R v Maxwell

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR : The accused was indicted before me on a count of murder to which he pleaded not guilty but guilty of manslaughter. The Crown Prosecutor declined to accept that plea in discharge of the indictment and the trial proceeded. Some background facts should be recorded and some comments made. 2 On 24 August 1992 Marilyn Maxwell, the estranged wife of the accused, died as a result of blood loss following a bullet wound. The projectile was discharged from a .22 sawn off rifle being brandished by the accused. That much is not in dispute. The curial history until March 1996 is traced in the various judgments of the High Court published in 184 CLR p501 and following. I have read those judgments but for the purposes of present trial I ignore the factual content, in particular the reported views of Dr Shand and the concession concerning the intention of the accused. As to the latter see per Gaudron and Gummow JJ @ 527. 3 Upon the matter being remitted from the High Court, a previous election on behalf of the Crown to accept a plea of guilty to manslaughter in discharge of the indictment was withdrawn and the indictment was tried by Bruce J sitting without a jury. A conviction for murder following that trial was set aside by the Court of Criminal Appeal in a judgment delivered on 23 December 1998. I have read that judgment. 4 I confirm my information to counsel that, save the abovementioned and material which has been tendered before me I do not believe that I have accessed extraneous material and in particular I have not read the judgment of Bruce J. 5 As indicated, the hearing proceeded before me without a jury pursuant to s32 of the Criminal Procedure Act 1986. The parties waived the rules of evidence pursuant to s190 of the Evidence Act 1995. In the result, a substantial part of the trial was conducted by tender of statements by witnesses accompanied by transcripts of testimony given before Bruce J. A transcript of the unsworn statement of the accused at that trial was tendered. This was supplemented by his utterance, again unsworn, of the following four sentences: "Your Honour, I would like to tell the Court what happened. My problem is that it is very difficult for me. I can't seem to say what I want to say and I get confused; even more confused now than I was at the last trial and I did my best at the last trial. It is very painful for me and I just don't think I could do it again." 6 Exceptions were two witnesses who spoke briefly of their acquaintance with and observations of the accused. One of these Raymond Clamback had been overseas at the time of the previous trial and an affidavit by him was received then and re-tendered in this trial. The other exceptions were four psychiatrists, Drs Strum, Jurek, Westmore and Milton whose reports and evidence at the earlier trial were supplemented, in some cases by further reports, and in all cases by testimony. 7 It is a disturbing observation that an accused citizen is potentially liable to the maximum available penalty known to our law upon judicial decision without any contribution to the finding of guilt by a jury of his peers and after a trial significantly conducted "on paper". I strongly urge the legislature to consider exempting crimes of the magnitude of murder from s32 of the Criminal Procedure Act or at least restoring to the courts a power to insist upon trial by jury irrespective of any concert between an accused and the Director of Public Prosecutions avoiding it. I suggest that an observation of the course of this trial would provide enlightenment to those theorists who propose that trial without jury is somehow more expeditious. I do not imagine any competent counsel on either side of litigation would engage in examination of psychiatric and psychological hypotheses before a jury to the extravagant degree undertaken in this hearing. 8 To establish the offence of murder the Crown must prove beyond reasonable doubt that an act of the accused caused the death of Marilyn Maxwell, that the act was deliberate and done with an intention to kill or cause grievous bodily harm. In these respects the central issue of dispute raised on behalf of the accused was his intent or the lack of it. 9 The routine of the victim was to deliver Guy, the son of herself and the accused to the William Lawson Day Care Centre, Prospect. There was in force an order made in the Local Court restraining the accused from being within five hundred metres of that establishment. 10 The accused came to the vicinity in a Ford Marquis vehicle which he had purchased on the previous Friday. 24th August was a Monday. He was dressed in work clothes of his current employer Petrolink but covered these with a hooded yellow raincoat. He brought with him the sawn off rifle wrapped in a towel. He positioned himself at the rear of his wife's car while she was inside the premises delivering Guy. 11 Upon her return he confronted her with the weapon. Three shots were discharged. One projectile twice passed through fleshy parts of the victim's arm and grazed her breast, another missed her completely and a third entered her face with fatal consequence. Investigation has not established the order in which these three shots were fired. The accused acquired the keys to his wife's car and drove from a parking bay towards the public street in an erratic manner. Ultimately following a collision with a post he exited from the car but his departure was prevented by a motorist who used his vehicle to pinion him. The activity of the accused had not gone unnoticed. He was in due course taken into custody and placed in a police van which had been directed to the scene. 12 At an interview conducted that morning which was recorded on video and audiotape, the accused on occasions described to police how the victim had "grabbed" the gun, the suggestion being that this action caused the discharge. There is no doubt that the act of the accused in presenting the weapon which fired the projectile caused the death. The issues are whether his act was deliberate and what was his intention. I find a path to resolution of these issues can be achieved by answering the question: Is there any credit at all to be attached to the claim of the accused that the deceased grabbed the weapon. The claim was made to police soon after arrest. 13 I interpolate at this stage that the accused raised his prior good character. He is entitled to have this taken into account both on the likelihood of his committing the crime and upon his credibility. The latter includes the credit to be attached to his assertions to police as well as statements prior and subsequent to the killing which were made to family, acquaintances and medical practitioners and at trial. 