R v Kucma [2005] VSCA 58

2. I agree with the reasons and orders proposed by Batt and Eames, JJ.A.

7. On 19 February 2003, in a trial which had commenced on 17 February 2003, a jury in the County Court at Melbourne, after a retirement of less than two hours (including the luncheon adjournment), found the applicant, Richard John Kucma, who was born in May 1975, guilty of intentionally causing serious injury to Anthony Rule (count 1), not guilty of intentionally causing injury to Tiina Harkko (count 3) but guilty of recklessly causing injury to her (count 4). The maximum custodial penalties applicable to counts 1 and 4 were imprisonment for twenty years and five years respectively. The applicant admitted certain prior convictions and the balance were in due course proved. They amounted in total to 86 and were recorded in 13 court appearances between 1993 and 2000. They were largely for theft and other offences of dishonesty, driving offences and drug offences, but did include resisting arrest, a firearms offence and, most significantly, a conviction in the County Court on 3 February 2000 for causing serious injury intentionally, affray and causing injury recklessly (two counts), for which a total effective sentence of three years' imprisonment was imposed with a non-parole period of two years.

10. On 30 April 2003 the County Court judge sentenced the applicant to be imprisoned for three years and six months on count 1 and for twelve months on count 4, making a total effective sentence of three years and six months. He fixed a non-parole period of two years and three months.

13. On 13 May 2003 the applicant gave notices of application for leave to appeal against conviction and against sentence. New grounds of the proposed appeals were substituted by order of the Registrar on 7 February 2005. At the commencement of the hearing of the applications this Court gave leave to amend the grounds of each application further. I find it necessary to consider only the application relating to conviction. The final form of the grounds on which that application was based (with the omission of a ground no longer relied on) were:

2. In light of the fresh evidence regarding the applicant's mental condition [at] the time of the alleged offences, the verdict of the jury on count 1 should be set aside as there is a significant possibility that the jury having considered such evidence would:

(a) not have been satisfied that the applicant formed an intention to cause serious injury, and/or

(b) have found the applicant not guilty by reason of mental impairment.

3. In light of the fresh evidence regarding the applicant's mental condition at the time of the alleged offences, the verdict of the jury on count 4 should be set aside as there is a significant possibility that the jury having considered such evidence would:

(a) not have been satisfied that the applicant foresaw the probability of causing injury, and/or

(b) have found the applicant not guilty by reason of mental impairment.

The further evidence relied on consists of the affidavit of the applicant's solicitor, Cameron Marshall, sworn 7 February 2005 and in particular the exhibits to that affidavit.

23. Before the grounds and fresh evidence can be considered it is necessary to summarise the offending and, in particular, the factual and opinion evidence that was before the jury as to the applicant's mental state.

26. Constable Mark White, on instructions, conveyed the applicant in the early hours of 5 November 2001 from the Keilor Downs Police Station, where he found the applicant in an interview room, to the Sunshine Adult Psychiatric Unit for him to be assessed by a medical practitioner. When Constable White first saw the applicant his eyes were glazed and his speech slurred and that led the constable to think that he might have been affected by alcohol or some drug. The applicant was "pretty co-operative" when they reached the hospital. They had to wait 25 to 30 minutes. During that time the constable and the applicant spoke. The latter informed the former that the drugs, being speed and heroin, had got to him and he was concerned that the staff at the hospital were out to get him. He was very talkative. He became a little abusive towards staff, making threatening gestures and using abusive language. When the constable spoke to him he was fine. He followed his instructions. Once the doctor arrived and spoke with him, the applicant became quite aggressive and angry about finding out that he was staying at the hospital. He was given an injection. For that he needed to be restrained as he was kicking his legs around, waving his arms and screaming and yelling abuse towards everyone in the room. After the constable had assisted in restraining the applicant he left. In cross-examination, the witness said that, while they were waiting, the applicant said that he did not feel comfortable in hospital and wanted to go home. He said that "people" were out to get him; and that the government was plotting a conspiracy against him. At one time after the doctor arrived the applicant began to ramble incoherently.

29. The applicant was admitted involuntarily to the Sunshine Adult Psychiatric Unit pursuant to s.12 of the Mental Health Act 1986 by the psychiatric registrar at about 3 a.m. Amongst the cumulative criteria for the involuntary treatment of a person under the Act is that the person appears to be mentally ill (s.8(1)(a)), mental illness being defined in sub-s.(1A), but subject to a number of exclusions in sub-s.(2), as being "a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory". It does appear from later sections that an involuntary treatment order may in certain circumstances be made even though the criteria in s.8(1) are not met.

32. The victim the subject of count 1, Mr. Rule, was a registered psychiatric nurse. He said that the applicant was in the high dependency unit and that by shortly after 2 p.m. he had become a little more agitated and was adamant that he wanted to go home and was yelling. (Other evidence showed that he had refused his afternoon medication.) A duress alarm, for more staff to attend, was activated and Rule returned to the unit. He looked through the perspex window of the door and saw the applicant standing a foot or so away from the door on the other side. He opened the door and the applicant punched him in the face, straight on the nose, dazing him. The applicant ran off and hit a female psychiatric nurse, Tiina Harkko, the victim the subject of count 4, in the eye as she was coming to the unit in response to the duress alarm. The applicant was subdued by staff and given a sedative injection. Rule suffered swelling, black eyes and bruising to the inner lip in addition to a fractured nose, which required minor reconstructive surgery. Harkko sustained a bruised left cheek bone, but an x-ray revealed no fracture. Numerous other witnesses to the assaults were called, but their evidence need not be summarised.

