REGINA v CHEATHAM

COUNSEL : J Nicholson SC (Appellant) M Grogan (Crown) SOLICITORS : Sydney Regional Aboriginal Legal Service (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - defences - insanity - second limb of the M'Naghten test - CRIMINAL LAW - defences - diminished responsibility - requirement on trial judge to direct jury - Crimes Act 1900, s23A - CRIMINAL LAW - conduct of trial judge - no excessive intervention - CRIMINAL LAW - no fresh evidence Crimes Act 1900 LEGISLATION CITED : Crimes Amendment (Diminished Responsibility) Act 1997 Criminal Procedure Act 1986 Galea v Galea (1990) 19 NSWLR 263 Gallagher v The Queen (1986) 160 CLR 392 GIO (NSW) v Glasscock (1991) 13 MVR 521 Mickleberg v The Queen (1988-1989) 167 CLR 259 Pemble v The Queen (1971) 124 CLR 107 R v Ayoub [1984] 2 NSWLR 511 R v Birks (1990) 19 NSWLR 677 CASES CITED: R v Clewer (1953) 37 Cr App R 37 R v Gomaa (Supreme Court of NSW, Badgery-Parker J, 27 April 1994, unreported) R v Hemsley (Supreme Court of NSW, Court of Criminal Appeal, 8 December 1995, unreported) R v Ion (1996) 89 A Crim R 81 R v Wilson (Supreme Court of NSW, Court of Criminal Appeal, 7 March 1995, unreported) Stapleton v The Queen (1952) 86 CLR 358 The King v Porter (1933) 55 CLR 182 Yuill v Yuill [1945] 1 All ER 183 DECISION : Appeal allowed; a new trial to be held.

SPIGELMAN CJ JAMES J SPERLING J

Facts The Appellant killed his wife and older daughter and attempted also to kill his younger daughter. At his trial the only issue was the defence of insanity. The jury returned verdicts of guilty for the two murder charges and the one attempted murder charge. The Appellant appealed arguing that the trial judge, Newman J, did not explain to the jury adequately the second limb of the M'Naghten test, that his Honour was obliged to leave the question of diminished responsibility to the jury and that his Honour's questioning of one of the expert witnesses deprived the Appellant of a fair trial. It was also argued that the verdicts could not be supported by the evidence and, alternatively, that they should be quashed in the light of fresh evidence.

Held (per Spigelman CJ, James and Sperling JJ agreeing) a Insanity Defence 1 The evidence that the Appellant was suffering from a "disease of the mind" was before the jury with a degree of clarity that did not call for repetition by the trial judge. His Honour's direction on the second limb of the M'Naghten test was correct. The King v Porter (1933) 55 CLR 182, Stapleton v The Queen (1952) 86 CLR 358, R v Gomaa (Supreme Court of NSW, Badgery-Parker J, 27 April 1994, unreported) discussed. b Intervention 2 The content and extent of the questioning by his Honour did not lead to a miscarriage of justice. The express direction to the jury to disregard any opinion of the trial judge that the questioning may have revealed was, in the circumstances, adequate. c Diminished Responsibility 3 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. 4 A finding of diminished responsibility was reasonably open on the evidence. Although it was not argued by the Appellant at trial, Newman J should have directed the jury in this regard. His Honour's failure to do so constituted a miscarriage of justice. Pemble v The Queen (1971) 124 CLR 107, R v Ayoub [1984] 2 NSWLR 511 applied.

d Unreasonable Verdict 5 On the evidence before the jury, it was open for it to reject the defence of insanity.

e Fresh Evidence 6 The fresh evidence did not differ from the existing evidence to a material degree. There is no reason to conclude that if it were placed before a jury the jury would acquit or entertain a reasonable doubt about the guilt of the Appellant. Gallagher v The Queen (1986) 160 CLR 392, Mickleberg v The Queen (1988-1989) 167 CLR 259, R v Hemsley (Supreme Court of NSW, Court of Criminal Appeal, 8 December 1995, unreported), R v Ion (1996) 89 A Crim R 81 approved.

Orders 1 Appeal allowed. 2 A new trial to be held.

