Regina v Cheatham

60461/01 SPIGELMAN CJ BELL J SMART AJ Thursday, 29 August 2002

SMART AJ: Stephen Darcy Cheatham appeals against his convictions for murdering his wife and his elder daughter and his conviction for wounding his younger daughter with intent to murder her. He also seeks leave to appeal against the sentences which he received, namely, 24 years imprisonment for murdering his wife with a non-parole period of 16 years, 16 years imprisonment for the murder of his elder daughter (with no non-parole period fixed) and 12 years imprisonment for wounding with intent to murder his younger daughter (with no non-parole period). All sentences were to date from 6 March 1998 and be served concurrently.

Although the appellant has appealed against his conviction for wounding with intent to murder, none of his grounds of appeal addressed that conviction. At the trial the substance of the Crown case was not in issue. The primary issue was whether the appellant had established upon the balance of probabilities that he lacked criminal responsibility by reason of mental illness. The jury rejected the appellant's plea. The appellant did not challenge the directions which the judge gave on this issue nor their verdict thereon.

The second issue at the trial was whether the appellant had established upon the balance of probabilities the defence of diminished responsibility. The appellant complained that the judge did not adequately direct the jury as to that defence.

The Facts On 5 March 1998 the appellant spent the evening at home with his wife and their two daughters aged respectively 3 years and 3 months. His wife went to bed about 10.30 pm but the appellant stayed up watching television. He wrote two letters, one to his mother and the other to his wife's parents wherein he indicated an intention to kill his family. He went to the main bedroom where his wife was asleep. He hugged her and kissed her, then stabbed her in the back five times with a carving knife. As she rolled over on to her back he stabbed her in her chest. He went to the elder daughter's bedroom and stabbed her a number of times. He picked her up in a towel and took her into the main bedroom and placed her on the double bed next to her mother. He then went to the cot of his younger daughter and stabbed her. He also placed her on the main bed. His wife and his elder daughter died from their wounds. Skilled surgery saved the life of the younger daughter.

The appellant inflicted a number of stab wounds upon himself with the knife and hit himself over the head with a hammer. He left the house and ran with the intention of causing blood to flow, thereby killing himself. At 1.15 am on 6 March 1998 a security guard found the appellant lying on the ground next to a knife in the vicinity of the Ourimbah School of Arts. The appellant was bleeding from lacerations to his throat and stomach and in need of medical attention. The appellant indicated that he did not want medical attention and that he wanted to be left alone to die. He had infected his family with AIDS.

There was a considerable body of evidence as to the appellant's condition in the early hours of 6 March 1998. Two ambulance officers attended the appellant and treated him. The appellant said that he did not want any treatment and refused oxygen. He had wiped out his family. He had AIDS and could not bear his family growing up with this disease. When told his younger daughter was still alive he appeared to be visibly distressed. One of the ambulance officers formed the view that the appellant was rational

The Police Superintendent who attended at 3 Bluegum Lane said that the appellant was very distressed when talking to the police there. He asked to be allowed to die. He had killed his family and had AIDS.

Dr R B Milton, an experienced forensic psychiatrist, saw the appellant at Gosford Hospital 48 hours after the stabbing incident. Dr Milton thought that the appellant suffered from a condition known as hypochondriasis, "that is an excess of pre-occupation with physical disease and a tendency to interpret from very minor symptoms that the patient is suffering a fatal or serious disease." The appellant believed that he had AIDS. When asked how he got AIDS the appellant stated that he had lost weight and got pains under his arms and said, "had a few spots on my tummy, stomach ache, a runny nose." The appellant said that he was too scared to seek medical help. Dr Milton said that the symptoms described by the appellant do not lead to a diagnosis of AIDS, but the appellant believed that in his case they did.

The appellant believed that he had given AIDS to his wife and little girl. His wife was starting to suffer the same symptoms. Dr Milton thought that the appellant suffered from the delusion that he had AIDS. Dr Milton said that a person can wrongly believe that he has a fatal disease, particularly when a disease is much before the public and the person has been hypochondriacal for most of his life. Instances of this can happen from time to time. It is a rare condition. The appellant told Dr Milton that he knew his family would be going to heaven but that he would not.

Dr Milton said that at the time of seeing the appellant on 8 March 1998 the diagnosis was that the appellant "had a delusion that he was suffering a fatal illness and that this was on a background of always having been preoccupied with physical illness and having imagined that he had illnesses when he hadn't." Dr Milton thought that the appellant's acts were a direct consequence of the delusion.

Dr Milton said that after his interview with the appellant on 8 March 1998 he (Milton) concluded that the appellant had intentionally killed his wife and elder daughter and that it was his intention to kill his younger daughter. At the time of the killing the appellant was aware of the nature and quality of his act, that is, he was aware of the consequences of his physical act in stabbing the family. However, the appellant believed that he was putting his wife and daughters out of their misery which he had inflicted. Dr Milton thought that the appellant was unable to reason with a moderate degree of sense and composure as an ordinary person could. Dr Milton stated that the appellant was not able to understand the moral quality of his actions at the time of the killing; the appellant was not capable of reasoning about the morality of what he was doing. Dr Milton thought that the appellant perceived that the pragmatic thing to do was to save his family suffering, that that was the right thing in his view and he acted on that incorrect belief. Dr Milton thought that it was a genuine suicide attempt by the appellant.

On 9 March 1998 the appellant was received into the Long Bay Prison Hospital. Dr Milton had regard to the notes made in that hospital. There were notes of various tests. The drug screen was negative and the HIV test was negative. The preceding alcohol intake test was well within the normal range. The nursing assessment of 9 March 1998 recorded that he told the nurse he had recently lost weight, had pain in the armpits and had had several viral infections. The nurse thought he looked depressed. The diagnosis was delusional disorder and hypochondriasis. It was thought that he presented a severe risk of self harm. On 16 March 1998 he told a staff member that he had many illness when he was younger. Later that day he told a staff member about a young school child who had AIDS and whose family was ostracised and moved to New Zealand. He did not want his wife and children to go through that. He mentioned certain symptoms which his wife had and that made him certain his wife had AIDS. He also gave a history of hypochondria.

On 16 March 1998 the treating doctor recorded that the appellant was not sure whether he had HIV. He was therefore not deluded and there was nothing else to suggest a psychotic process. The doctor seemed uncertain of the diagnosis. On 17 March 1998 a nurse recorded that he did not show any signs of clinical depression or psychosis. A note of 18 March 1998 stated that the appellant had a strongly negative outlook and was psychomotor retarded. These were indicators of depression.

On 19 March 1998 the appellant was seen by Dr O. Neilson, the visiting consultant psychiatrist at the gaol. The appellant told Dr Neilson that he (the appellant) convinced himself that he had AIDS. There was a further note of 19 March 1998 by another psychiatrist that the appellant said he thought of killing his wife and child "so they wouldn't have to go through all that." The appellant said this occurred to him mainly on the night when his wife complained of her armpits. He said that he was dying of HIV, it was slowly killing him. The doctor advised him that the HIV test was negative. He undertook to the doctor that he would not harm himself.

