Ground 3
31 The Appellant submitted that his Honour was obliged to direct the jury on diminished responsibility and leave the option of a finding of manslaughter to the jury.
32 Although not the subject of submissions, it appears that the form of s23A before the coming into effect of the Crimes Amendment (Diminished Responsibility) Act 1997, on 3 April 1998, was applicable to the Appellant. It is not necessary to decide this point as nothing turns on the distinction for present purposes.
33 It was Newman J who raised the issue with trial counsel for the Appellant:
"HIS HONOUR: Indeed, in the back of my mind during the evidence of the psychiatrists I was considering whether or not I should put diminished responsibility. But the psychiatrists did not seem to go into that area at all.
HEALEY: No, that is not our case.
HIS HONOUR: Plainly enough you agree with me, it is not a case in which I can put diminished responsibility".
34 No explanation was provided to this Court on the reason why diminished responsibility was not pursued at the trial. No evidence was adduced in this Court, as is often done, to explain the decision not to pursue such a case.
35 The submissions to this Court did not attempt to bring this case within the limited circumstances in which the conduct of a trial can lead to appellable error. (See R v Birks (1990) 19 NSWLR 677 at 683-685 per Gleeson CJ.)
36 Irrespective of the conduct of a criminal trial on the part of the accused, there is an obligation on the court, in certain circumstances, to give directions to the jury to avoid a miscarriage of justice.
37 This issue arose in a relevantly analogous way in Pemble v The Queen (1971) 124 CLR 107 in the context of a provocation defence to murder. In that case, Barwick CJ said at 117-118:
"Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
In Mancini v Director of Public Prosecutions [1942] AC 1, provocation was not relied upon by defending counsel. In Kwaku Mensah v The King [1946] AC 83, the provocation was not raised at the trial nor in the reasons in the Appellant's case for the consideration of the Privy Council. But, there being material before the jury on which they could properly have found provocation so as to reduce the crime from murder to manslaughter, their Lordships considered the absence of any direction as to provocation when that matter was raised by counsel in argument before them for the first time; and for lack of appropriate direction set aside a conviction for murder.
Here, counsel for the defence did not merely not rely on the matters now sort to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused." (See also at 133 per Menzies J)
38 Section 405B of the Crimes Act 1900 as in force at the time of the trial (now relocated to s49 of the Criminal Procedure Act 1986), provided that an accused person must not, without the leave of the Court, adduce evidence tending to prove a contention of substantial mental impairment, unless the accused gives notice of an intention to do so. In the proceedings before this Court, the Crown did not rely on the absence of notice.
39 Perhaps the considerations referred to in Pemble, which require a direction on the part of a trial judge, can be applied to formulate a requirement to give leave under s49 in circumstances of the character now before the Court. In any event, the statutory prohibition in s49 does not prevent reliance on s23A. It forbids the adducing of evidence tending to prove such a contention. That evidence was, according to the Appellant's submissions in this Court, adduced in any event in the course of establishing a defence of mental illness. As s49 was not relied upon by the Crown, it is not necessary to express a final view on this matter.
40 I am not aware of any case in which the reasoning in Pemble has been applied to a defence of diminished responsibility. It has, however, been referred to in the context of the defence of mental illness in R v Ayoub [1984] 2 NSWLR 511 where Street CJ said at 515:
"It is, of course, clear that, if the state of the evidence justifies it, a trial judge will put to the jury the defence of mental illness of his own motion. R v Damic [1982] 2 NSWLR 750 is a recent instance of such a case. Moreover, irrespective of whether or not the accused raises or disclaims such a defence, a trial judge, if he sees it as fairly open, may well have a positive duty to put the defence himself: Pemble v The Queen (1971) 124 CLR 107."
41 The issue is whether or not the defence of diminished responsibility was reasonably open on the evidence before the Court.