SPIGELMAN CJ JAMES J SPERLING J

SPIGELMAN CJ: Introduction 1 In the late evening of 5 March, or in the early hours of 6 March, 1998, the Appellant formed the intention to kill his family. The Appellant's case was that he believed that he was dying of AIDS, that he had infected his wife and children who, as a consequence, would also die. He said that he wrote letters to his mother and to his father-in-law and then took a knife from the kitchen and stabbed his sleeping wife, Sandra Cheatham, six times. He then went to the bedroom of his three year old daughter, Briahna, and stabbed her twenty times before wrapping her body in a towel and placing her on the bed next to his dead wife. He then went to the cot of his three month old daughter, Tahnee, and stabbed her twice in an unsuccessful attempt to kill her also. 2 The Appellant then made a 000 call reporting a "murder/suicide" at the family home at 25 Pacific Highway, Ourimbah. He stabbed himself a number of times and hit himself on the head with a hammer in an apparent attempt to commit suicide. He was located some time later hiding in a nearby garden shed, at which time he admitted to the two murders and the attempted murder. 3 His trial was conducted before Newman J and a jury. The only issue in the trial was the defence of insanity. A number of witnesses were called to give evidence about the Appellant's conduct, particularly in the immediate aftermath of the killings. Two psychiatrists, Dr Milton and Dr Nielssen were called to give evidence for the Appellant in order to establish the defence of insanity. Dr Strum was called in reply by the Crown. 4 The jury returned with verdicts of guilty in respects of each count: two murders and one attempted murder. 5 Newman J imposed the following sentences:

(a) For the murder of Sandra Cheatham, a minimum term of 16 years and an additional term of 8 years;

(b) For the murder of Briahna Cheatham, a fixed term of 16 years;

(c) For the attempted murder of Tahnee Cheatham, a fixed term of 12 years.

Grounds of Appeal 6 By an Amended Notice of Appeal, the Appellant appeals on the following grounds: "(1) His Honour failed to embark upon an adequate explanation of the criteria, which satisfies the second limb of the [M'Naghten] test, or to embark upon an adequate examination of its application to the special facts of this case. Particulars (i) His Honour failed to draw the jury's attention to the contest between the Crown and defence as to whether the Applicant was suffering from a 'disease' of the mind.

(ii) In the circumstances of this case, His Honours exposition of what was required by the defence to satisfy the 'Second Limb' of [M'Naghten] was inadequate and misleading.

(iii) His Honour failed to highlight that the wrongness being spoken of was of a 'moral' quality rather that of a 'legal obligation'. (2) His Honour's cross-examination of Dr. Milton in the circumstances of this case deprived the Applicant of a fair trial. (3) His Honour, in the circumstances of this case, was obliged to leave to the jury the question of diminished responsibility. (4) [This ground was withdrawn during submissions.] (5) The verdict is unreasonable and cannot be supported by the evidence. (6) In light of the new/fresh evidence, the verdict of guilty should be quashed."

Ground 1 7 Counsel for the Appellant advanced four propositions concerning the adequacy of his Honour's directions to the jury:

(i) His Honour did not identify with sufficient specificity, those portions of the expert evidence which were to the effect that the Appellant suffered from a disease of the mind.

(ii) His Honour did not correctly direct the jury on the second limb of the M'Naghten test in that he stated the tested in too absolute terms.

(iii) His Honour erred by referring to an "ordinary reasonable person" standard.