There were further entries during March and April 1998. Dr Milton thought that the picture and pattern revealed by the notes fitted well with those suffering hypochondriasis. The discharge summary from the hospital was delusional disorder, secondary depressed mood and a second diagnosis of hypochondriasis. He had over an extended period been prescribed medication.

After reviewing the hospital notes Dr Milton concluded, "it would appear that the delusion disappeared between the six and seven weeks following the killing." He believed that there was convincing evidence of the delusion being present. The delusion was that he had AIDS and that he was responsible for passing it on to his family and that his family were going to die.

The appellant was re-admitted to the gaol hospital on 9 April 1998 and remained there until 7 May 1998. He was at risk from other inmates. Due to an injury inflicted by another inmate the appellant was re-admitted to the Gaol Hospital on 8 May 1998. On 12 June 1998 the diagnosis was delusional disorder with depression. Continuing medication was prescribed.

Dr Milton wrote: "the hospital records as a whole are consistent with Mr Cheatham having had a delusion he had AIDS, the delusion occurring on a background of a lifetime of road (sic) hypochondriacal beliefs."

Dr Milton said that the pattern of the appellant's behaviour in gaol strengthened his initial diagnosis.

Dr Milton summed up his views thus: (a) at the time of the killing the appellant suffered from a disease of the mind, namely, anxiety and bizarre hypochondriasis. This was a mental illness. (Dr Milton accepted that the bizarre hypochondriasis was present for 10 years much earlier in the appellant's life and then not until the time of the events in question).

(b) The disease of the mind led to a defect of reason wherein the belief he had AIDS, completely unsupported by the facts but maintained because of his hypochondriasis and his difficulty expressing his feelings to others, eventually manifested as a fixed false belief. Acting on this belief he took the lives of his wife and elder daughter and almost killed himself and his younger daughter.

(c) That false belief constituted a defect of reason. While acting on that false belief the appellant did not appreciate that what he did was wrong.

(d) The appellant suffered from an underlying pathological infirmity of the mind. While that disease governed the appellant's faculties he was unable to reason with some moderate degree of calmness as to the moral quality of what he was doing. 20. Dr Milton's attention was directed specifically towards diminished responsibility. As to this he said: (a) The appellant was suffering from an abnormality of the mind. He adopted what he had earlier said about mental illness.

(b) That abnormality of the mind was a delusional belief and came within the category of inherent cause, that is a long lasting condition.

(c) That abnormality substantially impaired the appellant's mental responsibility and affected the appellant's ability to form a rational or sensible judgment as to whether his actions were right or wrong.

(d) That abnormality also affected the appellant's capacity to exercise willpower to control physical actions in accordance with rational or sensible judgment. 21. I move to Dr Milton's cross-examination. The bulk of Dr Milton's evidence was directed towards the issue of lack of criminal responsibility by reason of mental illness.

Dr Milton did not conclude that the appellant had depression. Dr Milton accepted that it was possible that a person who makes a choice to do something while he is operating under a hypochondriacal delusion may still appreciate that what he is doing is wrong. Dr Milton agreed that it was possible that the appellant knew that although he was killing his family for the reason that he may have been saving them from suffering further down the track he also knew that the mercy killing in those circumstances was still the wrong thing to do. Dr Milton thought that these possibilities did not apply in the present case.

Dr Milton accepted that the letter the appellant wrote to "I and family" and what he said to the ambulance officers could be interpreted that he knew that what he was going to do or had done was wrong. Dr Milton did not agree with such an interpretation. He thought that the wrong to which the appellant referred when he used that word was giving his family AIDS. Attention was also directed to some of the appellant's answers in his record of interview, namely, Q & A 36, 47, 204, 205 and 206. The answers were open to the interpretation that he knew that he had no right to take the lives of his family and hence he knew that what he was doing was wrong. He also said, "I decided to murder my family." This was capable of the interpretation in the context that although he had a reason for doing what he was going to do, he still knew it was wrong.

Turning specifically to the aspect of diminished responsibility Dr Milton confirmed in cross-examination that if it was not accepted that the appellant was suffering from a mental illness nevertheless the appellant was suffering from an abnormality of the mind which diminished his capacity to distinguish between right and wrong but not to the same degree as in the case of mental illness. The abnormality of mind was still the hypochondriasis. Dr Milton said that particularly if the appellant formed a delusion from his hypochondriasis an abnormality of the mind would diminish his ability to control his actions. Dr Milton also stated that when hypochondriasis is well established and focused on a particular disease it alters the person's ability to determine what they do. Dr Milton agreed that the appellant had thought about what he was going to do and carried it out with very deliberate actions. Dr Milton agreed that the appellant exhibited control - he formed an intention and put that intention largely into effect.

In re-examination Dr Milton said that the conviction with which the appellant spoke to him within three days of the killing was profound.

Dr O. Neilson, an experienced forensic psychiatrist, said that on 19 March 1998 he interviewed the appellant at the prison hospital.. He was a case study. His then treating psychiatrist presented the appellant's case and the appellant was interviewed in front of the treating psychiatrist, psychiatric trainees (about 5 or 6) and nursing staff. The diagnosis of the appellant was discussed. Dr Neilson said that at the time he concluded that the appellant had a severe depressive illness and that he had the delusional belief that he was terminally ill with AIDS and had infected his wife and children with AIDS.. These were also the findings of the committee during the case conference.

Dr Neilson said that the appellant stated that in the months before the events he was dying from AIDS and that he had infected his wife and children. His belief stemmed from a number of physical symptoms including diarrhoea, weight loss, pains in his armpits and generally feeling unwell. He assumed he had contracted AIDS from a number of sexual contacts before he met his wife. He had a urinary tract infection. He did not return for follow-up tests some three months later.

The appellant told Dr Neilson that his belief that he had AIDS became stronger when he developed physical symptoms. Several weeks before the killings he consulted a telephone counselling service. When he asked what would happen if the treatments did not work he was told that death follows. He ceased the telephone conversation at this point and became convinced that he was about to die from AIDS. The appellant believed he had infected his wife through sexual contact and that the children had become infected through breast feeding.

When his newly born baby developed a cough he assumed it was AIDS. His wife also had diarrhoea for which she was treated at one stage with antibiotics. On the night before the killings he became convinced his wife had developed AIDS when she told him she had pain in her armpits. He had also experienced pain in the armpits and felt a lump there which he was concerned was a symptom of AIDS. He felt terribly guilty because he believed that he had "killed my family". He thought he had a more advanced phase of the disease and would die before his family. He did not see how his wife would be able to support herself and the children once he died. He believed they would die slowly and painfully and be ostracised once it emerged he had died with AIDS.

Dr Neilson stated that the appellant gave him a history consistent with symptoms of depression. Dr Neilson detailed these. The appellant said that he felt so guilty about what he had done he could not discuss his problems. When asked why he could not just have taken his own life and why he had to kill his family he replied, "I could not bear to see them suffer for what I'd done and I thought I had already killed them." The appellant told of his pre-occupation with health matters during his childhood and praying that he did not develop incurable illnesses.