42 The Appellant's submissions were based on the proposition that the Appellant has lost the opportunity of a conviction for manslaughter. Plainly, significant differences exist between the M'Naghten test and the statutory provision for diminished responsibility. In particular, the elements of incapacity to control himself did not arise explicitly on the mental illness defence. Furthermore, a test of "substantial impairment" is less stringent.
43 The factual basis for the Appellant's submission that a proper basis for a diminished responsibility finding under s23A of the Crimes Act 1900 had been established consisted of certain statements made to police and ambulance officers on the night, the contents of an electronically recorded interview with police and his own statements made to the psychiatric witnesses, together with the expert opinions. In the record of interview, the Appellant said on several occasions "I just lost control of myself". Reliance was also placed on his suicidal conduct. The Appellant stabbed himself several times on the night of the killings. He also wrote two letters, which counsel for the Appellant described as suicide notes.
44 The Appellant's explanation for his conduct was set out in the two letters he wrote on the fatal evening, purportedly before the killings.
45 The Appellant's letter to his mother was as follows:
"I have given my beautiful wife and my darling daughters an incurable disease which cannot be cured. I am (the word 'dying' and the word 'a' is crossed out) more advanced in the disease than what my darling girls are, so it would be impossible to care for them when they went into the advanced stages of this disease. Sandy doesn't no (sic) I have this disease, but she is complaining of the same symptoms. Sandy and my beautiful daughters are now sleeping in bed, so she is not aware of what I am going to do. I deserve to go to hell for what I have done to my beautiful girls, and I more than likely will. Sandy and my beautiful daughters will no doubt go to a better place, where there is no disease, into the arms of her mother and the girls' beautiful grandmother. You have been my guiding light throughout my life and I love you dearly. Please continue to let that light shine for the rest of the family. Your loving son, Stephen."
46 The Appellant's letter to his father-in-law was:
"I have given my beautiful wife and your adorning (sic) daughter and grandaughters an incurable infectious disease. I found out last week that I only had a short time to live from this disease Sandy had been complaining of some of the symptoms that I have already been through your beautiful daughter and grandaughters are now sleeping soundly so my beautiful wife is not aware of what is going to happen. Sandy and the children will be joining Beryl in Heaven and I will no doubt go where I belong Hell. Ian I love my wife and daughters just as much as any other man but I will not be able to care for them when they get sick this disease is extremely ostracised in the community and there is no known cure or will be in the forseeable future. I don't no (sic) of any more to say but I no (sic) Beryl will be calling for them in Heaven. I am so sorry that I have done this to your beautiful daughter and grandaughters. May only the Lord find it in his heart to forgive me.
Stephen
I have betrayed my family like no other man can."
47 The Appellant also asserted that he believed he had AIDS and had infected his family in statements made to ambulance and police officers in the immediate aftermath of the killings. He made similar statements to the two psychiatrists called in his case.
48 The first expert called by the Appellant at the trial was Dr Milton. In examination-in-chief, Dr Milton gave the following evidence:
"Q Did you ask him questions as to whether or not he was suffering from any other forms of established mental illnesses?
A I asked questions directed towards that, and there was no indication of any other mental illness. I think the weight loss perhaps could indicate some preceding depression, but nothing else of note.
Q He was able to concentrate on your questions and provide you with answers?
A Yeah, he was reasonable, taking into account the circumstances.
Q Are you able to say anything about the thought disorder during the time that you were speaking to him?
A No, his thoughts were properly ordered, not disorganised. They were arranged properly with the subject and the verb and the object in the sentence, and properly set out, that kind of thing.
Q Did you also receive some additional material from his brother David about obsessional tendencies that the accused exhibited as a child?
A Yes, Stephen had these obsessional habits, which are not an uncommon thing, but it evidently happened to a degree as to any of his others. He'd touch things in a ritual sort of way, and he jiggled his legs and generally acted in such a way as to suggest he was of an obsessional and perhaps basically very anxious nature.
Q Doctor, did you form some opinions in respect of this man on 8 March of this year?
A Yes.
Q Are you able to refer to those in terms of whether he was suicidal?