(iv) His Honour should have said that the "wrongness" referred to in the test was of a "moral" quality, rather than a "legal" quality. 8 Newman J told the jury that punishing people for crimes that they commit both deters others from committing similar crimes and punishes the particular person for his or her wrongdoing. His Honour said that there would be little deterrent effect, and there would be little purpose in punishing somebody, if the person was obviously mentally ill at the time of the conduct which was alleged to constitute a criminal offence. His Honour then directed the jury as follows: "It is for those reasons that a special verdict of not guilty by reason of mental illness is available. Your inquiry concerns a consideration of the evidence as it relates to the actual moments the alleged offences were committed. What you are looking to see is whether or not at that time the state of mind of the accused involved a defect of reason from disease of the mind. Mere excitability, lack of self control or impulsiveness are quite different things from a defect of reason due to disease of the mind. What you are concerned with here is a disorder of understanding and reasoning or a disorder of the functioning of the mind. If you are satisfied that there was such a defect of reason from disease of the mind, then to constitute the defence it must be of such character as either - and these are alternatives, members of the jury, not conjunctives; that is, they are separate - either it prevented the accused from appreciating the nature and the quality of the act he was doing, or to prevent him knowing that what he was doing was wrong. There are therefore two limbs, either of which is sufficient to establish the defence; that is, the accused did not appreciate the nature and quality of his act, or, if he did have that knowledge, that he did not know it was wrong." 9 His Honour noted that no issue was raised at trial that the Appellant did not know the nature and quality of his act. The question for the jury to decide was whether the Appellant did not know that the acts he committed were wrong and that that lack of comprehension was due to a "disease of the mind". His Honour said to the jury: "It is the second limb which has been raised in the accused's defence. And as to that second limb, the question is whether by reason of the disease of the mind he was disabled from knowing that it was a wrong act to commit, that is the stabbing, in the sense that an ordinary, reasonable person understands right and wrong. I repeat that - in the sense that an ordinary, reasonable person understands right and wrong. That is, whether or not he was disabled from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing." 10 The trial commenced on Monday 16 November 1998. Evidence concluded on the Thursday. Counsel addressed on the Friday. His Honour summed up on Monday 23 November 1998. The submission that his Honour did not adequately identify the evidence on "disease of the mind" must be understood in that context. The jury could not have been in any doubt that the Appellant's experts had each identified such a disease. Counsel for the Appellant at the trial had summarised the evidence in his submissions on the Friday. He had said that Dr Milton was of the opinion that the Appellant had a hypochondriacal delusion which was a disease of the mind. Counsel had said that Dr Nielssen diagnosed the Appellant as suffering a melancholic depression of a severe kind which was a psychiatric illness and a disease of the mind. 11 The evidence to the effect that the Appellant was suffering a disease of the mind was before the jury with a degree of clarity that did not call for repetition by the trial judge. 12 The Appellant's submissions with respect to the second limb focussed on his Honour's choice of terminology. His Honour employed two formulations as to the requisite effect of as disease of the mind, if such existed: · "it prevented the accused … knowing that what he was doing was wrong" · he was disabled from knowing that it was a wrong act to commit … he was disabled from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing". 13 The Appellant submitted that the words used - "prevented" and "disabled" - were too absolute. He submitted that the defence was not a "total absence of knowledge of wrongness", but "difficulty with the reasoning process". A mere "difficulty" with reasoning process is far too low a standard. Nevertheless, it is necessary to consider whether his Honour directed the jury to apply an inappropriate test. 14 The most commonly cited decision is that of Dixon J in The King v Porter (1933) 55 CLR 182 where at 189, his Honour postulated the test in terms of whether: "… his disease or disorder or disturbance of the mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. … The question is whether he was able to appreciate the wrongness of the particular act …." 15 His Honour repeated the test in terms of "incapable of" and "quite incapable of" later in this same passage. 16 The joint judgment of the Court in Stapleton v The Queen (1952) 86 CLR 358 at 367 also employed the formulation "incapable of reasoning". I note that in a careful review of the authorities in R v Gomaa (Supreme Court of NSW, Badgery-Parker J, 27 April 1994, unreported), Badgery-Parker J at 29 referred to "incapacity". 17 These three formulations of Dixon J which I have quoted - "unable to appreciate", "quite incapable of appreciating" and "able to appreciate" - as well as the subsequent formulation, "incapable", in Stapleton, appear to me to have the same degree of "absoluteness", to use the phrase of counsel for the Appellant, as the formulations employed by his Honour - "prevented" and "disabled". I would reject this submission. 18 The third submission under this heading referred to his Honour's use of the phrase "ordinary reasonable person" in the passage quoted above with respect to knowledge of right and wrong. It was submitted that the introduction of the word "reasonable" may have invoked an inappropriate standard. I do not accept that this is the case. Indeed in Porter itself the two words were used interchangeably in the following passage at 190: "What is meant by wrong is wrong having regard to the standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards … ." (Emphasis added) 19 The fourth submission was that his Honour failed to state that the "wrongness" being spoken of was "moral wrongness", not "legal wrongness". The occasion for drawing this distinction was said to arise from the circumstance that Dr Nielssen gave evidence that the Appellant may have known that his actions were against the law but that he did not know they were morally wrong. This led the Crown to submit in its address: "… I suggest it is not a very far jump at all to get from a belief that something was illegal to a belief or a knowledge that it was wrong and morally wrong. The distinction between illegal and morally wrong, I suggest to you, is a very fine distinction indeed." 20 Nothing in the circumstances of the trial suggest any likelihood that the jury would have applied a test of "wrong at law". Counsel appearing for the Appellant did not request an express direction, even though the distinction was the subject of legal submissions before his Honour. In my opinion, the jury was not left with any uncertainty as to the nature of the wrong it had to consider. The failure of his Honour to draw the distinction contended for did not lead to a miscarriage of justice. 21 Ground 1 should be rejected.