35. Expert evidence was led from Dr. Douglas Bell, a consultant psychiatrist employed at the Victorian Institute of Forensic Mental Health at Thomas Embling Hospital in Fairfield, where he was the authorised psychiatrist and assistant clinical director for in-patient operations at that service. He stated that he had twice been consulted by the applicant before 5 November 2001. The applicant had told him that he took amphetamines. Dr. Bell gave evidence of the characteristics of amphetamine usage. He stated that when he first met the applicant he presented with an account that indicated symptoms of a possible schizophrenic illness, but he, Dr. Bell, did not diagnose any such illness. He said that Dr. Illesinghe of the North Western Area Mental Health Service had previously assessed the applicant in a report as experiencing a brief paranoid psychosis, secondary to the abuse of amphetamines.[1] Dr. Bell had also seen the applicant on 29 July 2002 for the purpose of a report for the Office of Public Prosecutions. On that occasion the applicant told him that he had been consuming amphetamines a couple of times a week over the two months previous to 5 November 2001 and in the four to five days prior to his admission had injected a quantity of amphetamines of a stronger or purer version, to which he attributed his disturbed state of mind at the time of his admission on 5 November. Over that four to five day period the applicant had difficulty sleeping and had experienced his thoughts as being very confused and racing. He described feelings of paranoia, feelings that other people were out to get him in some ill-formed way, a "scam" of people who wanted to hurt him. Those symptoms, the witness said, were entirely consistent with the use of amphetamines. The applicant's acute disturbance was due to the direct intoxicating effects of amphetamines while, and only while, the substance was in his body. In cross-examination, Dr. Bell confirmed that the applicant was suffering "a brief paranoid amphetamine-induced psychosis" and said that the symptoms would have markedly diminished by early afternoon. (Dr. Bell understood that Dr. Shopra[2], consultant psychiatrist, had assessed the applicant at 9 a.m. as being considerably settled, but had urged him to remain for another 24 hours for observation.) He would still have been very tired. He had been through a very brief severe period of psychosis. He would therefore not have regained a normal degree of composure in his speaking. He had the capacity to think through the consequences of his actions if he had chosen to do so, but it would not be surprising that he remained agitated with a degree of impulsivity and a desire urgently to leave the hospital. For he had undergone enforced administration of medication and placement in isolation. Questioned by his Honour, Dr. Bell said that he thought the applicant would nonetheless set out to do what he intended and would take such steps as he considered necessary to get out of the hospital**.** Further cross-examined, Dr. Bell said that the applicant at 2 p.m. might have had a residual, probably quite minor, persisting degree of paranoid ideation. In further answer to his Honour the witness said that he was not saying that the applicant lacked the capacity to form an intention, and he did have an appreciation of what he was doing.

38. The only other psychiatric evidence that was before the jury was that of Dr. Hari Dass Shopra, a consultant psychiatrist. He gave the earlier-stated details of the applicant's admission to the Sunshine Psychiatric Unit from the file on the applicant. The observations which the admitting doctor recorded included that the applicant was restless, agitated, suspicious, making comments about staff and the doctor, asking to go home, making sarcastic remarks and using foul language, somewhat elevated in mood and expressing paranoid thoughts that someone was after him and that his mother was poisoning him and that he admitted that he was using speed. He gave evidence concerning the attributes of amphetamine usage and stated that the applicant's presentation was quite consistent with amphetamine intoxication, which could mimic the picture of schizophrenia but of course lasted only for a period of a few hours or so. Dr. Shopra stated that he first saw the applicant on 5 November 2001 at about 9 a.m. The applicant appeared settled, but admitted having taken speed, denied any sort of paranoid ideation and stated that he felt all right and wanted to go home. Dr. Shopra wanted him to remain at Sunshine in order to rule out any mental illness. Because he appeared settled Dr. Shopra decided to move him to the open area of the high dependency unit. He reviewed him on the following day and found him settled, wanting to go home and apologetic for his actions on 5 November. On 6 November Dr. Shopra was of opinion that the effects of amphetamine intoxication were completely resolved and that the applicant did not show any evidence of any underlying psychiatric illness. He accordingly discharged him from the hospital.

41. After the last Crown witness had given evidence, defence counsel informed his Honour (in the absence, it would seem, of the jury, though the transcript does not make this clear) that his instructions to appear had been withdrawn by the applicant. In the course of the discussion which followed the applicant stated that he was insane at the time in question, that he had not slept for three weeks and that he was under the influence of amphetamines.

44. By the next morning counsel's instructions had been re-instated. The applicant was the sole defence witness. He stated that when he first attended at Keilor Downs Police Station early on 5 November 2001, he had not slept for two or three weeks and was "paranoid, disillusioned and disoriented". In explanation, he said that he thought people were following him in their cars, coming out of every street. He had had a bad episode on speed. That feeling had started building up a couple of days before. He referred to his being taken to the psychiatric unit, to his being given an injection and being admitted and to his later being moved to the high dependency unit. At that time he was "freaking out" and did not want to be there and they were threatening to give him another injection. He was badly agitated. He asked if he could leave and that was refused. He did not want the medication they proposed. He "just freaked out" and "just lashed out at the psych nurse" and "ran through the offices. I don't know what happened." He could not control himself. He did not remember the details, but he thought he used his fist. He was insane and under the influence of the drugs and medication of the previous night.

47. In cross-examination he said that he went to the police station because he thought people were following him, he was insane. He there spoke for possibly half an hour by telephone to a member of the Crisis Assessment Team. He admitted that a document he had been given stated that he had been assessed as being a danger to himself. He said that he had started taking the amphetamine about three weeks before he went to the police station, possibly every second day. He answered many questions in cross-examination by saying that he was under the influence of amphetamines, was insane and was an involuntary patient.

50. In his sentencing remarks his Honour found that the offences were committed by the applicant when suffering the after effects of a period under the influence of the amphetamines, recovering from drug-induced psychosis and having had a sedative administered. His Honour had ordered and received a pre-sentence psychiatric report from Dr. Grant Lester, a consultant forensic psychiatrist with the Victorian Institute of Forensic Mental Health. It was dated 7 April 2003. Dr. Lester had interviewed the applicant on 31 March 2003. His mental state examination revealed that there was no evidence of formal thought disorder or of delusions or hallucinations and there was no suicidal ideation. He concluded that the applicant had given a history which was consistent with "a brief period of what could be described as amphetamine psychosis". It seemed to present itself as agitation and restlessness with severe insomnia and increasing suspiciousness, guardedness, fearfulness and a growing belief that his life was under threat.

53. I turn now to the evidence propounded on behalf of the applicant as fresh evidence. Mr. Marshall's affidavit shows that about early June 2004 - in fact it was 1 June 2004, as appears below - the applicant was transferred from prison to psychiatric care at Thomas Embling Hospital as a result of having been certified by Dr. Debra Wood, a psychiatrist. The applicant's then treating doctor informed the deponent that the applicant, at times, developed doubts as to identity and intentions and believed that people meant to hurt him. On 1 September 2004 Dr. Lester informed the deponent that he was now the applicant's treating doctor and had diagnosed him as suffering from schizophrenia.