A Yeah, that is the first thing I was concerned about, and I thought all the information that I had had, and all my observations in the interview, suggested he was actively suicidal and had been at the time of or immediately after the deaths. I have noted here he layed quietly most of the time, but I got the impression that he could suddenly become impulsively self-destructive, like getting up, tearing out his drips, running out of the hospital, jumping off a balcony or doing something like that."
49 Dr Milton then gave the following evidence:
"Q Now doctor, were you able then to form an opinion in respect of the acts that were carried out by this man on the night of 5 March 1998?
A Yes I was.
Q And what was that opinion?
A Well, I considered that four months earlier he had formed a belief he was suffering from AIDS and that some how he had the notion that he had got this by heterosexual intercourse before his marriage; that he felt devastated at believing he has AIDS - had AIDS - but by the same token, couldn't bring himself to seek help.
I concluded that he felt intensely troubled and I noted a loss of appetite, loss of weight, trouble concentrating. There were some minor sleep difficulties. He said that he took three jobs in order to distract himself from his worries, although his brother thought he did that extra work because he had some financial problems from being too keen on gambling.
Now, about a month before the deaths he perceived at least what he thought was signs of the infection in his wife and two young daughters, and in his view he had effectively murdered them by giving them the disease. But I don't think at that time he'd formed any notion of harming them.
I have referred again to him taking a day off work on the Thursday 5 March and to the shopping trip, and then during the day seeing his daughters coughing, and I have referred to him writing a letter to father-in-law and his mother. And then I have mentioned the facts as recounted to me about the deaths themselves. And then, when being found by the police, calling out to them not to approach because he had AIDS.
I concluded that he intentionally killed his wife and daughter and he wounded one other daughter and he did so as a result of a delusion. The delusion was that he had AIDS and he had infected them with it, and in consequences they were going to die as a result of his improper actions.
The type of delusion is described as a hypochondriacal one, if one wants to apply a term to it, and that is quite consistent with his brother's account of him always having a very strange pre-occupation with his physical health and having had strange beliefs about the significance of any symptoms he had and whether he had serious diseases and whether he might die from them. It is also consistent with a family history of the same problem.
I concluded that he knew what he was doing, but because of the delusion he was unable to reason with an even moderate degree of composure about what he was doing was wrong. I believe that when he committed the acts leading to the deaths and the wounding he mistakenly thought he was doing right, that is, of course, to save the family suffering from something he thought would be a terrible end.
Q Now doctor, have you had any experience of a similar kind in your professional career?
A Yes I have. It is not common for a person who is a hypochondriac to actually to get a delusion, that is an actual belief, they have the disease, or a disease. But I have seen one other person who had a belief that he suffered AIDS, and this followed after being bitten by another person. And this man's behaviour reached the level of delusion. He was unable to work for many months and he subjected his family to all sorts of unusual examinations each evening to check the progress of what he thought was a disease that they may have got from him. I was much impressed at the parallels between the two cases."
50 Later in evidence Dr Milton said:
"Q You are aware of the placing of the child Briahna beside the mother?
A Yes.
Q What do you say about that?
A That is a measure of concern the accused had for the dead child and of his affection for her.
Q In conjunction with the number of stab wounds to Briahna and the placement of the body, are you able to say something about that in your opinion?
A I think there was a determination to kill her and once having done so he wanted to put her body somewhere where it would be near the mother, in essence a kind of loving gesture as far as one can apply that."
51 In Dr Milton's view, the number of stab wounds was evidence of a "determination to kill". This was in response to questions directed to a report written by the Crown's expert, Dr Strum which said that the number of stab wounds was evidence of something else, for example, anger.
52 In cross-examination, the following exchange occurred:
"Q Did you say earlier in your evidence he was not psychotic?
A No, I can't recollect. I think he was psychotic, he qualifies for delusional disorder, which is a psychosis. I think I said he didn't show obvious signs of psychosis, when you think of schizophrenia, people who are floridly insane.