Ground 2 22 This ground is based on a series of questions which his Honour directed to Dr Milton. The Appellant submitted that this questioning by his Honour demonstrated to the jury that his Honour was taking an adverse view of the doctor's evidence. In particular, counsel for the Appellant said that the effect, from the jury's point of view, was that his Honour said four times that the answers of the Appellant after the killing were consistent with the Appellant knowing that what he was doing was wrong. Reference was made to the following questions by Newman J. 23 His Honour first asked: "Q But doctor, you say the police officer was outraged. Why do you make that comment? A Because I think it is a natural thing to be if you find a mother and a child dead and you are going to be outraged with the person that has done it, and you may well challenge them in some fashion and say, 'No, it is not your right to do that'.

Q The police officer has a duty to make inquiries; does not do it out of outrage, doctor? A He is still a human being, and that is a very difficult situation for anybody, your Honour." 24 Subsequently his Honour asked: "Q Doctor, why did you transpose the answer? What was recorded in evidence was, 'I have something wrong, I have killed my family and I have got AIDS'. Why did you transpose, put the AIDS first and the killing the family second? A I haven't got the statement before me, your Honour. I have been going from the evidence. There are so many bundles here, I didn't bring them up with me." 25 Finally, in the passage primarily relied upon, his Honour asked the following: "Q Just to clear up a couple of things up in my own mind, doctor. As I understand it your diagnosis is that the accused at the time when these events occurred was suffering from a hypochondriacal delusion? A Yes.

Q As I understand it you say that that hypochondriacal delusion was such that at the time of the commission of the act he could not distinguish right from wrong and in fact not only did he not believe what he was doing was wrong, but in fact had a belief what he was doing was right? A Yes.

Q Am I quite correctly stating your view? A Yes your Honour.

Q Is it possible that a person could be suffering from a hypochondriacal delusion of the very type that this man was suffering from, which I understand to be that he was suffering from AIDS and that somehow he had transmitted that condition to his wife and children. That is the delusion, is it not? A That is the delusion.

Q And at the same time of suffering from that delusion can distinguish right from wrong in committing the act? A It is certainly possible.

Q I mean the delusion itself does not completely inhibit he ability of a human being to distinguish between right and wrong? A Not necessarily.

Q Making the assumption that he was suffering from hypochondriacal delusion, is it relevant to the consideration of whether or not he knew what he was doing was right or wrong in terms of the way you thought it was right rather than wrong? A Yes.

Q Did you take consideration of the statements he made immediately after the event? A Yes, I think all the statements are important, your Honour, and I have attempted to take notice of them all as a whole.

Q All right. Assume to an ambulance officer by the name of Mr Vince, when Mr Vince was trying to treat him after he was found, and he and the other ambulance officer, a fellow called Ferguson, were trying to put an oxygen mask over his nose and the accused said, 'I don't want it, I don't deserve it, and I can refuse it if I want'; the fact he made the statement 'I can refuse it if I want' is a valid statement as legally right, is it not? A I suppose it is in keeping with today's conditions, that people talk about such things.