56. Dr. Lester furnished a psychiatric report dated 22 September 2004 to the applicant's solicitors. He reported that, while the applicant was at the Melbourne Assessment Prison, he was found by Dr. Wood to be suffering from a mental illness. In her opinion[3], he was suffering from a long-standing complicated delusional system that included his personality, emotions and thoughts being taken away from him from the age of seven, that the world was made through him and that various members of his family were key world figures such as the head of South Africa and the head of the world. The applicant also believed that there was a conspiracy of professionals and of a giant computer, which was the moon. He misinterpreted individual cellmates, prison officers and others in the prison as being people from his past. Dr. Wood certified him under s.16(2)(a) of the Mental Health Act as mentally ill on 28 May 2004. He was, by a hospital transfer order under s.16(3)(b), transferred to and admitted as an involuntary patient to Thomas Embling Hospital on 1 June 2004 with a provisional diagnosis of paranoid schizophrenia.

59. Dr. Lester stated that in his opinion as the applicant's consultant psychiatrist the applicant did "indeed suffer from acute paranoid schizophrenia"[4], which was currently in partial remission and was being treated with anti-psychotic medication. He reported that the applicant walked around his unit with a tea towel tied around his head; that he was unable to explain why he did that; that he had a fatuous, sometimes inappropriate incongruous affect, made poor eye contact and often seemed perplexed and confused. There was a vague empty content to his thinking and he continued to harbour vague concerns that there was some form of conspiracy involving others to which he was only partially privy. There was no evidence of hallucinations. There were no depressive themes and no self-harm or suicidal ideations. His personal self care was good and he was generally well organised in respect of day to day activities. There was no family history of psychiatric illness. In his mid-teens, he had begun to abuse a number of substances, in particular amphetamines, which are a particularly potent precipitator of psychotic illness.

62. Dr. Lester referred to the events of November 2001, adding from the history given by the applicant the information that he used to jump into his car and drive for increasing periods of time to try and escape the people he believed were following him. Dr. Lester then stated:

"In retrospect, it is now evident that that [seemingly either the applicant's conduct on 5 November 2001 or his conduct leading up to and on that date] was probably the earliest manifestation of his current acute paranoid schizophrenia, though at the time it was believed to be a drug-induced psychosis which would settle given abstinence from substances."[5]

Dr. Lester stated that it was the applicant's intention, with his mother's agreement, on release from prison to live with his mother and step-father. The applicant was in agreement that on his release he would accept placement on a Community Treatment Order under s.14 of the Mental Health Act. That would ensure maintenance of his medication and psychiatric support while in the community. Dr. Lester estimated that it would take the applicant at least another three to six months of continuing treatment to achieve a more significant remission of his illness, which should be achievable in the community given his compliance with medication. Abstinence from continuing illicit substance abuse, especially of amphetamines, would be essential.

67. Mr. Marshall sought an opinion from Dr. Simon Kennedy, a clinical and forensic psychologist, on the issue of mental impairment on the part of the applicant at the time of the offences, supplying him with Dr. Lester's reports of 7 April 2003 and 22 September 2004, Dr. Illesinghe's report dated 14 December 2001 and a report by Dr. Bell dated 30 July 2002 (which does not appear to have been tendered at the trial). Dr. Kennedy interviewed and tested the applicant. He expressed the opinions that the applicant's description of his mental state in November 2001 was suggestive of paranoid delusions; that the incident in question presented itself as the initial period of time of paranoia exhibited by the applicant; that he presented with paranoid schizophrenia; and that it was present at the time of the incident in question and the applicant was clearly mentally impaired at the time of offending. Dr. Kennedy was asked for a supplementary report clarifying whether, in the light of the definition of "mental impairment" in s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the 1997 Act"), he was still of the opinion that the applicant's condition gave rise to a defence of mental impairment. Dr. Kennedy in a report dated 3 February 2005 concluded that he would "suggest" that the evidence gave weight to the likelihood that the applicant was mentally impaired at the time of the incident in question and this would undoubtedly have affected his ability to appreciate properly the consequences of his actions.

70. By arrangement between the Office of Public Prosecutions and Mr. Marshall a further report, dated 5 January 2005, was obtained from Dr. Bell on the question of whether the applicant may in retrospect have legitimately had available to him a mental state defence at his trial, particularly having regard to the opinion expressed by Dr. Lester in his report of 22 September 2004. Dr. Bell interviewed the applicant and with his consent discussed his current psychiatric condition with his treating psychiatrist, Dr. Lester, and reviewed the applicant's clinical file. In his report Dr. Bell referred to his earlier report of 30 July 2002 and his evidence at the applicant's trial. He drew attention to the view that he said he had expressed in that evidence[6] that

"although it is possible at the time of his attempt to leave hospital [the applicant] was still experiencing some degree of paranoid ideation there is insufficient evidence to conclude that he was so severely disordered that he was deprived of the knowledge of the nature and quality of his actions or the capacity to reason regarding their wrongfulness with a moderate degree of sense and composure. For this reason I do not believe that [the applicant] can reasonably avail himself of a defence of not guilty on the grounds of mental impairment."

Dr. Bell stated that he continued to hold that opinion.

75. He noted that the clinical file made reference to observations by medical and psychiatric nursing staff of the applicant's mental state over the last few weeks that suggested that he continue to entertain a range of bizarre delusions, for example, that his brain had been stolen by an Asian god. Staff noted that he frequently laughed fatuously to himself in a manner suggestive of response to auditory hallucinations, although he denied such symptoms when questioned. Dr. Bell said that in interview the applicant was able to comprehend at an acceptable level explanations regarding his appeal and there was no reason from a psychiatric point of view why the appeal should not proceed.