14 I reject the accused's claim that the victim grabbed the weapon and the implication that such an action caused it to discharge. A principal reason for so finding is the circumstance that three shots were fired. The weapon was semi-automatic and required a separate application of pressure to the trigger for each firing. It is simply not the mechanics of the weapon that it would continue discharging shots (until it jammed) upon continuous application of pressure to the trigger whether provoked by someone grabbing the weapon or otherwise. Thus even if one of the shots had been to any extent provoked by such grabbing, two others were achieved by re-pressuring the trigger. Even if some credibility were attached to this claim of the accused, the reaction of the victim was in my judgment no more than a defensive response to threat and does not relieve him of responsibility for intended killing even if there was some element of the unexpected emerging from the reaction of the target. 15 I have said however that I do not accept that such occurred. If there had been such an element of the unexpected or accident, I would expect it to be uppermost in the mind of the person who had wielded the weapon. To no one at the scene did the accused make such a claim and I see no reason not to accept the evidence of Mrs Campbell that when challenged the accused said words like "I had to do it, it was the only way. I haven't seen my son in twelve months. I had to kill her". Some criticism was directed to Mrs Campbell's evidence and I have read the cross examination and had reference to the testimonies of other witnesses whose recollection of what the accused said is different. The distinction is of course premised upon the circumstance that all witnesses were hearing the same utterance. I see no reason to regard Mrs Campbell's evidence as undependable. Contained in it is a plain lie when the accused asserted that he had not seen his son for twelve months and that is compatible with lies and exaggerations to many people concerning the issue of access to his son. Mrs Campbell could have had no knowledge of the accused's assertions in that regard other than by hearing what he said. Her accuracy in that aspect is persuasive towards the probable accuracy of all that she recalled. 16 Although at the police station the accused told police about his wife allegedly grabbing the gun early in his time of custody there, there is what I find to be a notable contradiction of the suggestion of the contribution of an element of accident in the evidence. In evidence there is a typescript of the interview but this was taken from audiotape and the video machine with sound track continued to run during an interval while the audiotapes were being changed. 17 During that period ruminations by the accused were heard on the sound track. These include utterances by the accused "She shouldn't be dead. Why did I do it? Shooting her was stupid". There is confirmation that these can be heard in a question asked of Dr Milton at the earlier trial by counsel for the accused the transcript of which was tendered before me: see Exhibit T36 p585 line 52. It is true that these ruminations are not entirely unambiguous but they are hardly consistent with a claim that although he went armed to force his wife to do no more than talk to him, the weapon unexpectedly discharged because she grabbed it. The unprompted remark "Shooting her was stupid" offers a compelling insight into the circumstances and the state of mind of the accused. 18 I am satisfied to the necessary standard that at the time of the killing, the accused intended so to do. I continue with some further observations and findings which have led me to that conclusion. 19 Firearms are designed to be lethal. An issue is whether any credibility, however faint, should be attached to the claim by the accused that he intended to present the weapon merely as a threat. I find none. On occasions the accused has given at least three different versions of the provenance of the weapon. He said he purchased it in January 1992 for $4,000. It was then intact and the vendor was a man at Kings Cross. Later he himself cut down the barrel and butt. He has also said that he bought the weapon in January 1992 when it was already shortened and he has further said that he bought it just before the killing. I cannot determine where the truth lies as to the acquisition of the weapon but it is inevitable to conclude that the accused has been lying about the matter on some of the occasions. I mentioned to counsel my scepticism that anyone would pay $4,000 unless there was a premium for illegality (shortened weapons are unlawful) and senior counsel for the accused invited me to find that his client told the truth to police when he said that he paid $4,000 but lied to them about shortening it himself. If that be the case then it is interesting to observe on the video the glib recounting of detail to police by the accused of how he altered the weapon himself and the evidence shows that he later took them on a purposeless journey to search the location where he told them he had abandoned the offcuts. The impression I formed is that the accused is both a ready and a persistent prevaricator. 20 As a tribunal of fact, I have examined the weapon. From the point of view of an operator it is of exquisite simplicity. Save the magazine which moves on guides and engages a catchlock in the conventional manner - and I note the accused claimed that he never removed the magazine even apparently when he claimed he was shortening the weapon - it has only three functions with which a user need be concerned: the cocking piece, the trigger and the safety catch. 21 In his unsworn statement at the previous trial the accused claimed that he still did not know what a safety looked like although he added "I was surprised when he showed us it was on top of the gun. I would have thought it was near the trigger". It is not exactly clear that "he" was the vendor but he referred to a fellow who came in and "told us how guns worked". That was not consistent with answers to police. When asked about the bullets, the accused said "Well, it (presumably the magazine) was already in and the guy showed me how to do the safety off and everything was there, that was the whole thing - just there." The safety on this weapon is a simple switch-like button with forward and back positions. The accused said that he test fired the weapon at his mother's home by discharging a round into a bag of potting mix. There is no objective evidence to confirm this occurrence but neither counsel invited me to doubt it. Even if the accused was unsure whether the weapon was safe when the catch was forward or back, after he test fired it he must have been able to appreciate that he had only to move it into the alternative position in order to engage it. 22 The accused is a fitter and machinist by trade and a commercial pilot by qualification. These are not academic occupations. I find the claim that he did not recognize and know how to operate the simple safety mechanism ludicrous and I reject it. I find that he knew when he presented the weapon towards his wife that it was in ready to fire mode with the safety catch disengaged. 