Q You can assume Mr Vince then said, 'Come on mate, just let us do our job' to which the accused replied, 'No, I don't deserve it'. Then Vince said, 'Why?' and the answer was, 'I have just wiped out my whole family'. Now, is that answer consistent with the accused being aware of what he had just done was wrong? A I think it is consistent with him not wanting to live because he felt he was such a dreadful person for what he had done. I think that is true, I think that must be taken in the context of the delusion as I have hypothesised as a whole.

Q But it is consistent with him being aware of the distinction between right and wrong at the time, is it not? A Yes.

Q The other ambulance officer, Mr Ferguson, says that he had this conversation with him, having found out his name, 'Just lift your arm up so we can clean your injuries'. The response given, 'I don't want treatment as I have just stabbed my family'. Then Mr Ferguson says - and there was no challenge as to this - 'We will get these wounds cleaned up', and his response was, 'I just killed my wife and daughters'. Again, is that response consistent with the accused being aware of the distinction between right and wrong at the time he committed the offence? A It is, your Honour. I think you have to see it in the context of him wanting to die, as a genuine statement of wanting to die and regarding himself as a person without right or value to live.

Q You have already been asked about what he said to Superintendent Moore, 'I have done something wrong, I have killed by family and I have got AIDS'. Again, is that consistent with him being aware that he was aware of the distinction between right and wrong? A It is the awareness of him being a terrible person, as he saw himself. Was that because he had just killed them, in some ways yes, because he said so, or is it a pattern that had been happening over some weeks, yes, that applies." 26 In the course of both his opening remarks to the jury and in his summing up, his Honour indicated that the jury should disregard any views it may think he expressed during the course of the trial. He emphasised that all matters of fact were for the jury alone. The Appellant submitted that these comments did not cure the injustice perpetrated by the questioning. 27 At the trial, there was no objection to his Honour's questions. Nor was there an application for a discharge. Nor was there any request for a redirection. 28 It is well established that intervention by the trial judge may deprive an accused of a fair trial. However, that requires a degree of intervention of a different order from that set out above. (See eg. R v Clever (1953) 37 Cr App R 37; R v Wilson (Supreme Court of NSW, Court of Criminal Appeal, 7 March 1995, unreported); Galea v Galea (1990) 19 NSWLR 263). On the other hand it is appropriate for a judge to seek to elucidate the evidence. (See eg. Yuill v Yuill [1945] 1 All ER 183 at 185-186; GIO (NSW) v Glasscock (1991) 13 MVR 521 at 529). 29 The questions to which objection is taken in this case did identify an aspect of the evidence in a way which was unfavourable to the defence case. In doing so the jury may have formed a view as to the judge's own opinion. His Honour did go beyond merely clarifying the evidence. The line of questioning would best have been left to cross-examination by the Crown. I note that the last, longest and most pertinent passage of questioning by his Honour occurred at the end of the Crown's cross-examination, although it is not entirely clear from the transcript that the Crown had in fact concluded before his Honour asked the series of questions. 30 Neither the extent nor the content of his Honour's questions, in my opinion, warrant intervention by this Court. I do not accept that the Appellant was deprived of a fair trial. Insofar as the questioning revealed his Honour's own opinion, the express direction to the jury to disregard any such opinion was, in the circumstances, adequate. Insofar as his Honour elicited additional evidence, it was pertinent and in a narrow compass and was not of a character, either in extent or content, to constitute a miscarriage of justice.

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.

