appeal against conviction have not been made out and the application should be dismissed.

86 There was only one ground of appeal on the application for leave to appeal against sentence. The applicant claimed that the sentence was manifestly excessive. The applicant was aged 49 years at the time of the killing and is now aged 52 years. He had no prior convictions and substantial character evidence was produced favourable to him. He was a former football player in the Murray Football League and a coach of senior and junior teams, having a reputation as a fair player and, in personal terms, as a quiet and unassuming person who did not exhibit any violent tendencies. Many witnesses attested to the fact that the killing was out of character. Witnesses also attested to how depressed he had been about the break-up of his relationship.

87 The main complaint with respect to sentence was that His Honour did not give appropriate weight to the mental condition of the applicant. His Honour concluded that the depressive illness suffered by the applicant did not reduce the mental element of intention to commit the crime and that in the circumstances whilst he would provide some "muting" of the principle of general deterrence when imposing sentence no more allowance with respect to general deterrence was appropriate. Mr Thomas submitted that the sentence reflected the fact that sufficient moderation of the principle of general deterrence was not applied. His Honour concluded "your moral culpability may be lessened in that you were the subject of very strong emotions at the time of the killing but your psychiatric condition cannot be regarded as substantially exculpating you in a moral sense". This was not a case where the mental illness was of the degree of seriousness discussed in R. v. Anderson[37] or R. v. Tsiaras[38]. Where an offender suffers a mental disorder or severe intellectual handicap general deterrence is not eliminated but still applies, sensibly moderated.[39] In my opinion neither the sentence itself nor anything said by His Honour in his sentencing remarks reflects that his Honour placed insufficient weight on the history of depression of the applicant.

88 The complaint as to manifest excess in the sentence does not admit of much argument. In my view, the sentence has not been shown to be manifestly excessive. This was a deliberate and vicious killing, done in anger, and which the jury concluded was not done whilst the applicant was mentally impaired. The range of mitigating factors discussed by the learned sentencing judge reflect the care and comprehensiveness of his consideration of all relevant factors. No error has been disclosed in the approach adopted nor in the sentence imposed.

89 In my opinion, the application for leave to appeal against sentence should be refused.

[1] [1933] HCA 1; (1936) 55 C.L.R. 182, at 189-190 per Dixon, J.

[2] [1976] VicRp 47; [1976] V.R. 470 at 476.

[3] As I later discuss (see [69]-[70]), Dr Walton and Dr Forrester employed different grading systems for depression, but Dr Walton agreed that his use of "severe" was not at odds with Dr Forrester's use of "moderate", in that both agreed that before and after the killing he was not mentally impaired. The critical issue was whether the condition, using the language of either grading system, reached such a level of severity at the moment of the killing as to constitute mental impairment.

[4] As discussed by Dixon, J. in R. v. Porter, at 189-190.

[5] [1936] HCA 75; (1936) 55 C.L.R. 192, at 219, cited by Smithers, J. in Taylor v. R., at 611.

[6] Taylor v. R. (1978) 22 A.L.R. 599; R. v. Weise [1969] VicRp 117; [1969] V.R. 953; Mizzi v. The Queen (1960) 195 C.L.R. 659.

[13] (1960) 195 C.L.R. 659, at 663.

[14] [1969] VicRp 117; [1969] V.R. 953.

[15] [1976] VicRp 47; [1976] VR 470.

[20] [1976] VicRp 47; [1976] V.R. 470.

[23] [1998] 2 V.R. 589 at 597-598

[24] [1996] VICSC 17; [1996] 2 V.R. 663 at 666-667

[25] [1952] HCA 3; (1952) 85 C.L.R. 437, at 466.

[26] [2002] H.C.A. 4; (2002) A.L.J.R. 76 at 402; (2002) A.L.R. 187 at 233.

[28] [1983] FCA 78; (1983) 46 A.L.R. 493 at 574.

[29] [1984] HCA 7; (1984) 153 C.L.R. 521 at 558.

[34] [1986] VicRp 64; [1986] V.R. 643.

[35] [2001] VSCA 235.

[36] Applying Chidiac v. The Queen [1991] HCA 4; (1991) 171 C.L.R. 432, at 443, 451, 458, 461; M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, at 492-494.

[37] [1981] VicRp 17; [1981] V.R. 155.

[38] [1996] VicRp 26; [1996] 1 V.R. 398.

[39] See R. v. Yaldiz (1998) 2 V.R. 376 at 381; R. v. Kelly [2000] VSCA 59; (2000) 112 A.Crim.R. 307 at 311; R. v. Vodopic [2003] VSCA 172.