23 There is further evidence which convinces me of the accused's homicidal intention. The operation of the weapon was such that spent cartridge cases would eject and the accused inhibited this by taping over the ejection port. Apart from suggesting that the accused understood somewhat more about the operation of the weapon than his plea of ignorance about the safety catch would have it, his action strongly suggests that thought was given to thwarting any ballistic investigation following use of the rifle. Of course ballistic investigation cannot be effectively undertaken in the absence of a weapon which has been disposed of but the significant matter is that taping the ejection port demonstrates to my mind an intention that the weapon be fired and not simply presented as a threat. 24 I add that the assertion by the accused to Dr Jurek in 1997 that he applied the tape in order to prevent his mother being upset at finding an empty cartridge case after the test firing I find quite incredible. I note however that his remark confirms his adherence to having test fired the weapon and I note that if he was really worried about the ejected case, he could simply pick it up and dispose of it. The emergence of this tale years after the event fortifies the poor view which I have formed of the accused's veracity. 25 A number of subordinate issues were explored. I do not find it necessary to trace all of the detail of every one of them but I have found nothing which erodes my finding that the accused deliberately and intentionally killed. I recognize that the actual event may not have taken place in accordance with an original plan or indeed a plan as varied from time to time to accommodate circumstances and I would not expect that every action would coalesce into an ideal pattern of logical steps but the totality of evidence has led me exorably to the conclusion which I have stated. 26 Because reliance was placed upon them I should mention a few matters individually. The accused had purchased the Ford Marquis a few days beforehand. On the preceding Saturday access visit the accused had nevertheless driven to his sister-in-law's home in his mother's car. The Crown argued that he arrived at the day care centre therefore in a vehicle which he knew his wife would not recognize. Perhaps that was so but I do not regard the circumstances of the purchase of the vehicle and the use of it on that day as specifically inculpatory. The Ford car was searched and found to contain items including a dropsheet. Some of the items were of utility in the accused's employment at Petrolink. I do not find that the dropsheet was in the conveyance as a potential shroud. The contention to that effect rises no higher than a possibility. 27 Much reference was made to a hole dug by the accused underneath the home of his mother. I am not satisfied to the requisite standard that this was an intended grave for the victim. That is not to say that I am positively persuaded to the contrary. I do not accept the accused's version that he was merely digging a hole for a safe in which to keep his mother's valuables and got carried away. I accept that he had made some enquiries about a safe and the intended structure was to say the least, extraordinary. It would also appear that if such a safe were put in place the accused's mother would have to retrieve her valuables by going underneath the house where the clearance between under the floor and the ground was minimal. The possibility exists that the hole was intended to have a dual purpose but as I have said I am not satisfied to the requisite standard that I can use this material in proof of guilt of the accused. 28 My attention was drawn to tools which had been newly painted and it suffices to record also that I do not find anything germane to either the issues of culpability or psychology from that circumstance. 29 I have mentioned that the accused was at the scene in a yellow raincoat. He was wearing sunglasses and had pantyhose in his pocket. I am satisfied that he intended to disguise himself but his purpose may primarily have been to prevent those at the centre who knew of the restraining order from identifying him. That leads to contemplation of whether such identification might be foreseen to be likely to provoke a call to police but ultimately I do not find that the matter of disguise is useful in contributing to my findings. No doubt when the accused confronted his wife she would recognize him but I am satisfied that he intended to kill her although whether he intended to do so at exactly the time and place that it in fact occurred is not now directly in point. Counsel argued that gaudy outer garments such as the raincoat were more likely to attract attention than deflect it and I think that is correct but the overall picture is of the accused bent upon intended mischief and whilst disguise does not contribute to proof of murder it does not detract from other evidence which sustains that conclusion. 30 Subject to the partial defence of diminished responsibility made available by s23A of the Crimes Act (to which I will refer simply as s23A), I find the ingredients of murder proved. 31 In a paper published in 1935, Sir Owen Dixon said of the development of the law of homicide that "for eight centuries the course of its very gradual evolution has been from an almost exclusive concern with the external act that occasioned death to a primary concern with the mind of the man who did the act": 9 ALJ (Supp) 64. In Ryan v The Queen 1967 121 CLR 205 Windeyer J (@ 238) said of those remarks that "it may be that this process of common law development is as yet unfinished". 32 The common law has been qualified by s23A which is applicable to this trial in the form prior to substitution by the Crimes Amendment (Diminished Responsibility) Act 1997. The conduct of this case has involved an expansive analysis of the mind of the accused to the extent that I was provoked to wondering whether expert witnesses had not at times entirely ignored the external acts of the accused, a man on any view obsessed by deprivation of perceived entitlement to access to his son, who armed himself and shot dead the competitor parent. 33 It will be necessary to refer to a substantial volume of psychiatric expert evidence but it will not be necessary to recapitulate every hypothesis explored in the evidence. A primary reason for this is that much of the hypothetical was dependent upon a variety of possible fact finding and that in turn depended upon the credibility of various assertions by the accused. I have concluded that the accused is not a person whose statements can be regarded as dependable unless there is supporting material. 34 It is important to emphasize that the onus of proof is cast by statute upon the accused in relation to diminished responsibility and although the standard is upon balance of probabilities, if I cannot for any reason including reservation about foundational material emanating from the accused, determine where the probability lies the defence will not be sustained. 