78. He stated that, as indicated in Dr. Lester's report, "it has now become clear that [the applicant] does indeed have an established schizophrenic illness".[7] The conclusion now drawn by Dr. Lester regarding the episode of psychosis at the time of the applicant's admission to Sunshine Hospital as being very early manifestation of his schizophrenic illness "appears in my view well founded"[8]. He remained actively symptomatic. Nevertheless, Dr. Bell stated, "it remains my view that there is no sufficient basis to conclude that at the time of the assault ... [the applicant] was in such a severely compromised state of mind by virtue of his illness as to not know the nature and quality of his conduct or [not] to know that what he was doing was wrong". All of the available evidence (particularly Dr. Shopra's review at 9 a.m. on 5 November 2001 and observations by nursing staff) supported the conclusion that by the time the applicant was attempting to abscond from Sunshine Hospital his paranoid psychotic symptoms had markedly diminished. The applicant had himself told Dr. Bell in interview that day that at the time he was attempting to leave hospital his paranoia had essentially settled. It was appropriate in hindsight "to suggest that the applicant at the time of the offence was indeed in the early stages of what is now an established schizophrenic illness and that therefore he suffered from a condition that might potentially fall within the scope of mental impairment"[9]. Nevertheless, "his symptoms at the time of the offence were not of a sufficient order of severity to meet the threshold for the specific criteria" in s.20(1)(a) or (b) of the 1997 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."

By s.21(1) a person is presumed not to have been suffering from a mental impairment having the effect referred to in s.20(1) until the contrary is proved. Whether a person was suffering from a mental impairment having that effect is, by s.21(2), a question of fact to be determined by a jury on the balance of probabilities. The party raising the defence bears the onus of rebutting the presumption. By s.23, if the defendant is found not guilty because of mental impairment the court must declare that the defendant is liable to supervision under Part 5 of the Act or order the defendant to be released unconditionally (though that is qualified by s.40(2)).

86. The researches of Eames, J.A., whose reasons for judgment I have had the benefit of reading in draft, have marshalled cases bearing on whether the second reports of Dr. Lester and Dr. Bell, dated respectively 22 September 2004 and 5 January 2005, and the two reports of Dr. Kennedy, dated 7 October 2004 and 3 February 2005, qualify as "fresh" evidence for consideration for admission on appeal. All those reports were prepared after the trial and by reference, for diagnostic purposes, to (amongst other things) the conduct and presentation of the applicant some time after the trial. It is significant that the reports in question are not mere changed opinions of experts who gave evidence at trial (only Dr. Bell having done that) nor (with the qualified exception of those of Dr. Kennedy) mere opinions of further experts who could have been consulted before trial. Rather, they all turned on events or conduct after trial, leading one expert (Dr. Lester) to change an opinion which he had expressed, albeit after trial though before sentence, and another expert (Dr. Bell) to modify the opinion which he had expressed at trial. Dr. Kennedy had not expressed an earlier opinion.

89. Whilst the brief passages in R. v. Frazer[10] and R. v. Roberts and Urbanec[11] support the view that the reports in question satisfy the first of the cumulative requirements for admissibility as fresh evidence summarised by Kenny, J.A. in R. v. Nguyen and Tran[12], the passages are strictly obiter because the evidence in each case was held not to satisfy one of the other requirements for admissibility. However, the decision of this Court in R. v. AHK[13] is, in relation to the complainant's statement there, directly in point, albeit that the documents here are of a different kind and albeit that there were special considerations applicable to the complainant's statement in that case. Particularly in point are the statements of Winneke, P.[14] that the fundamental question is whether a miscarriage of justice has occurred and that an appellate court will always receive fresh evidence if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand, in which case the appeal must be allowed. To that passage may be added the opinions expressed by the English Court of Appeal in the civil case of Meek v. Fleming[15] to the effect that, even if the criteria for the admission on appeal of fresh evidence are not satisfied, the evidence may nevertheless be admitted if that is necessary in order to prevent a miscarriage of justice. As the cases collected in Director of Public Prosecutions v. Burgess[16] show, that approach has been adopted in many criminal cases. It is clear that the evidence in the reports was not available, and could not with reasonable diligence have become available, at the trial. The real question in relation to this first requirement listed by Kenny, J.A. is whether the evidence is disqualified as fresh evidence by the fact that the evidence propounded simply could not have been available at trial because it depended upon or involved events or opinions occurring or formed after trial. In my opinion, AHK shows that that fact does not disqualify the evidence here propounded. I am confirmed in the view that, subject to the qualification I mention later, the reports qualify as fresh evidence (that is, meet the first requirement) by the fact that the respondent's opposition to the reception of the evidence was somewhat lukewarm, the written submission being that the reports "may not be" fresh evidence.

92. The reports of Dr. Lester and Dr. Bell satisfy the requirements that the evidence propounded the relevant and otherwise admissible and the apparently credible (or at least capable of belief). I do not, however, consider that the reports of Dr. Kennedy are otherwise admissible. In my opinion, the field of expertise responsive to the matters raised by s.20 of the 1997 Act is psychiatry, the discipline concerned with mental health, and does not include psychology. The experience of counsel for the respondent that it has always been psychiatrists who give evidence in cases of insanity or mental impairment tends to support this opinion.

95. In my respectful opinion the probable effect of cross-examination of Dr. Bell is too speculative to be taken into account. Nevertheless, essentially for the other reasons given by Eames, J.A. I consider that, although the onus would be on the applicant on the balance of probabilities,[17] there is a significant possibility (and likelihood) that the later reports of Dr. Lester and Dr. Bell, if believed (except as hereafter mentioned), would have led the jury, acting reasonably, to acquit the applicant because of mental impairment if those reports had been before it at trial. To the reasons given by Eames, J.A. I would add that I do not think that the jury, who would have had a description of the applicant's behaviour before and after his admission to Thomas Embling Hospital, would have been bound to accept Dr. Bell's view that the applicant's symptoms at the time of offending were not sufficiently severe to meet the criteria in s.20(1)(a) or (b). Compare Dahl v. Grice[18]. I am of the opinion stated in this paragraph albeit that Dr. Lester does not directly deal with the defence of mental impairment and Dr. Bell does not retract the evidence he gave at trial.

98. It is true that counsel for the applicant at trial accepted that the defence of mental impairment was not open.[19] But that was on the evidence then available and led. It does not prevent the applicant from arguing on appeal on the basis of fresh

evidence that there is a significant possibility or likelihood that the defence would have been made out if the later reports had been before the jury.