In the acute psychiatric ward of the prison hospital he was treated with anti-depressant medication and anti-psychotic medication for delusional beliefs. There were two subsequent admissions to the psychiatric ward of the prison hospital. The third one was because of the relapse of depression and the fear that the appellant might commit suicide.

Dr Neilson said that the appellant was a little better after treatment for two to three weeks. That was entirely consistent with the usual course of treatment. He continued to respond to treatment but there was also his very severe grief.

Dr Neilson had read the transcript of the police recorded interview and watched the video recording. He said that the appellant's appearance during the video was entirely consistent with the presence of melancholic depression both in what he said and his outward appearance and that he gave a spontaneous account of his fixed beliefs at that time. Dr Neilson thought that the appellant was suffering from a fixed delusion at the time of the killings. The objective evidence was entirely consistent with the history elicited.

Dr Neilson thought that it was the appellant's delusional belief that caused him to act in the way he did. It was a fixed false belief and his motivation was that he thought he was killing his wife and children as an altruistic act to save them from further suffering. Dr Neilson thought that this fixed false belief was of recent origin prior to the killings.

Dr Neilson's diagnosis was of melancholic depression, that the appellant became depressed and as a result of being depressed developed the mood congruent delusional belief. The alternative diagnosis which he considered was a delusional disorder per se with depression being a consequence of having a delusion. The delusional belief was of a hypochondriacal nature. On he night in question it was the delusional belief that caused the appellant to act as he did.

At T215 this passage appears: "Q. "If it was suggested that your opinion and Dr Milton's opinion are different in the sense that the emphasis leading up to the delusional belief is different, your emphasis being on depression and his emphasis being more on this inherent condition, what do you say about that? A. Well, it's only a slight diversion of opinion because we both agree that he had a delusional belief on his health. I saw it as being secondary to depression because it became delusional in the presence of reported symptoms of major depression, and also when I found him he was pervasively depressed but it's - we both agree that he did have a hypochondriacal delusional belief. " 37. Dr Neilson said that his ultimate diagnosis that at the time of the killings the appellant was suffering a delusional belief did not depend on his finding that the appellant was suffering depression. The core feature of the disease of the mind was the delusional belief. That delusional belief was in evidence some weeks after the killings and the appellant responded to treatment in the expected way. That belief was apparent in the recorded video interview and in the case conference.

38. Dr Neilson said that the appellant was not able to understand in a moral sense that what he was doing was wrong. Because of his delusional belief he believed that what he was doing was right. The appellant's reason was affected by his fixed false beliefs and he could not see the alternative possibilities. The appellant was not able to reason with a moderate degree of sense and composure as a normal person would.

39. At the end of his examination in chief Dr Neilson's attention was directed to the issue of diminished responsibility. He said that the delusional belief certainly produced an abnormality of the mind. It was an inherent cause. The abnormality became of pathological intensity and therefore a disease in the short time before the killings. That abnormality impacted on his ability to form a rational and sensible judgment as to whether his actions were right or wrong. Then this passage of evidence appears: "Q. Did that abnormality of the mind affect his capacity to exercise willpower to control his physical actions in accordance with rationale or sensible judgment? A. Not really. I mean he was able to have control of his physical actions but clearly his judgment was grossly impaired."
40. Dr Neilson did not agree with Dr Strum's view that the appellant merely had an over-valued idea. Dr Neilson understood that to be "something on the spectrum from a belief that we share with most people through to a false belief, and an overvalued idea might be an opinion that perhaps other people did not agree with but one was capable of considering the alternative views whereas a delusional belief is fixed and the person isn't able to consider other possibilities."

41. In cross-examination Dr Neilson adhered to his view that on 19 March 1998 the appellant's belief as to having AIDS was of delusional intensity. Dr Neilson agreed that when on 19 March 1998 he diagnosed melancholic depression he had no supporting information apart from what he was told by the appellant. Dr Neilson believed that at the time of the killings the appellant was capable of seeing that his actions were wrong in the sense that they were against the law. He was also capable of appreciating that if other people did not agree with his interpretation that his acts were merciful, they would view his actions as wrong. However, because of his delusional belief he could not appreciate that what he was doing was morally wrong.

42. Dr Neilson stated that one delusional belief is sufficient, without more, to be a mental illness. Dr Neilson agreed that a delusion in itself would not in all situations, completely inhibit the ability of a human being to distinguish between right and wrong.

43. Dr Neilson was cross-examined as to the terms of one of the letters written by the appellant, some of his answers in his record of interview and what he said to the ambulance officers. They did not cause Dr Neilson to alter his views. He accepted that on 8 March 1998 the appellant had the capacity to realise that other people would see his actions as wrong.

44. In cross-examination as to diminished responsibility, Dr Neilson confirmed that at the time of the killing the appellant was at least suffering from an abnormality of the mind and that this had some effect on his ability to be able to tell right from wrong in terms of his judgment of the effect of his actions. Although it is not entirely clear the doctor appears to be agreeing that the appellant's abnormality of mind possibly did not diminish his ability to be able to control his actions. This passage appears in his evidence: "Q. …Perhaps you can put in your own words how you say the abnormality of mind affected his mental responsibility. A. …it's exactly the same as the way it affects his knowledge of right, he believes he's carrying out an action to save his wife and children from further suffering."
45. In re-examination Dr Neilson stated that the delusion was the essence of the mental illness and that the disorder from which the delusion arose was secondary.

46. Dr J R Strum, also an experienced psychiatrist and forensic psychiatrist, said that it appeared that the appellant had a clear memory of what he did at the time of the stabbings. Dr Strum said that he would not have expected a person who exploded in the context of a psychotic episode to later have a clear memory of events because of the feelings generated by such a state. Dr Strum agreed with Dr Milton that apart from whether there was a delusion or an over-valued idea there were no other psychotic symptoms. Dr Strum disagreed with Dr Neilson's diagnosis of a severe melancholic depression.

47. Dr Strum agreed with Dr Milton when he said that he would not be happy expressing an opinion as to severe depression. Dr Strum said that mental illness requires more than one symptom. Before a hypochondriacal delusion could be viewed as a mental illness other symptoms were needed either of a psychotic kind such as hallucinations, delusions etc where the hypochondriacal delusion forms part of a group of symptoms or of a depressive kind where the hypochondriacal delusion forms part of a depressive illness.

48. Dr Strum was inclined to think that the appellant had an over-valued idea not a hypochondriacal delusion but of that he could not be sure. Dr Strum explained that an over-valued idea is a fixed idea which is important in a person's thinking. It is amenable to reassurance whereas a delusion is not. The two concepts run into each other. An over-valued idea is not part of a psychotic illness. Dr Strum said that there was no way of knowing at this time whether the appellant was amenable to persuasion. That was the test. It was necessary to know whether he was un-reassurable before or at the time of the killings. There were three possibilities, namely, a delusion, an over-valued idea and a fabrication. He had no way of knowing which of the three alternatives applied because there was no test before the stabbings.