35 Before proceeding to refer to evidence I should record that I am to varying degrees acquainted with all of the expert witnesses. Any rejection of their views should not be taken as implying that I am in any way doubtful of their respective integrity and professional skill but, as they recognized, the ultimate determination must be made by a tribunal of fact, which desirably would be a cross section of the community constituting a jury but in this case, is me. 36 Although the prescriptions of s23A are well known I should state them to authenticate my approach to the issues which basically comprise three: 37 First, was there an abnormality of mind of the type described in the provision, relevantly arising from inherent cause or induced by disease?, 38 Second, did such abnormality of mind impair mental responsibility for the accused's act, namely the intentional killing of his wife? and, 39 Third, if so, was that impairment substantial? 40 Abnormality of mind exists where there is deviation from the range within which there is variation among normal people to perceive events, to form sensible judgment as to whether an action is right or wrong and to exercise will to control actions in accordance with sensible judgment. 41 Mental responsibility also involves the ability to exercise will over physical acts and the extent to which the mind is answerable for them. 42 A substantial impairment is more than trivial or minimal. It is substantial if it is such as warrants the reduction of crime from murder to manslaughter. That definition is articulated in the "new" s23A but it represents an authorized approach to the provision as presently applicable as well. 43 Retaining therefore a focus upon what needs to be proved to sustain the partial defence, I turn to some evidence. 44 Dr Strum reported on 6 October 1993. He had seen the accused on ten occasions between April and August of that year. He had also interviewed his mother. Part of the history recorded in the report is disturbing. The accused told of receiving a note a few days before the shooting (elsewhere alleged to have been delivered by Guy at the time of the access visit on the preceding Saturday) which was quoted by Dr Strum in what appeared in his report as verbatim terms: "Brian Guy has been diagnosed as having Perthes Desease (sic). He needs the operation on his hip and he will wear leg braces for twelve months. If you love your son send some money. Marilyn." 45 It has transpired that Dr Strum has never seen such a note and the parenthetical observation refers not to a spelling error in any original document but in some document (now unable to be produced) which the accused supplied to Dr Strum as part of history. 46 The disturbing element is the demonstration that the accused not only has been shown to prevaricate from time to time but this would appear to reveal that he is prepared to manufacture evidence even if it is purported to be only secondhand. The accused bears the onus on the issue of diminished responsibility but I am positively satisfied that the alleged note (said to have been on yellow paper) claimed to have been despatched with Guy on the Saturday is a matter of invention. There was in fact a letter from the accused's wife dated and sent in June which is in evidence and it referred to diagnosis of disease by a general practitioner and informed the accused there had been a referral to a specialist. I accept that Mr Wayne Clamback probably also saw a letter (said to have been on blue paper) making some reference to Guy's condition. I consider his recollection of the content has probably become faded over the years. He remembered it being said that she (the deceased) wasn't concerned that he (the accused) had obtained a second opinion. It is factually incorrect that the accused ever obtained a second opinion and this suggests to me that there is some confusion in Mr Clamback's recollection. He further remembered that the letter said that she was going ahead (with the operation) and asked for money. I am unable to say whether those recollections may not also be tinged with some confusion. 47 Dr Strum had not seen the letter of 28 June 1992 (which is the only letter which has actually been produced) until he gave evidence at the first trial. After he saw it he volunteered that it was a most reasonable letter. I agree. That such a reasonable letter was written makes me somewhat sceptical that the same author would have shortly thereafter despatched one or two other seemingly unreasonable ones. It was said that there was no medical support for the impression that Guy might be in callipers for a year as mentioned in the June letter and that correctly reflects the evidence. But from wherever Marilyn Maxwell got the idea, she stated in the letter that it was conditional upon the condition worsening and there was no suggestion that it would affect any access by the accused to his son. 48 I return to Dr Strum's evidence. In his report of 6 October 1993 he recorded the accused's "conspiracy" assertion that Guy was being subjected to unnecessary surgery in order to prevent him having access. Dr Strum continued: "It is certain that irrespective of the irrationality of this proposition, Mr Maxwell not only believed in its truth at the time but continues to believe in its truth".

I am unable to detect any objective source for Dr Strum's certainty concerning the accused's belief especially as it might have existed at the time of the killing. It appears to me that Dr Strum would be reliant upon the credibility of the accused which is somewhat distant from producing certainty, and indeed Dr Strum in his own testimony confirmed that he was aware that the accused had told him untruths from time to time and he himself had wondered about his veracity. 49 Dr Strum thought that the delivery of the note on the Saturday with its alleged content could be described as a trigger for the homicide. I have found its existence unproved. Nor am I satisfied that the accused had any belief that a conspiracy existed to subject Guy to unnecessary surgery at all and specifically no belief that such was being undertaken for the purpose of denying him access. The records of the practice and the evidence of general practitioners contradict his claim to have gone to see a doctor upon receipt of the note. My acceptance of that evidence is fortified by my further acceptance of the evidence of Dr Scougall that he had no conversation with the accused and specifically no conversation in which he demanded the joint presence of the parents before he would discuss issues surrounding Guy. A palpable lie about contact with Dr Scougall has been repeatedly advanced by the accused. 50 Dr Strum's first diagnosis was that the accused had a depressive illness which had developed into a "full blown major depressive episode". I do not accept that diagnosis which is based upon unreliable history, parts of which have been falsified by the accused. 