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.