102. I would therefore admit the affidavit and the second reports of Dr. Lester and Dr. Bell. The essence of grounds 2 and 3 is that the absence at the trial of the fresh evidence amounted to a miscarriage of justice: R. v. Ion[20] I would uphold grounds 2(b) and 3(b). They are logically anterior to grounds 2(a) and 3(a). If I am wrong about grounds 2(b) and 3(b), I would, for similar reasons, uphold grounds 2(a) and 3(a)[21], in respect of which the respondent carries the onus of proof.

105. I agree in the order proposed by Eames, J.A. for the reasons he gives.

108. During the hearing quite some attention was paid by the court to the interaction, or successive operation, of the Sentencing Act 1991 and the Corrections Act 1986 on the one hand and the Mental Health Act on the other. On reflection and in light of the order proposed, I do not think it necessary to say anything on the subject in these reasons.

113. I have had the benefit of reading in draft the judgment of Batt, J.A. and I gratefully adopt his Honour's statement of the facts and background to this application for leave to appeal against conviction and sentence. As will emerge, I am in general agreement both with his Honour's reasons and also his conclusions as to the disposition of those applications. In reaching the same conclusion there are, however, some differences between us, albeit, more of emphasis than of substance.

116. In the present case no doubt had been cast on the propriety of the verdict entered by the jury on the evidence then before it. The conviction was regular and the ground of appeal which complained that the verdict was unsafe and unsatisfactory was abandoned on appeal. The appeal is advanced under the third ground of s.568(1) of the Crimes Act 1958, namely, that the verdict, although the trial was fair, constituted a miscarriage of justice.

119. In R. v. AHK[22] the President (with whose reasons Brooking, J.A. agreed; O'Bryan, A.J.A. agreeing, with separate reasons) noted that there had been some difference in judicial opinion as to the appropriate test to be adopted when assessing suggested fresh evidence, but in common with the Court in R. v. Nguyen and Tran[23], adopted the test as stated by Mason and Deane, JJ. in Gallagher v. The Queen[24], namely, that the Court will intervene where there is "a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial." Consistent with that authority, the President held[25] that in approaching that decision the appellate court should be guided by three general considerations. First, whether the evidence truly constituted fresh evidence; secondly, whether the evidence was apparently credible or plausible or was at least capable of belief; thirdly, whether the evidence had sufficient relevance and cogency to justify appellate intervention.

122. The President placed emphasis on the overriding duty of the court, in observing that:

"[W]here there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the fresh evidence was not adduced at the trial. The fundamental question for the Court in each such case is whether it perceives that a miscarriage of justice has occurred."[26]

126. Again, and after discussing the different statements of courts as to the test to be adopted, the President returned to this bedrock proposition:

"However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive `fresh evidence' if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand."[27]

130. It cannot be that in any case in which a witness, after trial, seeks to modify or recant his or her evidence the conviction must be set aside, even when the witness declares that the evidence had been false. As the High Court held in Davies and Cody v. R.[28]:

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases."

134. As the President noted in R. v. AHK[29], witnesses may have second thoughts about their evidence at trial for a variety of reasons. Some witnesses may become emotionally disturbed, others may brood on the effect of their evidence and others may be subjected to pressures to declare their evidence at trial to have been false. Nonetheless, as Widgery, J. observed in R. v. Flower.[30]:

"Whilst there is no general requirement for a new trial merely because a witness's account in the court on appeal differs from that given at trial each case must depend on its own facts and much depends in every case upon the reason given by the witness for having changed his or her testimony."

138. Winneke, P. noted in AHK that the usual instance where fresh evidence is sought to be raised is evidence from a witness who was not available at trial and whose evidence is apparently relevant, plausible and cogent. The present case is closer to that situation than to AHK, where the fresh evidence was that of a witness recanting significant parts of the evidence given at trial as to which evidence special caution must be applied[31]. Although the present case does not sit precisely within either of those categories of fresh evidence a broadly similar approach would be taken when the fresh evidence, as here, amounts to a revision of the opinions of expert witnesses who gave evidence at trial.

141. The approach to adopt when applying the relevant test may be illustrated by considering a series of cases, the first of which is R. v. AHK.

144. In R. v. AHK the applicant had been acquitted on two counts of rape (counts 4 and 7) but was convicted on one count of aiding and abetting rape committed by another man on the same complainant (count 5). There were two pieces of evidence constituting, it was said, fresh evidence. The first was a letter written by the complainant to the prisoner in which she expressed affection for him and regret at his imprisonment and her role in that outcome, but which did not, in terms, constitute a recantation by her of her evidence at trial. The second item was a later statement made by the complainant to a solicitor in which the witness did expressly retract her evidence at the trial with respect to counts 4 and 7 but did not constitute a retraction of the rape on count 5 and the applicant's part in that rape.

147. Winneke, P. held that both items ought be taken together and when so read both constituted fresh evidence. Although the documents did not constitute a retraction of the allegations against the applicant which constituted count 5 against him the President held that there remained a distinct possibility that if the jury had known that that the complainant had fabricated her evidence on counts 4 and 7, they may have entertained a reasonable doubt on count 5 also. Applying the tests stated above, he held that the verdict should be set aside and a new trial be ordered on count 5.

150. O'Bryan, A.J.A. held in R. v. AHK[32]:

"All the leading authorities formulate the appropriate considerations upon the basis of what the trial jury might have done had the fresh evidence been before it at the trial and not upon the basis of what another jury might do were a new trial to be ordered. There is an obvious difficulty here because the letter was written nine months after the trial when post-trial feelings are expressed by the complainant towards the applicant. It is impossible to suppose what the trial jury might have done had it been told that within a year the complainant would write to the applicant in prison expressing affection for him and remorse that she had hurt him."

"The fresh evidence cases deal with evidence which was unavailable at the trial, but which can be evaluated upon the basis it was capable of being considered by the trial jury."

156. O'Bryan, A.J.A., concluded that the letter by itself did not constitute fresh evidence and he would not have admitted it on appeal; it added nothing to the evidence given at trial and in addition it lacked cogency and relevance. His Honour concluded, however, that the statement did constitute fresh evidence and that had the jury at trial been aware that the complainant would retract her evidence and deny that she had been raped the jury, acting reasonably, might have entertained a reasonable doubt about the guilt of the applicant. Accordingly, he agreed that the conviction should be quashed.