49. Dr Strum said that if the appellant was suffering from a hypochondriacal delusion that would not prevent him knowing the difference between right and wrong. Such a delusion does not cause that kind of thinking disorder. Dr Strum thought that there were quite a few statements in the recorded interview with the police which indicated that the appellant was aware that he was doing wrong. Dr Strum also relied on the appellant's statement to the ambulance officer, "I've wiped out my family", as being suggestive that he knew what he was doing. Dr Strum relied strongly on the appellants statement in the note written prior to the killings, "…Sandy and the children will be joining Berryl in heaven and I will no doubt go where I belong, hell." Dr Strum said, "If he feels that his actions would send him to hell, … this would be suggestive that he knew these actions were wrong."

50. Dr Strum relied on these further statements made by the appellant as showing that he knew that what he was doing was wrong: (i) "I have betrayed my family like no other man can", and (ii) "I had no right to take their lives", and

(iii) "I'd lost control, I just, I lost control of myself, I lost just, I didn't have any feelings for myself, I was shaking, I was in a very bad state of mind." 51. In the last mentioned quote Dr Strum thought that the appellant was really explaining his actions away and that there would be no need to explain them away if they were acceptable actions. Dr Strum said that if at the time of the recorded interview the appellant was still suffering from a hypochondriacal delusion as Dr Milton suggested, the answers in the recorded interview provided pretty clear evidence that during the delusion the appellant retained the ability to distinguish right from wrong.

52. Dr Strum said: "… if … the hypochondriacal delusion … is about one's health. If that is all it was and there was a further thought disorder, then the delusion is not sufficient to explain subsequent actions."

53. As to diminished responsibility Dr Strum confirmed that a delusion is an abnormality of the mind. Dr Strum explained. "There are many people with belief systems, whether they are normal belief systems or abnormal belief systems who are able to make decisions about their actions … So whether his belief was delusional or not I don't think it affected his ability to make decisions about his actions or to know the implications of those decisions. … I can't see the relationship between that particular belief system (of the appellant) and one's ability to control one's actions, I believe that there is no relationship between the two."
54. In cross-examination Dr Strum thought that Dr Milton was reading a wider psychiatric illness into that one symptom of hypochondriacal delusion but could not find any evidence for that wider illness. That was not a sustainable position. He appeared to be saying both things at the same time.

55. Dr Strum agreed that he did not see the appellant until 3 August 1999 and that when he saw him there was no indication of depression and none of delusion. Dr Strum said that it was his experience that the monosymptomatical delusional state does not respond to treatment or medication. This made him wonder about the symptom. What the doctors in the prison hospital were treating the appellant was for the underlying depression which could have been caused by what he did. Dr Strum said that whether the appellant had a hypochondriacal delusion or not it did alter his ultimate opinion. Dr Strum accepted that the appellant had hypochondriacal elements in his personality and that he may have had hypochondriacal delusions but they did not affect his behaviour and his gross behaviour patterns.

56. Towards the end of the cross-examination (T273) Dr Strum's attention was directed to the issue of diminished responsibility. He confirmed that the condition which existed in the appellant would amount to an abnormality of the mind of inherent cause, that is, long lasting. However, he said that given that there was a delusion and no other symptoms the appellant's responsibility was not impaired by the nature of the delusion alleged. He explained his opinion thus: "The reason why I say this is because the delusion in itself, without the absence of other symptoms, really doesn't do anything as far as the responsibility is concerned. There was no evidence of disordered thinking. The thought processes that emanated from this delusion were really two. One was I have given my family aids, and the other one is they may suffer in the climate which exists in our society of whereby people with aids are persecuted now. I don't consider either of those inclusions to be abnormal ways of thinking."
57. Dr Strum added that while the appellant had a terribly bad idea and made a bad choice it did not indicate mental illness.

58. The majority of the evidence went to the issue whether, at the time of the killings, the appellant was suffering from a mental illness that resulted in not being criminally responsible for the killings. The evidence as to diminished responsibility was brief and not always easy to follow. All the psychiatrists agreed that the appellant at the time of the stabbings suffered from an abnormality of the mind and that it arose from inherent causes, ie, it was long lasting. There was one critical point as to the defences. Even assuming that there was a hypochondriacal delusion did this have the effect that the appellant was not aware that what he was doing was wrong or that his mental responsibility was substantially impaired? To succeed on either of these points the appellant and Drs Milton and Neilson effectively had to explain what he wrote in his notes immediately prior to the stabbings, what he said the ambulance officers and police officers after the stabbings and what he said to the police on the day and in his recorded police interview. Dr Strum was not prepared to accept the explanations and approaches of Drs Milton and Neilson. There was, of course, the further point that Dr Strum was not satisfied the appellant suffered from an hypochondriacal delusion as distinct from an over-valued idea.

59. On the fifth day of the trial the jury asked for a definition of "wrong" and some guidance on interpretation and suggested some phrases, "moral wrong", "legal wrong", "delusionary wrong", "altruistic wrong", et cetera. The judge after commenting that some of those words do not go together told the jury: "At the end of the case it will be necessary to give you such directions of law as are necessary, however in the course of the evidence particularly the psychiatrist, you've heard a lot of discussion of an understanding of right and wrong and one of the things that you will need to be told in relation, particularly to the defence on mental illness of a possibility of a special verdict, is that you would consider whether or not the accused was disabled from knowing that what he was doing was wrong, that is to say standing with three people with whom he stand (sic) and where wrong is used in that sense. It is in the sense that an ordinary reasonable person knows the difference between right and wrong, therefore it has a moral dimension rather than knowing that it's against the law. I know that a couple of questions have been addressed as to whether or not he thought it was against the law, that's not the test. The test you will apply will relate to whether or not he could with a reasonable amount of composure understand that what he was doing was wrong in the sense that ordinary reasonable people would know it's right or wrong. And one of the things you would have to consider is whether or not by reason of a mental illness he was disabled from reasoning from ordinary composure that what he was doing was wrong. I hope by the end of the trial it won't sound as complicated as that because you will receive some instructions in its proper context but you will recall as I think one of the doctors responded, in fact I think it was Dr Strum this afternoon, that this is not a matter in which the trial is conducted by psychiatrists, this is a trial by jury. The psychiatric evidence is undoubtedly important and you should pay heed to it but in the end I will explain to you it's going to be for you as representatives of the community to come to a decision in this case about a number of issues, one of which I've indicated to you. " Whilst these comments were primarily directed to the defence of mental illness they have some relevance to the issue of diminished responsibility, because that raised the issue whether the appellant's capacity to distinguish between right and wrong was substantially diminished.

60. The Summing-Up The judge correctly directed the jury that they had to focus upon the appellant's state of mind at the time of the stabbings. After directing the jury on the issue of mental illness the judge told the jury that their task was to: "… determine whether or not the accused has satisfied you more probably than not that he was mentally ill … at the time of committing the alleged offences and whether or not at that time he was by reason of that mental illness disabled from understanding that his act was wrong."