As to the use of the term 'murder', I mean, I think that I would interpret that to be in the colloquial sense, and bearing in mind too that he was severely depressed, and a characteristic of severe depression is pathological guilt. So I could understand him painting himself in the worst possible light." 60 Dr Milton was of the view that the only difference between his own approach to the condition of the Appellant and that of Dr Nielssen was that they were looking at the same thing "from different angles and therefore [giving] it slightly different names." 61 In the context of Ground 5, I will set out my reasons for holding that it was open to the jury to reject the Appellant's mental illness defence. Some of those reasons may also apply to a defence of diminished responsibility. This Court cannot know which of the various bases for the jury's decision caused the jury to reach its conclusion. 62 In many, if not most cases, a defence of mental illness will result in a body of evidence being adduced which would support a finding of substantial impairment under s23A. This was the case here. The evidence of Dr Milton and Dr Nielssen would, if accepted by the jury, establish the basis of a finding of this character even though, as I indicate below, the jury did not accept the proposition that the Appellant was unable to distinguish right from wrong. 63 It is unnecessary to consider the range of alternative routes to a substantial impairment finding which would be consistent with the jury's rejection of the mental illness defence. A finding of diminished responsibility was, in my opinion, reasonably open on the evidence. As in Pemble the Appellant has lost the opportunity of having his crime reduced from murder too manslaughter. In my opinion, the loss of this opportunity constitutes a miscarriage of justice. I would allow the appeal on this ground.

Ground 5 64 Ground 5 was not abandoned, but only faintly pressed. These were a number of alternative bases on which the jury was entitled to reach the conclusion it reached. 65 It was submitted that the evidence of Dr Milton and Dr Nielssen should have been accepted and in the light of their evidence the verdict could not be supported. Dr Strum was a psychiatrist called by the Crown. He gave evidence to the contrary of the Appellant's experts. It was open to the jury to accept that evidence. 66 Alternatively, it was open to the jury to reject in its entirety the Appellant's case that he had a belief that he had AIDS, that he had infected his family and that he killed them and attempted suicide for that reason. 67 The jury had before it evidence from a work colleague of the Appellant's, who was probably the last person to speak to him before the killings on the fatal evening. He testified that the Appellant appeared to be in good spirits and that they spoke for up to 45 minutes about work tasks for the following day and the roster for the following week. With respect to a particular development at work, the Appellant's response was described as "extremely happy". 68 It was also open to the jury to take into account two other features of the events as inconsistent with the Appellant's case. 69 First, the nature of the attacks, particularly on the deceased daughter - twenty stab wounds were inflicted on her - indicating a ferocity that was not suggestive of a mercy killing. 70 Secondly, the jury may well have concluded that anyone capable of so ferocious an attack on his family would not have failed in an attempt at suicide, if that is what he wanted to do. 71 No doubt each of these aspects of the evidence could be construed as consistent with a mental disturbance of the requisite character. Each could also be construed as inconsistent with the Appellant's case about his motivations for the killings. The choice was for the jury. 72 The only evidence about the factual substratum of the Appellant's case was self-serving: two letters written on the night - purportedly before the events - the statements to police and ambulance officers after his apprehension and, subsequently, statements to the psychiatrists. There was no evidence of any concern by the Appellant about AIDS prior to the night. There was no evidence of any medical consultations or of any tests. There was no indication of any expression of concern by the Appellant to any person. There was no evidence of distraught conduct on his part prior to the fatal night. 73 It was open to the jury to reject the factual substratum of the Appellant's case, on which the expert opinions were based. 74 Furthermore, the jury had before it other evidence on which it could rely to draw the conclusion, contrary to the Appellant's experts, that the Appellant knew that what he had done was wrong. 75 First, in the call he made to 000, he used the expression "murder/suicide". The word "murder" carries a connotation of wrongful killing, not merely illegal but wrongful. 76 Secondly, when the ambulance officers sought to treat him after the killings, he said to them "I don't deserve it" and "I don't want treatment as I have just stabbed my family". These statements also suggest that he knew he had done something wrong. 77 Thirdly, Superintendent Moore, together with a dog handler, was the first to approach the Appellant at the shed where he was hiding. He gave evidence that the Appellant said to him, in the immediate aftermath of the killings, "I have done something wrong. I have killed my family and have got AIDS." 78 Fourthly, immediately before the killings, the Appellant wrote the two letters I have set out above. The contents are not entirely clear but they do suggest a capacity to distinguish right from wrong. 79 Counsel for the Appellant described these two letters as suicide notes. He submitted that the references to "going to hell" did not indicate that the Appellant knew the difference between right and wrong, because of the use of the past tense in the letter to his mother i.e. "I deserve to go to hell for what I have done to my beautiful girls". The past tense, it was submitted, was a reference to the belief that he had infected his daughters with AIDS, not a reference to the intended killings. 80 The first thing to say about this submission is that the equivalent reference in the letter to his father-in-law does not employ the past tense. He said "I will no doubt go where I belong Hell". 81 The second point arises from the last three sentences in the letter to the father-in-law: "… but I no (sic) Beryl will be calling for them in Heaven. I am sorry that I have done this to your beautiful daughter and grandaughters. May only the Lord find it in his heart to forgive me". 82 The first of these sentences suggest he was referring to the deaths of his family when, in the second sentence, he used the past tense. The third sentence reinforces an inference that he knew what he was doing was wrong. 83 Finally, even on the submissions of Counsel for the Appellant, his client was able to distinguish right from wrong with respect to the act of infecting another person with a disease. Even if the references to "Hell" were references to this fact, the jury were entitled to infer that a person who could distinguish right from wrong in this regard was likely to also be able to do so with respect to killing. 84 In my opinion, it was open to the jury to reject the defence of insanity.