51 I find other difficulties with Dr Strum's diagnosis. By the time he gave evidence at the first trial he was aware of the opinion of Dr Westmore diagnosing severe personality disorder but significantly discounting depression. In testimony he said he could well understand Dr Westmore's view but, at that time at least, he did not see it (I assume, diagnosis of the accused having a severe personality disorder) that way. 52 By the time Dr Strum saw the accused and reported in October this year, he had come to accept Dr Westmore's opinion in the sense that he now proposed that in 1992 the accused had been suffering from two abnormalities of mind, a basic severe personality disorder on which there was superimposed a depressive illness. Dr Strum recognized that this change may lay him open to criticism and it is to his obvious credit that he nevertheless was prepared to expound it. That does not however make the new view attractive to rely upon. 53 Reading of the transcript will reveal the need apparently felt by counsel to explore at length the bases of a great many observations made by the experts. For example, Drs Strum and Jurek were examined and cross examined about a view that a personality disorder either develops or can develop from stresses upon extant personality traits or characteristics whereas Drs Westmore and Milton were examined and cross examined about their contrary view that this does not occur. I am not qualified to rule on the dispute, if that is what it is, and I reiterate that my task is to determine whether the evidence persuades me that the accused has discharged the onus of proof cast by s23A. 54 There are some matters however upon which I can express a view. Dr Strum thought that the accused's remark concerning the weapon that he "didn't want a long one" was absurd. I respectfully disagree. Short, that is to say not long weapons are concealable which is a highly desirable quality when a person is arming himself with criminal intent. I was deprived of the opportunity of seeing the accused deliver the lengthy unsworn statement transcribed at the first trial but its content was said to demonstrate thought disorder. The statement certainly pays long attention to irrelevant detail and the description rambling was not inappropriate. I note the various interventions permitted by the trial judge at the first trial for counsel to redirect his client's attention. However, in reading it I found little difference between its quality and that of many which I have heard or read wherein an accused will elaborate in excruciating detail about peripheral or irrelevant matters and barely touch upon crucial and inculpatory matters. It has not been in my experience unusual for a brief and almost formal denial of guilt to be buried within lengthy elaboration of descriptions of the lifetime contact between an accused and his victim. I am unpersuaded to accept the unsworn statement of the accused as manifesting thought disorder. 55 I have digressed from dealing with specific expert testimony. A transcript has been taken of counsel's address in this trial and nothing will be gained by my reproduction in these reasons of the points and counterpoints which can be read there. I should advert to the matters which have led me to the conclusions which I have reached and my reasons for so doing. 56 I have noted that Dr Strum said that on many occasions he had wondered about the accused's veracity and I accept that he took that into account when forming his opinions but given what I have found to be falsity in critical information upon which reliance was placed I do not regard those opinions as sustaining the partial defence. I add that the fluidity of opinion as it has changed over a span now exceeding seven years also causes me to have the reservation that anything emerging for expression in 1999 may not reliably be related back to 24 August 1992. 57 Dr Jurek first saw the accused in 1997. Reporting after seeing him for the second time in April of that year she opined that he was suffering from a Disturbed Mental State, the aetiology of which was a depression with paranoid features. She had at the time seen reports from Drs Strum and Milton but had not seen any from Dr Westmore. She expressed her agreement with Dr Strum's diagnosis of Acute Depressive Episode and my reasons for declining to rely upon that diagnosis remain applicable. 58 Dr Jurek said that she assessed the accused as pretty close to psychotic. By 1999 Dr Strum was hypothesizing to the same effect, going so far as to raise the possibility of a M'Naghten defence, that is that the accused may be not guilty on the ground of mental illness. My attention is directed to the accused's mental state and responsibility on 24 August 1992. Whilst I am conscious of the specialized training attaching to the practice of psychiatry, the weight to be given to such view bearing in mind that to be relevant the view must relate back to the stated date, is somewhat eroded in the absence of any observation of suggestion of psychosis by medical practitioners seeing the accused at the time. 59 Dr Young saw the accused, on one occasion with his mother, and had discussions mainly about treatment and alleged mistreatment of Guy. He did not formally examine the mental state of the accused but noted that he was disturbed and agitated, obsessed about his son and vindictive towards his wife, but he did not think he was psychiatrically unwell in the delusional sense. Dr Young was seeing the accused between November 1991 and February 1992 and he did not then consider that the accused was psychotic. Dr McPhail described the accused as a belligerent man who on at least one occasion used the consultation to criticise his wife in front of his son. Dr Doust did a fitness for flying examination in December 1991. He noted emotional distress said to centre upon deprivation of access. This was of course an exaggeration as the accused was having access to his son although overnight access had been stopped after an incident at about that time. Dr Doust thought that the accused could rapidly develop an anxiety depression in that state of affairs. I infer therefore that he was not then depressed nor did Dr Doust assess him as psychotic. He expressed concern at about what might happen in the future. 60 Dr Kitson had an opportunity to observe the accused during a very significant period. He first saw the accused on 15 January 1992 although the consultation was about cholesterol levels. The accused returned to see him on 4 February and spoke about marital problems including alleged difficulty in having access to his son. I repeat, in truth access was not being denied rather the accused was not apparently getting the access which he wished. Dr Kitson thought that the accused "was considerably seriously agitated". The accused came to see him again on 16 February, 5 March, 8 April and 11 May. These consultations involved distress about the accused's perception of his family situation. Dr Kitson continued to see him although for medical problems on 2 June, 5 July and 15 August, the lastmentioned occasion being just over one week before the killing. Dr Kitson thought that the accused was depressed and extremely agitated however it offers some indication of the scale of the situation that Dr Kitson did not think that the accused was in need of any treatment other than counselling. This he recommended but the accused did not implement the recommendation telling Dr Kitson that he preferred to continue seeing him. Dr Kitson confirmed that if he had been very concerned about mental state he would have insisted that the accused see a trained counsellor and if