61. The judge explained to the jury that if the appellant had not satisfied them on the balance of probabilities that he was mentally ill at the time of the stabbings they had to consider "the partial defence of diminished responsibility." That was applicable only to the two counts of murder. The judge also explained that the appellant had to establish this defence on the balance of probabilities. As to that defence the judge said (SU18-20): "What is required therefore to establish this defence? There must first be an abnormality of mind which simply means a state of mind so different from that of an ordinary human being that a reasonable person would term it abnormal. The expression 'abnormality of mind' covers the mind's activities in all its aspects, not only in the perception of physical acts and matters and the ability to form rational judgment whether an act is right or wrong but also the ability to exercise willpower and to control physical acts in accordance with rational judgment. In this case all three psychiatrists, that is to say including Dr Strum, are agreed that the accused at the time had an abnormality of mind and you as the jury from the absence of any contradictory evidence should act upon that evidence. The second thing that is required in order to establish this defence is that that abnormality must arise from one or more of various specified causes. I do not propose to take you through all the specified causes, they are set out in a provision in an Act of Parliament. One of them which is relevant is that the abnormality of mind should arise from inherent causes, and once again all three experts are agreed that an abnormality of mind in this case arose from an inherent cause in the sense that it was longstanding. In respect of the cause of mental abnormality you should be guided by the medical evidence and you should accept the unanimous opinion of the experts that have been called before you, there being no evidence at all contradicting it. However before the defence is made out there is a third matter and as I think the Crown Prosecutor mentioned to you, this is really the crux of your task in relation to this defence. If there was an abnormality of mind arising from an appropriate cause, it must be such to have substantially impaired the mental responsibility of the accused for what he did. In other words, the question for you is did such abnormality of mind substantially impair the mental responsibility of the accused, not the moral responsibility of the accused, but his mental responsibility? The expression 'mental responsibility for his acts' involves a consideration of the extent to which the mind of the accused was answerable for his physical acts. In this case the physical acts are the various acts of stabbing whereby the victims were in two cases killed and in one case injured. Your consideration must include attention to the extent of the ability of the accused to exercise willpower to control those acts of stabbing. The question is not whether did he not resist his impulse but whether he could not resist his impulse. You must also consider whether there was a substantial impairment of the mental responsibility of the accused for his acts. Substantial does not mean total, the mental responsibility need not be totally impaired or destroyed altogether, nor does it mean trivial or minimal. It is something in between It is left to you to say on the evidence whether the mental responsibility was impaired and whether it was substantially impaired. There is no specific test which can give you the answer but you must ask yourselves having heard what the medical witnesses have said and knowing what the accused did and what he has said, as you find it to be on the material before you, do we looking at it broadly as people of ordinary common sense, think that it is more probable than not that there was a substantial impairment or diminishing or weakening of this accused's mental responsibility including his ability to exercise willpower to control what he did. If the answer to that question is yes, you would find him not guilty of murder on those two counts and guilty of manslaughter. However if you think there might have been some impairment but it was not substantial, something which did not really make much difference to his mental responsibility although it may have made it harder for him to control himself then your answer would be no, and he would be guilty of murder in respect of each of those counts."
62. No objection was taken to these directions at the trial. It was not suggested that they were wrong. Rather it is contended that they are inadequate and incomplete.

63. The judge remarked to the jury that he had not taken them through the evidence because it had been thoroughly done by counsel over the previous two days and there was no great advantage in him referring them again to what they had recently heard.
64. Within an hour of retiring the jury sent this note:

"Could we please have directions by the judge regarding what constitutes mental illness and diminished responsibility?"

65. As to diminished responsibility the judge said: "To establish the defence of diminished responsibility which would reduce the crimes of murder to manslaughter, that is the two counts number 1 and 2 in the indictment three things are required. First there has to be an abnormality of mind, and second it must derive from specified causes. I have said to you that there is unanimous expert opinion to the effect that those two matters exist in this case and you should accept that evidence. However the third thing that must be proved on the balance of probabilities by the accused is that the abnormality of mind was such as substantially impaired his mental responsibility for what he did. I remind you what I said to you this morning that we are talking about mental responsibility not moral responsibility, and the expression 'mental responsibility' includes a consideration of the mind and the extent to which the mind is answerable for physical acts. In other words you would have to include a consideration of the extent of the accused's ability to exercise willpower to control his acts, and the question is not whether he did resist any impulse but whether he could not. But Parliament has left it for you to say whether or not if there was an impairment it was substantial although it is permissible for experts to express their opinions in terms of that issue, what the law requires is for you to determine the matter yourselves. In making that determination you take into account not only any opinions expressed by the experts but you take into account a whole of the evidence (??) that you have heard and bring to bear your own experiences of life and your common sense. If you think there might have been some impairment but it was not substantial, then the defence would be made out. (??) On the other hand if you do think there was a substantial impairment in the sense that I have indicated, then the defence will be made out and in respect of the two counts of murder, your verdict would be not guilty of murder but guilty of manslaughter. I did not remind you because I thought it was fairly obvious at (??) the context of evidence and addresses of counsel that there was a division of opinion between the experts on this aspect as well.

(As indicated by the question marks there are clerical errors in this passage; "a whole of the evidence" should read "the whole of the evidence" and a "not" has been omitted from the clause "then the defence would be made out.," and "at" should read "in").

You remember that each of them was asked whether he thought there was a substantial impairment and Drs Milton and Neilson expressed the opinion that there was. Dr Strum expressed an opinion to the contrary. I do not think I need to elaborate upon that, you heard the evidence, you know that they have come to a disagreement about that. Again I say to you it is not for the experts to determine this case although their evidence must be weighed by you, it is for you as a representative cross-section of the community to come to conclusion about this matter. Hence if I can just remind you three things have to exist.

In order for this defence to be made out on the balance of probabilities, an abnormality of mind arising from an inherent source [? cause], it must be such as to substantially impaired (sic) the mental responsibility of the accused in the sense that I indicated to you." 66. After the luncheon adjournment on the day of their retirement the jury sent this note: "Did the judge instruct that we have to accept that the accused had an abnormality of the mind or can we reject this abnormality of mind? …"

In response the judge said: "The expression 'abnormality of mind' was used in particular in relation to the instructions that I gave you concerning the partial defence of diminished responsibility. I call it diminished because it does not exculpate the accused but if it is made out it is what would otherwise be converted to manslaughter. It was in that context that the expression was used. You will remember that I told you that there were three things that needed to be proved on the balance of probabilities by the accused in order to make out that defence. That is to say in relation to each of the killings you have to show that there was an abnormality of mind which arose from an inherent cause and the third thing you have to show was that there was a substantial impairment of his mental responsibility for what he did and what he did in that context means these stabbings.

In this particular case I said to you there was unanimous medical opinion that there was an abnormality of mind, I remind you that that is difficult (sic) from mental illness that we were talking about in connection with an offence (sic) of mental illness and it is accurate as you have perceived that you should not and you must not reject unanimous medical evidence in the absence of other evidence which displaces it or throws doubt upon it. What I have said to you is that there is unanimous medical evidence and therefore unless there is some evidence which you find throws doubt or displaces it, I should remind you nobody has suggested any such evidence, then you should act upon that evidence. I should also tell you however that there has been no real issue about those two elements of the defence here. The real issue that you are being asked to consider in relation to diminished responsibility is whether the accused has established on the balance of probabilities that there was a substantial impairment of his mental responsibility for his acts of stabbing and he must prove that on the balance of probabilities in order to establish that partial defence. But in specific answer to your expressed question, it is what I said to you as you remember that you must not reject unanimous medical evidence in the absence of other evidence displaced (sic) or throwing doubt upon it. Again I remind you that that expression 'abnormality of mind' is something that has been dealt with in relation to the defence of diminished responsibility. It is not an expression which is relevant to the instructions I gave you concerning the defence of mental illness."