Ground 6 85 The Appellant submitted that, on the basis of fresh evidence, this Court should quash the conviction. The formulation of the appropriate test has been variously expressed: "A significant possibility that the jury, acting reasonably would have acquitted" and "a jury might entertain a reasonable doubt about the guilt". (See Gallagher v The Queen (1986) 160 CLR 392 at 399, 402, 421; Mickleberg v The Queen (1988-1989) 167 CLR 259 at 275, 301-302; R v Hemsley (Supreme Court of NSW, Court of Criminal Appeal, 8 December 1995, unreported) at 4-6 per Hunt CJ at CL). For present purposes, no relevant difference appears to arise from these varying formulations. 86 The additional evidence comprised two psychiatric reports by Dr Yolanda Lucire and Dr Karl Koller. Dr Lucire expressed the opinion: "Mr Cheatham was suffering from a disease of the mind. Specifically this was a major depression with delusions. His delusional belief that he was infected with AIDS and that he had infected his family with AIDS. This was not just a hypochondriacal notion. It was highly emotionally charged, as are delusions, and in fact it was the driving force for his ultimate homicide". 87 She went on to explain that the killings were "driven by delusional belief" which made them "not morally wrong but morally the correct thing to do, the merciful thing to do …". 88 In a further report she said that the Appellant "… was suffering from the most heavy, severe depression that I have seen for a long time". She concluded: "Mr Cheatham had an episode of psychotic depression with delusions which caused him to commit a homicide". 89 Dr Koller expressed the opinion that the Appellant "suffered a deep seated psychotic depression with paranoid hypochondriacal delusion". Further "Mr Cheatham was in a deep psychotic depression. He was mentally ill at the time of the murders. There was a defect of reason and he did not know the quality of his acts and what he was doing was wrong". 90 I note, with respect to this last statement, that the case proceeded at first instance, and in this Court, solely on the second limb. There was a considerable body of evidence, including the two letters, that the Appellant knew "the quality of his acts". 91 The Crown submitted that this evidence is not new. It simply adds two more psychiatrists' opinions to those of the two psychiatrists who gave evidence before the jury. I accept this submission. 92 In my opinion, the reports of Dr Lucire and Dr Koller do not differ from the evidence of Dr Milton and Dr Nielssen to any material degree. There is substantial overlap, if not precise coincidence, of the thrust of the two sets of Appellant's expert opinions. (See R v Ion (1996) 89 A Crim R 81 at 92-95). 93 There is no reason to conclude that if the new evidence was placed before a jury, that there is a "significant possibility" that it would acquit or that it "might entertain a reasonable doubt about the guilt" of the Appellant. 94 In my opinion ground 6 fails.

Conclusion 95 The orders I propose are: 1 Appeal allowed. 2 A new trial to be held.

96 JAMES J: I agree with the judgment of the Chief Justice. 97 SPERLING J: I agree with the orders proposed by the Chief Justice and with his reasons. **********

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