he thought that he was even more seriously disturbed he would have insisted that the accused see a psychiatrist. He insisted upon neither of these two things which suggests to me that it is highly unlikely that the accused was psychotic or near psychotic then or at the time of the killing. True Dr Kitson was not a psychiatrist but I would expect the expertise of a competent general practitioner such as Dr Kitson particularly having the advantage of multiple encounters, to extend to perception of the possibility of psychiatric illness and the need for expert consultation. Dr Kitson obviously did not perceive that possibility or need. 61 I do not place any reliance upon the views of Dr Strum and Dr Jurek, expressed and to a large extent formed many years after, that the accused was at the time of killing near to psychotic. I have already commented on the basic defects in history which infect the views of both Dr Strum and Dr Jurek and therefore their opinion concerning major depressive episode. My reliance upon Dr Jurek's views is also inhibited by apparent contradiction in some evidence given by her in the first trial on 25 May 1997. As I have noted, she saw the accused in prison in March and April of that year and she testified (transcript p 468) that when she saw him at Long Bay he was not deeply depressed but then expressed an opinion (transcript page 495) that he was still suffering from a major depressive illness. This may be explained in Dr Jurek's view that the illness fluctuates but if manifestation is capable of fluctuating then I have great difficulty in projecting that opinion back to August 1992 from consultations in 1997 and making a finding that the accused was suffering from abnormality of mind when he engaged in the act of homicide. 62 I am conscious that Dr Jurek's references to psycho-dynamics indicate her recognition that neither illness nor human behaviour occurs in a static fashion so that such matters can be frozen as it were at a chosen moment (such as that at which homicide is committed) however there are a number of factual matters and opinions which Dr Jurek apparently relied upon which I do not accept. The accused reported losing about twenty kilos in weight. I reject the evidence of the accused's mother in corroboration of this and I am not satisfied that it is realistically supported by the evidence of Mr Bone. If anyone would have noticed such a dramatic decline in body bulk I would have expected it to have been Dr Kitson. His evidence tended to the contrary. If the accused had had a weight loss in 1991 he was, as reported to Dr Kitson, gaining in 1992. I find it hard to regard this assertion of weight loss as a reliable foundation for opinion about florid psychiatric illness at 24 August 1992. 63 I do not share the view that it was "crazy" to test fire the rifle and to tape the ejection port. Even if the claimed intention to assess noise is accepted I would not expect that a single discharge from a .22 rifle (shortened) would be likely to provoke more than momentary curiosity in a neighbourhood. Dr Jurek referred to taping the ejection port in the context of the accused's assertion to her that he did so because he did not want his mother to be distressed by finding an empty cartridge. As a reason it does not merit Dr Jurek's description and I have already mentioned that it would be easy enough simply to pick up the shell but more importantly I do not regard what he stated to Dr Jurek as representing the true motive of the accused for sealing off the ejection port. 64 I do not overlook that in 1997 Dr Jurek explained her report in terms of thinking that the accused suffered a "combination of a depression on top of a personality disorder" which is in harmony with the opinion finally expressed by Dr Strum in 1999. However she was also significantly affected in forming that view by the circumstances of the delivery of the yellow paper note on the Saturday which I am not satisfied existed. Dr Jurek thought this was a trigger for the killing on the following Monday and said that in its absence she would have to concede that she could not see what triggered the killing. 65 The third psychiatrist called on behalf of the accused was Dr Westmore. He first saw the accused within two weeks of the killing. He was apparently retained by a solicitor then acting for the accused. He next saw him at the request of another solicitor on 5 February 1997. As he conceded at the first trial, when he engaged in the latter consultation and wrote his report, he was not conscious that he had seen and reported on the accused previously and the respective reports were not cross referenced. 66 The report of 29 September 1992 obviously offers the nearest to contemporary psychiatric assessment of the accused at a time relevant to the killing and the defence raised on his behalf. The opinion and conclusions expressed then, I set out in entirety: "Your client faces the serious charge of murder. The deceased person in this matter is his wife, from whom he was separated for a period of twelve months before the incident leading to her death. It would appear that the issue of access to their son was the focus of much disharmony with Mr Maxwell believing that his wife's mother and sister controlled and dominated her to the extent that they excluded him seeing his child. He expressed his view that his wife was a somewhat inadequate person who was completely controlled by these two people (her mother and sister). While your client does not suffer any specific psychiatric disability in the form of a major depressive illness or a psychotic process such a schizophrenia, he clearly was greatly disturbed and distressed by the circumstances surrounding the breakdown of the marriage. In view of the apparent intensity of the relationship he seems to have had with his son, certainly it is as he described it to me, the possibility of the defence provocation should be considered in this case. I should note that at this stage I have no documents relating to the facts in this matter, nor statements of witnesses that might add further history to that provided to me by Mr Maxwell. I am a little unclear at this stage as to whether his preoccupation with his son was an abnormal one having already noted that it was an extremely intense one. At this time I do not believe the defence of diminished responsibility is available to him but should there be other evidence to suggest an abnormality of mind being present at the time then I would be happy to review my conclusions. If I can provide any further information or assistance please do not hesitate to contact me." 67 I can ignore the reference to provocation. It is not suggested that the facts on any view fall within the context of s23 of the Crimes Act. In the course of time Dr Westmore has come to the opinion that the accused suffers from a severe personality disorder, the magnitude of which he assesses as constituting an abnormality of mind. To be relevant to my task such abnormality of mind had to be present on 24 August 1992. Dr Westmore has explained that he would not, save in an exceptional case, diagnose such a personality disorder from a single consultation and I accept that. What demands my attention is the absence of any suggestion in September 1992 that further consultation was indicated. As the above extract shows, there is no request based upon either the accused's presentation nor even upon intuition, that there should be further examination for assessment. Review was postulated upon the production of other evidence and not any further investigation by the psychiatrist. I find it significant that at a time so proximate to the event Dr Westmore confidently negatived major depressive illness and psychotic process. 