67. On the afternoon of the following day the jury sought and received the transcript of the evidence of Dr Strum in chief, the evidence of Dr Neilson and the evidence of Ian Cook, the appellant's sister, Susan and David Cheatham. The evidence of the latter three went inter alia, to the appellant's preoccupation with health matters. The jury had earlier sought the transcript of the cross-examination of Dr Milton. The jury note continued: "Concern. Currently at a stalemate. Perhaps further evidence will help. What happens if we cannot get a decision by to-morrow?"

The judge explained to the jury that a decision had to be made on the evidence before them and dealt with their last question.

68. On the third day of their retirement the jury sought and received the transcript of the evidence in chief of Dr Milton.

69. A little later the jury sent this note: "Jury status. Not getting anywhere at the moment, agitation prevailing, can we go home?"

In response the judge gave the jury a Black direction as to trying to reach agreement. On the fourth day of their retirement the jury returned with their verdict. From the jury's notes it is apparent that the jury were having difficulty with the defences of mental illness and diminished responsibility and the concepts underlying them.

70. Appeal Ground 1 reads: His Honour erred by failing adequately to direct the jury in relation to the defence of diminished responsibility Particulars

i The jury were not directed in relation to two important aspects to which attention must be paid in considering whether the defence of diminished responsibility has been established. They were firstly, the appellant's ability to perform a rational (or sensible) judgment as to whether his actions were right or wrong and, secondly, whether the appellant's perceptions of events were impaired.

ii His Honour should have directed the jury that their assessment of the appellant's mental responsibility for his acts included a consideration of his ability to exercise will power to control what he did in accordance with rational (or sensible) judgment .

Iii His Honour failed to direct the jury as to how they should apply the law regarding 'substantial impairment' to the evidence in the case."

71. The appellant submitted that the emphasis of the trial was the defence of mental illness and that insufficient regard was had during the summing-up as to how the evidence that touched on the defence of mental illness should be considered in relation to the defence of diminished responsibility.

72. Before considering these submissions I set out s.23A(1) of the Crimes Act 1900 as it applied to this trial: "23A. (1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder."

73. As to that defence, in Ryan (1995) 90 A Crim R 191 at 195 Hunt CJ at CL, with the concurrence of the other members of the Court, said: "The particular aspects of mind to which attention is usually paid in relation to this defence are the accused's perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people. A person's mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts, and it too involves the extent of that person's ability to exercise willpower to control his physical actions. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind."
74. The Apellant's Detailed Submissions The appellant accepted that the jury's verdict demonstrates that they were not satisfied that the appellant's disease of the mind totally incapacitated him from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing. The appellant submitted that it was then incumbent upon the jury to decide whether the appellant had made out the defence of diminished responsibility. There was ample evidence for them to consider that his ability to determine right from wrong was more than minimally impaired. It was submitted that it was vital that the jury be told that one important aspect of a person's "mental responsibility" was the degree to which he is able to form a rational or sensible judgment as to whether his actions are right or wrong. Similarly, a person's perception of the events at the time of the act causing death is another aspect of a person's "mental responsibility". If his perception was more than minimally impaired by delusional abnormality of the mind the appropriate verdict in the murder charges was "guilty of manslaughter".

The appellant accepted that the judge's direction was accurate when he told the jury that their consideration must include the extent of the appellant's ability to exercise willpower to control the acts of stabbing. The complaint was that the direction did not inform the jury of the crucial components of "mental responsibility", namely, the ability to form rational or sensible judgment as to whether his actions were right or wrong and whether his perception of events was impaired. It was submitted that these two aspects of the appellant's mental responsibility were, on the evidence, the crucial aspects in this case.

In his oral submissions counsel for the appellant contended that there was not much dispute about the appellant's ability to control his actions as the doctors all tended to the view that the appellant could control his actions to some extent. The dispute was about the nature of the appellant's perceptions and his understanding and ability to be able to reason properly whether what he was doing was morally right or morally wrong.

The appellant complained that while the judge paid attention to the issue of the appellant's ability to control his actions he did not adequately deal with the other aspects of abnormality of mind as they bear upon mental responsibility namely, the nature and extent of his perceptions and his understanding and ability to be able to reason properly and to form a rational (or sensible) judgment as to whether his actions were right or wrong

The appellant relied on the judgment of Mahoney P in R v Gieselmann, CCA, 12 November 1996, unreported, with which Dunford J was in general agreement. At p 11 Mahoney P said of s.23A: "The statutory provision requires the tribunal to make a judgment as to the extent to which the 'abnormality of mind' has impaired her mental functioning and so has impaired her capacity to act rationally. For this provision to apply that capacity must have between substantially impaired. If it was so impaired, she is not to be convicted of murder.

Upon this meaning of the provision, it would be necessary for the tribunal to determine whether her capacity for rational conduct or the like had been impaired, whether that impairment had been substantial and of course, whether there was, in the sense to which I have referred the necessary relationship between that impairment and the acts which she did."

Earlier Mahoney P had expressed the view that s.23A requires the Court to find some causal or at least consequential relationship between the abnormality of mind and the acts the subject of the charge. He abstained from defining the precise requirements of that relationship.

The appellant complained that the judge did not say anything about the appellant's capacity to act rationally and that the judge had not followed the approach of the Court in Ryan and Gieselmann. That approach was embodied in the current s.23A(1) of the Crimes Act 1900, which reads: "23A (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter."

That represents an improvement in the expression of the defence of diminished responsibility. It is easier to understand.

However, although not so well expressed the law of diminished responsibility contained in the former s.23A had reached much the same position as a result of judicial exegesis, especially in Ryan and Gieselmann.

The appellant complained that the judge's directions did not apply the law to the evidence in the case. It was submitted that the jury needed to be assisted in this way so that it could be made plain to them just how the evidence of the appellant's impaired ability to determine right from wrong might diminish his mental responsibility for the acts occasioning death. Similarly, the evidence which demonstrated his distorted perceptions at the time of the acts causing death should have been outlined to the jury so that they could properly consider whether or not the evidence demonstrated substantial impaired responsibility.

Counsel for the appellant at the trial did not apply for any further or other directions. The appellant sought leave to rely on the matters now raised pursuant to r.4 of the Criminal Appeal Rules. The appellant contended that as the judge had not adequately defined the concept of "mental responsibility", the jury were left without adequate instructions as to an element of the defence. Thus there had been a substantial miscarriage of justice and leave should be granted. Reliance was placed on Wilde (1988) 164 CLR 365 at 373.