…
Q What you are saying is that in doing what he did he didn't know that it was wrong; is that what your evidence is?
A Well, even further, that he thought he was doing right by saving them from a death that was of a particularly horrible kind.
…
Q During the course of that evening he rang triple 0 and reported a murder/suicide. Don't you think that that of itself is some indication that he knew that what he had done was wrong?
A Well, I suppose, murder being intrinsically wrong, I suppose he knew that. But I think you can do the right thing in the sense of notifying the authorities, and I think he could quite easily have done that while still maintaining the delusion that what he had done was because he had AIDS and had infected the family."
53 Later in cross-examination Dr Milton said:
"A … The whole thing comes from a feeling of guilt, and it was from guilt that he killed them. But I think that he killed them to save them, rather than because he hated them or for some other reason."
54 Earlier, the following question had been asked:
"Q Just on this question of murder, he used that expression a number of times during the course of the interview that he had with the police, and he made it - well, I will ask you this: In relation to the suggestion that he murdered his family, I think at one stage he indicated that he murdered them some time ago by giving them the AIDS virus?
A Yes, he had said that.
Q Now in saying that, isn't that an acknowledgment by him that he had some capacity at that time to distinguish between right and wrong when he used the word, 'murdering' them?
A I think his whole thinking was in terms of himself having done wrong by infecting them. I think what he sought to do was to at least repair some of the damage he had done, in this very crazy way of taking their lives."
55 Towards the end of cross-examination Dr Milton said:
"Q It is possible, isn't it, or do you acknowledge that it is possible, that he is not telling the truth at all about his belief?
A Well, I think it is possible. It certainly didn't fit with my impression of him, but it is always possible."
56 After that Dr Milton was asked:
"Q Mr Wilson, who was a colleague, a work colleague of the accused, spoke with the accused on the evening of these events at around about 8 or 8.30 in the evening, and during the course of the conversation that he had with the accused he said that the accused at one point was extremely happy with some news that had been passed on to him.
Mr Wilson also expressed the view that the accused appeared to be in good spirits when he rang him at that time of the evening. What I am suggesting, doctor, is that there is a possibility, is there not, that after that phone call something happened that led the accused to take his wife's life and the life of his daughter and stab the third, which may not necessarily be associated with any belief that he held as to whether or not he had AIDS?
…
[A] Yes, it is possible, and I'd be happy to consider any suggested possibilities that might have caused him to do that."
57 In relation to the letter, Dr Milton was cross-examined as follows:
"Q He wrote as well, didn't he, that because he had done that he was going to go to hell and they were going to go to heaven. Doesn't that as well indicate that he had the capacity at least to reason between right and wrong when he wrote those letters?
A Well --
Q Given the fact - I'm sorry to interrupt you - but he is saying, is he not, that he is going to hell because he has done the wrong thing by them, giving them the disease, and he is going to hell because of having done that?
A I think that could be suggested. The whole thing comes from a feeling of guilt, and it was from guilt that he killed them. But I think that he killed them to save them, rather than because he hated them or for some other reason."
58 Dr Nielssen was the second of the experts called by the Appellant. He gave evidence-in-chief as follows:
"Q What did you think then as far as his state of mind was concerned?
A Because of the state of mind, which I have diagnosed as a severe depressive illness with a delusional belief, he seized upon that comment and became convinced he was about to die of AIDS.
…
Q Did he indicate anything to you about hypochondriacal illnesses or anything of that kind?
A Yes, he said he had always been very anxious about his health and during childhood and adolescence he felt concerned if he cut himself he would bleed to death, and he remembered lying in bed and hoping he would not have leukemia or some such illness. I elicited a history about his earlier health.
Q Did you form a view he may have been deceiving you in his presentation at the time?
A That was certainly a question that was put to the case conference where Mr Cheatham was presented on 19 March this year, and perhaps it was one of the reasons why Dr Corcos presented him to the meeting. But it was both my view, and I had the opportunity to interview him and test his delusional beliefs, and also I think the unanimous view of psychiatrists present he was not fabricating his symptoms.