159. Two cases involving the evidence of expert witnesses provide assistance.

162. In R. v. Frazer[34] the applicant had been convicted on two counts of culpable driving. The evidence disclosed that immediately before impact she had performed controlled manoeuvres of her vehicle in attempting to avoid the collision. Her defence had been that she had crashed her motor vehicle as a result of suffering an epileptic seizure. Prior to the accident she had been diagnosed by a neurologist as suffering from juvenile myoclonic epilepsy. He gave evidence at trial that the driving of the applicant could not have been performed by her if at the time she was suffering an epileptic fit, because, he said, she would not have had the ability to make manoeuvres around other vehicles which she had performed. He considered, but rejected, the possibility that she in fact suffered what were known as psychogenic seizures which would not cause an impairment of consciousness to the same extent as epilepsy. Whilst not ruling the possibility out entirely, another expert witness in the trial also concluded that the applicant had not suffered a partial seizure; her driving performance was inconsistent with her having suffered a partial seizure, he said.

165. Subsequent to the trial, and for the first time, a diagnosis was given by a doctor that the applicant suffered from psychogenic epilepsy rather than true epilepsy. That doctor opined that a person suffering from psychogenic seizure could have conducted the manoeuvres with the car that the applicant performed prior to the collision. He opined however that it would be very unusual for a person to have a psychogenic seizure whilst driving at high speed because such seizures usually occurred in non-dangerous situations.

168. Chernov, J.A., with whom Phillips and Vincent, JJ.A. agreed, accepted that the evidence was fresh evidence but did not allow the appeal, because the applicant failed to establish that there had been a miscarriage of justice by virtue of the fact that the evidence had not been before the jury. He concluded[35], applying the statements of the test in Gallagher v. The Queen[36] and Nguyen & Tran[37], that there was not a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been placed before it.

171. The present appeal bears some similarity to but may be distinguished from R. v. Cheatham[38], where fresh evidence was argued with respect to a trial where the defence was insanity. On the trial two defence and one prosecution psychiatrist witnesses gave evidence. The critical issue was whether the accused suffered a disease of the mind at the relevant time. The two defence witnesses said that he did so suffer, but identified different mental illnesses. The prosecution witness denied that he suffered a disease of the mind. The fresh evidence was from two additional psychiatrists, who again said he was suffering a disease of the mind. Spigelman, C.J., with whom James and Sperling, JJ. agreed, held that the evidence was not "new" but merely added two additional opinions to the existing opinions, and observed that "there is substantial overlap, if not precise co-incidence, of the thrust of the two sets of appellant's expert opinions"[39]. Thus, there was held to be no significant possibility that the jury might have acquitted had it heard that evidence.

174. The present case may also be distinguished from R. v. Ion[40], where fresh evidence was sought to be relied on from a psychiatrist on the question of diminished responsibility. The applicant at trial, before a judge alone, had relied on the evidence of another psychiatrist, whose opinion had been rejected by the judge because he rejected the credit of the applicant and, in turn, rejected the history provided by the applicant upon which the opinion had been based. After the trial the new psychiatrist had interviewed the applicant and based his conclusion in part on the information then obtained. The Court refused to set aside the conviction. Hunt, C.J. at C.L. held[41] that the applicant, having been content to rely on evidence at trial, was merely seeking to add fresh evidence when the first failed to achieve the desired result. That approach could not justify a new trial, nor would it do so even if the new evidence may have produced a different result, had it been led at trial, his Honour held. The applicant had every opportunity to have produced the evidence at trial from this new witness or another psychiatrist. The proposed evidence could not be described as "fresh", and was "new" evidence only because no-one thought to obtain it until the defence failed at trial. His Honour concluded that even if the evidence had become available only after trial it lacked credibility and cogency, those being essential elements if fresh evidence was to produce a re-trial[42].

177. In R. v. Roberts and Urbanec[43] one part of the suggested fresh evidence was the subsequent entry of pleas of guilty and their convictions on drug offences of police officers who had been witnesses in the trial of the accused. Batt J.A. observed that there might be doubt whether that constituted "new" evidence as opposed to "fresh" evidence, but nonetheless accepted that it met the first of the four point criteria which had to be met if a fresh evidence ground was to be made out, namely, that it was evidence which was not available at trial and could not have been made available with reasonable diligence. His Honour concluded, however, that the evidence could not have produced any different result at the trial had it then been available to the defence.

180. As those cases disclose, the fresh evidence must first meet that description but will not of itself produce a new trial unless in the circumstances of the case it would amount to a miscarriage of justice to permit the verdict to stand in light of that evidence. In determining whether evidence constitutes fresh evidence and is of such character as to justify the quashing of the conviction the appellate court is not concerned to evaluate what would be the effect of the evidence if a new trial was ordered. Rather, the Court is concerned with the question of what effect the new evidence would have had on the jury at the trial under appeal had that evidence been placed before it. As Batt, J.A. observed in Roberts and Urbanec[44] the appeal court in considering fresh evidence "is required to make its assessment of a hypothetical past jury verdict".

183. With the principles discussed in the above cases firmly in mind, I turn then to the suggested fresh evidence in this case.

186. The opinion expressed by Dr Grant Lester was that the applicant since the trial had been diagnosed as suffering acute paranoid schizophrenia and that "in retrospect, it is now evident that his conduct on 5 November 2001 was probably the earliest manifestation of his current acute paranoid schizophrenia, though at the time it was believed to be a drug-induced psychosis which would settle given abstinence from substances." That clearly constitutes fresh evidence, his opinion having been formed only after trial, and on the basis of events that followed trial. Although based on subsequent events, the significance of his evidence was that it constituted a correction of the opinion held by him at the time of trial. Had he given evidence at trial as to his present opinion of the mental state of the applicant at the time of these offences then his evidence would have been admissible, relevant and cogent, and would have carried weight with the jury.

189. The opinion of psychologist, Dr Simon Kennedy, was also given post-trial, and was based on the applicant's hospitalisation and mental collapse while in prison after the trial. He concluded that the paranoid schizophrenia which the applicant presently suffers was present at the time of the events giving rise to his conviction and that he was clearly mentally impaired at that time.