The appellant submitted that there was a compelling body of evidence that the appellant was under a delusion and that his perception of events was substantially impaired. Similarly, there was a very cogent body of evidence that the appellant's thinking about the rights and wrongs of his acts was confused and that therefore his mental responsibility for his acts was accordingly substantially impaired. The appellant further submitted that if the jury had received correct and complete directions and assistance from the judge, there is a real chance that the appellant would have been acquitted of murder and convicted only of manslaughter. This was a further reason to grant leave,

The Crown's Submissions The Crown pointed out that the judge in the early portions of his directions as to diminished responsibility and when dealing with "abnormality of mind" said that it covered the mind's activities in all its aspects including "the perception of physical acts and matters and the ability to form rational judgment whether an act is right or wrong and also the ability to exercise willpower and to control physical acts in accordance with rational judgment."

The Crown submitted that the direction given as to abnormality of mind was in accordance with authority: R v Byrne [1960] 2 QB 396 at 403; R v Chayna (1993) 66 A Crim R 178 at 179 and R v Tumanako (1992) 64 A Crim R 149 at 159.

The Crown further submitted that there are no mandatory directions on the issue of diminished responsibility other than that the trial judge outline the words of the section itself: R v Turnbull (1977) 65 Cr App R 242.

Turnbull suffered from an abnormality of the mind arising from inherent causes He was a psychopath who from time to time suffered from such tendencies. There was only one issue, that is whether on the balance of probabilities at the time of the killing the applicant's abnormality of mind substantially impaired his mental responsibility for his acts and omissions. The English section and s.23A were in substantially similar terms. There was no relevant difference.

Widgery LCJ, with whom Ackner and Parker JJ agreed, said at 244-245: "So for the future it ought to be accepted that the only summing up required under section 2 (the equivalent of s.23A) … is to direct the jury they must look for the three elements of the defence to which I have referred. They should be told that if the three elements of the defence are shown to be present then the defence of diminished responsibility is made out." 91. In Turnbull the jury had to consider whether the inherent mental condition had substantially impaired the mental responsibility of the accused notwithstanding the overlay of drink. There is no doubt that an accused has to establish the three elements which have been mentioned and which the judge specified in the present case. The point at issue is what explanation is sufficient of the third element in the circumstances of the present case.

The Crown also relied on the decision of the English Court of Criminal Appeal in R v Spriggs [1958] 1 QB 270. Lord Goddard explained that the concept of diminished responsibility had been imported from the Scottish law and that the Scottish judges had always found it to be a difficult matter to explain to a jury and a difficult matter for the jury to understand exactly what diminished responsibility means. Lord Goddard referred to some of the explanations which had been given.

Earlier, after noting that there was evidence either way on the issue of diminished responsibility Lord Goddard said at 274: "… we cannot see that a judge dealing with this matter can do more than to call the attention of the jury to the exact terms of the section which Parliament has enacted and leave them to say whether upon the evidence they are satisfied that the case comes within the section or not. When Parliament has defined a particular state of things, as they have defined here what is to amount to diminished responsibility, it is not for judges to re-define or to attempt to define the definition. The definition has been laid down by Parliament and it is a question then for the jury. It is a question of fact in any particular case as to whether the jury find that the defendant's evidence brings him within the section or whether it does not …"

Lord Goddard stated that it was not the duty of the judge to enter into metaphysical distinctions and nice distinctions between mind and emotion or intellect and emotion. The Crown submitted that the judge in the present case told the jury of the matters s.23A required the appellant to prove and in doing so adhered closely to the terms of that section. He posed the question for the jury thus "did such abnormality of the mind substantially impair the mental responsibility of the accused..."

The Crown also relied on this passage from R v Byrne, 1960 2 QB 396 at 404 referring to directions usually given as to diminished responsibility: "They indicate that such abnormality as 'substantially impairs his mental responsibility' involves a mental state which in popular language (not that of the McNaughten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity."

That passage indicates the high degree of impairment which is required under the phrase "substantially impaired his mental responsibility."

The Crown stressed that many of the judge's directions were almost direct quotations from Byrne, supra, or from decisions of this Court. The judge's directions as to abnormality of mind follow closely what was said in Byrne at 403 as do those as to the expression "mental responsibility for his acts." See also Trotter at 537, Chayna at 190-191 and Ryan at 190-191.

The Crown contended that the authorities did not require a judge to add the words "in accordance with rational (or sensible) judgment when telling the jury that a person's mental responsibility involves the extent of that person's ability to exercise willpower to control his physical actions. That rider, it was submitted does not appear in Trotter at 537. However, it does appear in Ryan at 195.

As to the complaint that the judge did not relate the law to the facts the Crown, inter alia, referred in some detail to the evidence. The Crown pointed out that the judge urged the jury to approach the issue they had to decide in a broad common sense way. He directed the jury that "in the course of the evidence given by the psychiatrists they have expressed their opinion in terms which precisely match those directions that I have given you." The judge made brief references to the views of Drs Milton, Neilson and Strum when dealing with the issue of mental illness.

The Crown accepted that the judge did not specifically extract parts of the evidence to illustrate his directions. He was not asked to do so. Nor, the Crown submitted, was he required to do so. However, the judge told the jury that they were to consider the evidence before them, namely, that of the medical witnesses and the evidence generally of what the accused said and did. The judge said that he did not need to elaborate upon the opinions of the experts as the jury knew that they disagreed about whether the accused's abnormality of mind was such as substantially impaired his mental responsibility.

The Crown relied on this comment in the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi & Davis (2001) 119 A Crim R 8 at 22. "However, as with all judicial comments on the facts in a jury trial, it will often be better (and safer) for the judge to leave the assessment of the facts to the determination of the jury in the light of the submissions of parties. Unnecessary or extensive comments on the facts carry well recognized risks of misstatements or other errors and of blurring the respective functions of the judge and the jury." In that case the Court was dealing with a comment by a judge about the accused not giving evidence. 101. In Azzopardi & Davis at 21 the joint judgment remarked: "The judge's task in relation to the facts ends at identifying the issues for the jury and giving them whatever warnings may be appropriate about impermissible or dangerous paths of reasoning."

The appellant was not concerned about comments on the evidence but relating the law to the facts of the case. 102. The Crown submitted that as the psychiatrists had made it clear what parts of the evidence were to be considered in determining the particular aspects of the defence of diminished responsibility it was not necessary for the judge to repeat those parts. He had provided guidance to the jury on the law and referred the jury briefly to the opinion evidence of the medical witnesses.

The Crown contended that even if, contrary to its submissions, the judge's directions were held to be deficient, no miscarriage of justice occurred. There was no unanimity amongst the experts and the actions and statements of the appellant before, at the time of and after the killings provided a sure foundation for the conclusion that the appellant knew that what he was doing was wrong. Leave should not be granted to the appellant to raise the complaints now propounded. The appellant had been represented by experienced senior counsel at the trial.