68 My conclusion is that nothing in the presentation of the accused to the expert offered even suspicion that he was suffering from a personality disorder of the magnitude now suggested - or, given the absence of mention - at all. 69 When Dr Westmore was retained on the second occasion, he first reported (7 February 1997) that he would require further consultation before he could form an opinion. This was arranged and in his report of 2 April 1997 he offered the opinion of severely disturbed personality to be classified as disorder. He has adhered to that view and his conviction in it has been intensified by many encounters with the accused since. Dr Westmore has described how the accused even approaches him when he is at the prison to see someone else and he has observed the same traits and characteristics manifested in such an extreme way that he is even more certain in his conclusion about disorder. I recognize that Dr Westmore has said that it is necessary for him (or for anyone) to see the accused on many occasions in order for the impressions to be communicated and diagnosis made. 70 I accept what I understand to be the conventional definition that a personality disorder is an enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment. On that definition, of course, if Dr Westmore's present diagnosis is correct then, absent its identification or observation of suggestions of its presence at the interview in September 1992, the disorder must nevertheless have been extant. 71 This leads to comment upon testimony from Dr Milton who was called by the Crown. He has never interviewed the accused. It was said by counsel that this was because the request was made after Dr Milton had written a report to the representatives of the prosecution. Where the Crown bears the onus of proof of guilt, no adverse inference can be drawn from an accused exercising the privilege of silence. I apprehend that the situation is different when by express legislation the accused bears the onus of proof, however I infer that the accused acted on legal advice in refusing to see Dr Milton and I do not weigh that circumstance against his interest. I deal with the issues on the objective basis that Dr Milton did not have the experience of consultation which was available to Drs Strum, Jurek and Westmore. 72 As I perceive the situation the final views of Drs Milton and Westmore are not greatly separated. Although there is the difference to which I will refer, it is of interest to note that Dr Milton's present view is highly compatible with that expressed by Dr Westmore when he saw the accused in 1992. Dr Milton acknowledged that the accused manifested a number of personality traits and characteristics but he did not assess them as constituting diagnosed disorder. Dr Westmore considered that they do. Of course there are differences in the material upon which they each rely to reach their respective conclusions but little would be gained by my attempting to collate and tabulate all the pros and cons. 73 One matter to which I will refer in deference to the extent of attention paid by counsel concerns a remark by Dr Milton about Dr Westmore's inability to classify the personality disorder which he diagnosed into a particular category. Dr Westmore opined that the disorder was of a mixed type. My attention was drawn, as was that of witnesses on many occasions, to the 4th Edn of Diagnostic and Statistical Manual - DSM IV. That publication refers to ten specific patterns of personality disorder: paranoid, schizoid, schizotypal, antisocial, borderline, histrionic, narcissistic, avoidant, dependent and obsessive-compulsive respectively. DSM IV however recognizes "disorder not otherwise specified" including cases where a person's pattern meets the general criteria for several of the traits. This last I understand to comprehend Dr Westmore's diagnosis of mixed disorder. For myself, I reach no conclusion adverse to the case being presented for the accused by reason of the absence of specific label. 74 I earlier mentioned the videotaping at the police station on the morning of 24 August. The video tapes have been viewed by the experts and somewhat intensely studied by Dr Milton in the absence of direct contact with the accused. I am in a position similar to Dr Milton. It is an interesting observation by Dr Westmore who apparently had not seen the tapes until recently that upon viewing them he described that "he is an obsessional narcissistic man, he externalizes responsibilities for his actions onto others, his themes are generally ones of trying to provide some rational explanation or justification for his actions towards his wife". Save that I would substitute "justification for killing her" for the somewhat euphemistic "rational explanation or justification for his actions towards his wife". Dr Westmore's words offer a fair general description of my own impression. 75 My conclusion about the divergence of view between Dr Westmore and Dr Milton is that they differ essentially as to degree. My task is not to certify the correctness of any such opinion and I am far from qualified so to do. My task is to apply the evidence which I accept to answering two of the three questions which I have posed concerning s23A, whether there was a deviation from the range over which normal people might vary in the perception of events, the ability to judge right and wrong and will power to control physical acts (as possessed by the accused at the time of his homicidal act) and second, whether if so, the impairment of mental responsibility which that represents was substantial so that it warrants reduction of what was otherwise murder to manslaughter. 76 When Dr Milton gave evidence at the first trial he was cross examined (25 May 1997) about some evidence which he had given in the trial of an accused Mr Nguyen where he had said: "Well, my own impression was that this was not the result of a depressive illness or psychiatric disorder. It brings up I suppose in a way a kind of philosophical issue really but psychiatrists will sometimes see human behaviour as a disease, whereas this is often the way humans have been behaving for thousands of years. Psychiatrists will often perceive a particular behaviour as disease whereas if you look at literature, history and everything else, it is the way human beings have been behaving right through history and they regarded it as normal tragedy, normal suffering if you like, part of the way of ordinary life, is difficult life. As we all know life wasn't meant to be easy and that psychiatrists, I think, have a tendency to say that look, this is a disease because it fits with certain criteria and I think that although psychiatric disease involves human suffering, not all human suffering is necessarily disease or abnormality of the mind, if you like, putting it in legal terms." 