192. For evidence to constitute fresh evidence it must have been relevant and admissible at the trial. Whether the Court should receive in evidence the opinion of Dr Kennedy, as a clinical and forensic psychologist, was not the subject of detailed argument before us. Counsel for the respondent contended that it was not usual for a psychologist to give such an opinion. As I have discussed, we are concerned with the question of what impact the fresh evidence would have had on the jury if it had been admitted in the last trial, not on what effect it might have if the judge allowed it to be admitted in a new trial. The outcome of this application does not depend on Dr Kennedy's evidence having been admissible if it had been called at the applicant's trial. Given the conclusion I have reached as to the effect of the evidence of Dr Lester by itself, and also the qualifications to his own evidence that Dr Bell, a psychiatrist who gave significant evidence at trial, has introduced in light of the changed opinion of Dr Lester, I am satisfied that this application must succeed, in any event.

195. Batt, J.A. expresses the opinion that Dr Kennedy's qualifications do not permit him to diagnose mental illness, that being the exclusive province of psychiatry. I do not need to express a concluded view as to that question, which if there is a re-trial may fall for argument before the new trial judge. As presently advised, however, I do not consider the issue to be beyond argument[45]. Since it is unnecessary to resolve this question, and having regard to the fact that we heard no argument on the issue, it is appropriate that I endorse the course proposed by Batt, J.A. that we not formally receive the report of Dr Kennedy as fresh evidence on the appeal.

198. Dr Bell said at trial that the applicant was suffering a drug-induced psychosis and not any underlying psychiatric illness. In my opinion, whilst maintaining that final view, he has significantly changed his position, as disclosed in his report dated 5 January 2005. Dr Bell said that he continues to hold the opinion that at the time of the offence the applicant could not avail himself of a defence on grounds of mental impairment. He said that was so because there was insufficient evidence to conclude that he was so disordered that he was deprived of the knowledge of the nature and quality of his actions or of his capacity to reason regarding their wrongfulness with a moderate degree of sense and composure. Nonetheless, he opined that "it has now become clear that Mr Kucma does indeed have an established schizophrenic illness, the symptoms of which are still not under satisfactory control". He said that as to the opinion of Dr Lester concerning the time of his admission to Sunshine Hospital prior to the offence that "the conclusion now drawn by Dr Lester regarding the episode of psychosis at the time of Mr Kucma's admission to Sunshine Hospital has been very early manifestation of his schizophrenic illness appears in my view well founded".

"It is appropriate in hindsight to suggest that Mr Kucma at the time of the offence was indeed in the early stages of what is now an established schizophrenic illness and that therefore he suffered from a condition that might potentially fall within the scope of mental impairment as it is currently understood with its relatively narrow compass in line with its predecessor at common law the defence of insanity. Nevertheless, his symptoms at the time of the offence were not of a sufficient order of severity to meet the threshold for the specific criteria of not knowing the nature and quality of his actions or that what he was doing was wrong."

205. In forming his opinion as to the applicant's condition at the time of the offences Dr Bell told the jury that he had regard also to the report of Dr D.S. Illesinghe, Director of Clinical Services at the Mid-West Area Mental Health Service. That report was not tendered at the trial, but Dr Bell read a small portion of it to the jury in which Dr Illesinghe said that he had diagnosed the applicant upon admission on 5 November 2001 as suffering from an amphetamine psychosis that resolved during his admission.

208. In his report, which was dated 14 December 2001, Dr Illesinghe had also reported concerning a previous occasion when the applicant had been serving a two-year gaol sentence, that sentence having ended three months prior to the offences in the current case. He reported:

"Whilst being in prison he had received a psychiatric assessment when he was diagnosed as suffering from schizophrenia and treated with antipsychotics. He was released from prison without medication on parole. He was seeing a community corrections officer regularly and had received random urine drug screens on two occasions that were negative. He had missed a scheduled appointment with a forensic psychiatrist."

212. It is understandable that Dr Bell did not refer to that apparent diagnosis made on the earlier occasion because to do so would disclose that the applicant had previously been in prison. A question posed by defence counsel suggests that he was aware of the contents of the report but again, given the defence that was being run, it is not surprising that no reference was made to the earlier diagnosis of schizophrenia.

215. The report of Dr Illisinghe could not constitute fresh evidence; it was available at the time of trial. Nor, for the reasons earlier given, are we concerned with what might transpire on a re-trial, as opposed to assessing what the jury in the last trial might have made of the fresh evidence had it been produced at that trial. Nonetheless, it seems to me that we are entitled to take into account not only the likely impact of the fresh evidence in itself, but also its likely effect generally on the conduct of that trial had it been introduced into evidence. In AHK Winneke, P. held[46] that when considering the second and third of the considerations relevant to a fresh evidence appeal the fresh evidence was to be "considered in combination with the evidence already given at trial".

218. Had Dr Lester given then the evidence he now would give it is highly likely that a defence of mental impairment would have been run before the jury. In those circumstances it is probable that since Dr Bell was permitted at trial to refer to Dr Illisinghe's report without objection he would have been cross-examined about the earlier diagnosis of schizophrenia referred to in that report, and that history would also have been referred to Dr Lester, too, had he given the evidence at that trial that he now could give.

221. Similarly, other evidence which had been called at trial might have been viewed differently by the jury, once it is postulated that Dr Lester's evidence was placed before them, and Dr Bell's evidence had the qualifications he now makes.

224. In his evidence in chief the prosecutor asked psychiatrist Dr Shopra whether as "a global assessment" the notes taken upon the applicant's admission (which involved another doctor) indicated that the applicant was "sane, insane, suffering from some particular problem or suffering from no problem". Dr Shopra said that his condition was consistent with amphetamine intoxication but added that the picture thus presented "can just mimic the picture of Schizophrenia type but of course it lasts only for a short period, for a few hours or so". Dr Shopra was asked whether at the time he saw the applicant at 9am on the morning after his admission, and some hours before the offences occurred, he had concerns that the applicant had any underlying psychiatric condition other than one related to drug induced psychosis. He said that he had to really consider the possibility that there was an underlying psychiatric illness, and for that reason required that he stay in hospital for observations. The applicant refused to take any medication and was left to be observed. When he saw the applicant the day following the offences the applicant was settled and accepted responsibility for his actions the previous day, Dr Shopra said. He said that he concluded that the effects of amphetamine intoxication had worn off and that there was no underlying psychiatric condition.