Q Did you form a view in respect of this man, so far as it related to his actions on the night of 5 March 1998?
A Yes, well I diagnosed him as suffering from melancholic depression.
Q What does that mean in simple terms?
A It is a very severe form of depression where one is more susceptible to developing depressive delusions.
Q What is a depression as such, what do you mean by that?
A I think depression is an illness where the sufferer is conscious, they have a capacity to be aware of their feelings, of severe unhappiness and sadness. Also, they have a morbid view on themselves, their future and their surroundings.
Q Taking that in conjunction with the word 'melancholic', could you explain that?
A Melancholic features are a biological feature, interrupted sleep, loss of appetite, loss of weight, loss of energy, and also of feelings of great guilt or something terrible about to happen or having happened. Also a generally more severe syndrome of depression.
Q Do you know whether this man was suffering any of those symptoms?
A Yes, I think he suffered from all of them, to a greater or lesser extent. He certainly reported the physical symptoms of severe depression that he formed, a significant weight loss, interrupted sleep and lack of energy. I believe the delusional belief that he developed was a mid congruent depressive delusion.
Q Can you just explain that in simple terms?
A He was depressed and hence the delusion he had, that he had a terminal illness, was consistent with that depressed mood.
Q That applied to himself, the delusion applied to himself in terms of his own infection. Was there a significant delusion?
A Yes, I think it expanded to include the belief regarding his wife and children.
…
Q In your discussions with him what did you believe yourself that he was trying to indicate to you as to the deaths, what was he saying to you?
A His explanation that killing his wife and children was to save them from the consequences both of his own death, which would have been that other people would have known that he died of AIDS and realised also they had AIDS. Also from the suffering they would experience when they inevitably became terminally ill.
Q Was there a combination of factors that applied to his states of depression?
A Yes, I thought he had his pre-morbid personality mood and was vulnerable to depression, and also to developing this particular depressive delusion, and in this case I agree with Dr Milton, he had a hypochondriacal tendency.
…
Q Do you say that was a characteristic of his personality?
A Yes.
Q That goes hand and glove with the elexithymic function?
A When he was depressed, when he was younger he did not seek any help so that goes hand in hand with that.
Q Drawing attention to those features you have explained to the jury, what is your opinion as to the state of mind of the accused at the time when he took the life of his wife and his child and wounded his daughter on the night of 5 March this year?
A I believe severely mentally ill, and had a psychotic illness, and that is to say he had lost touch with reality and he had the fixed false belief he was going to die from AIDS, and also his family would.
Q Is that a disease of the mind?
A Yes, I think that is well recognised as a disease of the mind in the legal sense.
…
Q Did Mr Cheatham understand the nature of the quality of his acts?
A Yes, I think that is fairly clear in the evidence of what he did do, that he clearly understood that he was stabbing his wife and children.
Q Are you able to say whether or not he realised his actions were wrong?
A I believe that he was capable of seeing that his actions were wrong in the sense that they were against the law, but I believe in his delusional state he did not know his actions were morally wrong as he believed he was saving his wife and children from a worse fate."
59 In cross-examination of Dr Nielssen, the following exchange occurred:
"Q He obviously accepted, when he used the word 'murder' in the context of passing on this virus, he obviously accepted that he had done the wrong thing because he said he would go to hell for doing it. Later in the interview when shown the knife he said that was the knife that he used to murder his wife and daughter.
What I am asking you, isn't feasible that, in using the word 'murder' on that occasion, that he knew that what he did was wrong in a moral sense; not only just in the legal sense, but in a moral sense?
A Yes, well, I think you have pointed out what I would argue that he believed he had already killed them through causing them to become infected with HIV. And again, I don't believe that he set out to do that in advance, or actually believe that at the time he got married. I think he developed that delusional belief relatively recently out of a hypochondriacal concern. But I think that the time that he thought that he had killed them was prior to actually causing, if you like, their immediate deaths by stabbing them.