77 Coincidentally that very passage was sometime after the first trial described as a sound commonsense approach to be taken (to diminished responsibility) in the Court of Criminal Appeal: R v Nguyen CCA unreported 20 March 1998 per Hunt CJ at CL. 78 In a report prepared on 8 October 1999 Dr Milton confirmed his adherence to the above view and stated: "When I gave evidence I referred to what I believed to be a tendency in psychiatry to expand the borders of illness, the result being that a considerable amount of ordinary human suffering or individual differences might be regarded (especially in legal proceedings involving a serious offence) as abnormality. Mr Maxwell has been described as being discursive, obsessional, self centred, and unduly suspicious. Dr Westmore considers these constitute a personality disorder, but was unable to classify it into a particular category. Homicide is a rare crime and it is likely that those committing it will have personalities different, in the main, from the rest of the population. That does not, in my view, constitute sufficient reason to make a diagnosis of personality disorder (especially of a non specific kind) and to regard the personality disorder as substantially diminishing a person's responsibility for having committed a serious crime." 79 I have commented above on the absence of specificity of disorder but, placing that to one side, the balance of Dr Milton's remarks do attract me as a sound commonsense basis for approach. 80 I am acutely conscious that from the torrent of words in the reports and the testimonies there can be constructed plausible theses for support of a partial defence but, as the witnesses recognized, the task of evaluation must be undertaken by the tribunal of fact. Although, as is obvious in its expression, s23A is concerned with mental responsibility I do not believe that the law has developed to a point where when dealing with it, it is appropriate to ignore the external acts. Indeed the necessity so to do can be demonstrated by extrapolation from the evidence. It was remarked that psycho-dynamic theorists postulate that anger and depression are external and internal manifestations of the same thing. It is difficult to imagine that the community (or the law) would accept that anger in isolation, however heightened, would diminish responsibility for intentional killing nor that such is contemplated by s23A. Yet it was accepted by all expert witnesses that depression (even of the non-endogenous variety) was an available basis for the defence. Logically then, if so, why not anger? I do not suggest that this theory or my comment is directly relevant to present findings but it is mentioned as a demonstration of the seeming paradoxes that, if one chooses, can be extracted from the evidence. It is therefore relevant in my view to bear in mind that the accused executed the homicide after preparing by arming himself with a loaded weapon with disengaged safety and lying in wait for the victim. 81 I shall summarize some conclusions. I am not satisfied on the balance of probabilities that the accused was at the time of the killing suffering from what I will call for convenience clinical depression. Neither Dr Westmore nor Dr Milton supports that view and I have mentioned the deficiencies of fact underlying the formation of those opinions which do support depression. I have not thought it necessary to detail the endorsements in the prison medical file but it suffices to say that they do not corroborate major depressive episode as the accused was observed shortly after 24 August and I have considerable reservation about the proposition that killing could have a cathartic effect of ameliorating such a condition if it existed. I record that there was hearsay evidence about opinion concerning the availability of a defence of diminished responsibility said to be held particularly by Dr Barclay and Dr Lewin. The suggestion was not that their opinions advanced the case of the accused but in the circumstances I have put what was said entirely to one side and that hearsay has not contributed to any conclusion which I have reached. 82 I have given careful consideration to whether the thesis proposed by Dr Westmore that the accused is suffering and was suffering severe personality disorder should be accepted. The firming of his view by repeated contact with the accused conveyed considerable conviction and as I have said, by definition if the accused now has a personality disorder of the requisite diagnosable severity, then it was extant in 1992. My final conclusion is that the accused has not discharged the onus of proof in relation to this issue. The cogency of Dr Westmore's opinion is undermined by the absence of any reference to any signs or indications of the possibility of such at the early and therefore, in a temporal sense, most advantageous consultation. Second, given that a matter of degree is involved, I consider weight should be given to the estimates of Dr Milton which have been consistent throughout and consistent with the philosophy which he has disclosed and espoused. I do not consider that the relatively late arrival of support for the diagnosis of severe personality disorder from Dr Strum and Dr Jurek brings the balance of probability into the accused's favour. 83 I am not, of course, holding that the accused does not and did not have personality traits including being obsessional, discursive, narcissistic and suspicious, nor do I reject the notion that in the crisis in which he perceived himself he could be described as being in marked distress. That was very much the way Dr Westmore first saw him and Dr Milton still sees him. The issue is whether or not the degree of traits are such that abnormality of mind can be diagnosed. 84 I am unpersuaded that the accused's symptoms, traits or characteristics affected his perception, judgment and control in the relevant ways so that I assess him to be outside the variation I would estimate for normal people in the circumstances. I am not persuaded on the evidence that the accused has proved that he was at the time suffering from a relevant abnormality of mind. 85 Further, assuming to the contrary of my findings that the accused did suffer an abnormality of mind in the relevant sense, I would not assess impairment of mental responsibility as substantial. I recognize that such is a value judgment but I take into account all the surrounding facts including the preparations made by the accused, arming himself, not applying the safety, disguise and lying in wait for the victim. I do not consider any impairment warrants reduction of his crime to manslaughter. 86 I find the accused guilty of murder as indicted and enter verdict and judgment of conviction accordingly.

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