227. No additional evidence was provided on the appeal from Dr Shopra. We do not know whether his own opinion has altered in light of later events and the later diagnoses of the applicant. It might reasonably be anticipated, however, that had the other evidence been available at trial his own opinion would have been subject to cross-examination and he may well have modified his opinion, although that can not be assumed.

230. In AHK Winneke, P. observed that he was left "in a state of considerable unease about the applicant's conviction" in the light of the fresh evidence. He concluded that there was

"a distinct possibility that if the jury had known that (the complainant) was fabricating her evidence that she was a non-consenting party to the acts of intercourse charged in counts 4 and 7 they may well have entertained a reasonable doubt about her evidence that she was not a consenting party to the rape alleged on count 5."[47]

234. In this case the issue of mental impairment was very much raised in the trial, but by the applicant himself. The applicant repeatedly answered questions by saying " I was insane", and after he had completed his evidence the judge discussed with counsel what course he ought adopt and they both submitted that there was insufficient evidence to justify a verdict of not guilty on grounds of mental impairment.

237. In my opinion, even if the report of Dr Illisinghe, and its possible use in cross-examination of witnesses, are not taken into account the balance of the fresh material is of sufficient weight and cogency, in itself, let alone when its impact on other evidence is taken into account, that it is inevitable that the judge would have directed the jury as to the defence of mental impairment. There is a distinct possibility that the jury would have acquitted the applicant on both counts on grounds of mental impairment.

240. In concluding as I do that the defence of mental impairment would have had a real prospect of success I keep in mind that on appeal counsel directed most of his argument to the contention that the fresh evidence raised the possibility of an acquittal, outright, on the basis that the Crown had failed to prove the element of intention required for either count. It was only as an alternative ground of appeal that it was contended that the fresh evidence would have availed the applicant of a defence of mental impairment. It is unnecessary to determine this application by reference to a possible defence of lack of criminal intention, which defence was run unsuccessfully at trial. I express no view on the prospects of the applicant being acquitted outright by reason of such a defence if the fresh evidence had been admitted at trial.

243. The outcome of this application will be that the convictions are quashed. In my view there ought be a re-trial, subject to the decision of the Director of Public Prosecutions whether in all the circumstances it is appropriate to pursue a further trial. Having regard to the time served in prison by the applicant it may be that a re-trial will not eventuate. Nonetheless, if a re-trial is held it will be for the trial judge to determine on the state of the evidence then called whether the applicant is fit to stand trial and, if so, whether a defence of mental impairment ought be placed before the jury.

246. I conclude, therefore, that the post-trial reports of Dr Lester and Dr Bell ought be admitted as fresh evidence on the appeal. I further conclude that the application for leave to appeal against conviction ought be allowed, the appeal be taken to be instituted and heard instanter and be allowed. The convictions ought be quashed and the sentences passed thereon be set aside. A new trial on those counts should be ordered.

[1] That report was not tendered at trial.

[2] This is the spelling in the transcript. Some documents give "Chopra".

[3] No affidavit or report was obtained from her and it was not suggested that the fresh evidence included evidence from her.

[6] This in fact is not part of Dr. Bell's oral evidence but rather is a direct quotation from the fourth page of Dr. Bell's report of 30 July 2002. Since that report does not appear to have been tendered at the applicant's trial I do not otherwise state its contents. It is convenient to mention here that it is clear from T12 and T14 that a report by Dr. Barry-Walsh dated 4 August 2002, obtained by the applicant's former solicitors, was not tendered.

[10] [2001] VSCA 101 [31].

[11] [2004] VSCA 1 [117]; slr 11 February 2005.

[12] [1998] 4 V.R. 494 at 400-401.

[13] [2001] VSCA 220.

[15] [1961] 2 Q.B. 366 at 378-9, 381 and 383.

[16] [2001] VSCA 135; (2001) 3 V.R. 363 [37]. See also re MJR [2000] VSCA 44; (2000) 1 V.R. 119 [20] - [21].

[17] Section 21(2) and (3) of the 1997 Act.

[18] [1981] VicRp 50; [1981] V.R. 513.

[20] (1996) 89 A Crim.R. 81 at 93.

[21] As to the mental element of "recklessly" see R. v. Campbell [1997] 2 V.R. 585.

[22] [2001] VSCA 220.

[23] [1998] 4 V.R. 394 at 400-401.

[24] [1986] HCA 26; (1986) 160 C.L.R. 392, at 402.

[26] AHK, at [8] citing Gallagher v. The Queen at 395 per Gibbs, C.J.

[27] At [8], citing R. v. McIntee (1985) 38 S.A.S.R. 432 at 435 per King, C.J.

[28] [1937] HCA 27; (1937) 57 C.L.R. 170 at 183.

[29] [2001] VSCA 220 at [9].

[30] R. v. Flower [1966] 1 Q.B. 146 at 150.

[31] R. v. AHK at [9] per Winneke, P.

[32] [2001] VSCA 220 at [75].

[34] [2001] VSCA 101.

[36] [1986] HCA 26; (1986) 160 C.L.R. 392 at 395, 402, 410.

[38] [2000] NSWCCA 282.

[40] (1996) 89 A. Crim. R. 81

[41] Ion, at 92-95, per Hunt, C.J. at C.L., Studdert and Sully, JJ., agreeing.

[42] Citing, Gallagher, at 395-6, 399, 400-401, 408-9; Mickelberg v. R. [1989] HCA 35; (1989) 167 C.L.R. 259, at 301.

[43] [2004] VSCA 1, at [117].

[45] Judicial opinion that psychologists are not qualified to give such evidence is readily found: see R. v. MacKenney (1983) 76 Cr.App.R. 271; R. v. Forde (1986) 19 A.Crim.R. 1; R. v. Peisley (1990) 54 A.Crim.R. 42. But, compare with R. v. Whitbread (1995) 78 A.Crim.R. 452; Nepi v. Northern Territory of Australia, unreported, Martin, C.J. NT Supreme Court, 2 May 1997, and see the discussion by Dr Ian Freckelton in his article "Psychologists' entitlement to diagnose", Psychiatry, Psychology and Law 5 (1998) 159.