The Resolution The appellant is correct in submitting that the critical aspects of the appellant's mental responsibility were his ability to form a rational or sensible judgment as to whether his actions were right or wrong and the extent of the impairment of his perceptions. However, Dr Milton's evidence raised as an issue the appellant's ability to control his actions in accordance with a rational or sensible judgment. At 176-177 Dr Milton said that the appellant's abnormality of mind affected his capacity to exercise willpower to control his physical actions in accordance with rational or sensible judgment. Dr Neilson and Dr Strum did not seem to agree with Dr Milton on that point. Dr Neilson said that the appellant was able to have control of his physical actions but his judgment was grossly impaired (T217-218). The judge had to and did cover the last aspect adequately. The question is whether he covered the other aspects of abnormality of mind adequately.

The judge did leave the ultimate question posed by s.23A of the Crimes Act to the jury and closely followed the terms of the statute in doing so. In that respect he complied with Spriggs and Turnbull.

In Spriggs at 274-276 Goddard LCJ acknowledged the learning and experience of the Scottish judges in this area. He referred to and applied Lord Cooper's charge in H M Advocate v Braithwaite 1945 SC(J) 55 where his Lordship explained the concept of diminished responsibility by reference to various statements in previous cases. Lord Cooper said: "You will see … the stress that has been laid in all these formulations upon weakness of intellect, aberration of mind, mental unsoundness, partial insanity, great peculiarity of mind and the like."

Lord Cooper also earlier referred to an extract from an earlier charge by Lord Moncrief: "Was he, owing to his mental state, of such inferior responsibility that his act should have attributed to it the quality not of murder but of culpable homicide?"

These are useful guides as to what is involved in the concept of diminished responsibility. In the light of these passages I do not accept the submission that if the appellant's perception was more than minimally impaired by delusional abnormality of the mind the appropriate verdict in the murder charges was "guilty of manslaughter". That does not adequately reflect the extent of the impairment of mental responsibility which must exist,

In his summing-up the judge told the jury that "abnormality of mind" covers the mind's activities in all its aspects, not only in the perception of physical acts and matters and the ability to form rational judgment whether an act is right or wrong, but also the ability to exercise willpower and to control physical acts in accordance with rational judgment. The judge then told the jury that as all the psychiatrists agreed that the appellant at the time had an abnormality of mind they should act upon that evidence and find accordingly. Later, when the jury queried whether they had to act on that basis, the judge told them that they should do so. The judge also directed the jury that they should accept the unanimous opinion of the experts that the abnormality of the mind arose from inherent cause.

The directions of the judge to the jury to accept that the appellant suffered from an abnormality of mind arising from inherent cause were very favourable to the appellant. However, the Crown apparently accepted that the appellant had established these and conducted its base on that basis. The judge said that as the Crown Prosecutor had mentioned the crux of the jury's task was to decide whether the abnormality of the mind arising from inherent cause was such as to have substantially impaired the responsibility of the appellant for what he did. The judge explained, "In other words, the question for you is did such abnormality of mind substantially impair the mental responsibility of the accused, not the moral responsibility of the accused, but his mental responsibility? The expression 'mental responsibility for his acts' involves a consideration of the extent to which the mind of the accused was answerable for his physical acts." The judge also told the jury that their consideration "must include attention to the extent of the ability of the accused to exercise willpower to control those acts of stabbing."

Ryan at 195 makes the point that attention should be paid to the accused's perception of events, his ability to form a rational judgment as to whether his actions were right or wrong and his capacity to exercise willpower to control his physical actions in accordance with rational judgment. The judge told the jury this when he explained what abnormality of mind covered.

Since the decisions in Ryan and Gieselmann where the accused contends that his perceptions of events were substantially impaired or that his ability to form a rational or sensible judgment as to whether his actions were right or wrong was substantially impaired or, as is usually the case, both, it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions (in the present case the stabbings) they must take into account the perceptions of events of the accused and the nature and extent of any impairment of his perceptions, his capacity to understand events and his ability or capacity to form a sensible judgment as to whether his actions were right or wrong. I think that the directions in total did this.

The judge took the view that it was unnecessary for him to summarise the facts in view of the thorough and lengthy addresses of counsel. The psychiatrists had themselves pointed up their areas of agreement and disagreement. The jury had the transcripts of the psychiatric evidence with them in the jury room. Juries often find it difficult to understand and deal with the question of diminished responsibility. They have to wrestle with the psychiatric evidence. It is difficult when experienced psychiatrists disagree. In the present case the disagreement extended to the weight and interpretation to be given to the appellant's actions and statements between 5 to 8 March 1998 (both inclusive). On any view it was a difficult question whether the accused's abnormality of mind was such as substantially impaired his mental responsibility.

The judge identified the issues for the jury. He reminded them of the differing views of the psychiatrists and briefly summarised the ultimate difference. The judge was not required to do more. The law was sufficiently related to the facts.

If experienced senior counsel who appeared for the appellant at the trial had thought that more needed to be said by way of explanation about the need to consider the appellant's perceptions of events and whether they were impaired and the appellant's ability to form a rational (or sensible) judgment as to whether his actions were wrong, senior counsel could have asked the judge to explain those matters further. While a fuller explanation would have been desirable the directions given were adequate. My reading of the evidence is that what the accused said and did between 5 to 8 March 1998 (both inclusive) made it difficult for him, despite the evidence of Drs Milton and Neilson to succeed in his defence. These matters were emphasised and relied on by Dr Strum.

The next issue is whether leave should be granted under Rule 4. This was a re-trial. I accept that it was a re-trial on the mental illness issue and that the re-trial was ordered to enable the issue of diminished responsibility to be left to the jury. Thus there was ample opportunity for all parties to consider in advance what directions should be given to the jury. The appellant was represented by senior counsel. He sought no further directions. The judge left the issue of diminished responsibility to the jury in terms of s.23A of the Crimes Act 1900 as it stood at the date of the stabbings. If the matters now argued had been raised with the judge he could have given further directions. The complaint really reduces to the proposition that more emphasis should have been put on the aspects of impairment of perceptions and the appellant's ability to form a rational judgment as to whether his actions were right or wrong. As earlier appears, the judge reminded the jury of the critical issue several times. Leave to rely on the points now raised should be refused.

I propose that the appeals against convictions be dismissed.

Leave to Appeal Against Sentence The judge said that he was satisfied that to some degree at the relevant time the appellant was suffering from a delusion, namely that he was suffering from AIDS. However, the judge stated that the jury's finding and his finding was that at the time of the various critical events the appellant was aware of the nature and quality of his acts, which involved stabbings and that he knew that his acts were wrong morally. The judge further found that in a rather convoluted sense this series of events were a type of claimed euthanasia. The judge held that the culpability of the appellant for this, given the findings which the jury must have made, and which he had made was not significantly reduced. The judge stated that he had not overlooked that after the stabbings the appellant made a genuine attempt to commit suicide.

The judge appeared to accept the evidence of Dr Milton that the appellant felt a sense of guilt and depression but that he is no longer deluded and the evidence of the psychiatrists that he is not a risk to society.

The appellant is the son of a prison officer and the brother of a police officer. The appellant worked for several years in the juvenile justice system and was recognized by one of his former clients from that system who is now an adult and in custody with him. There was an incident in Long Bay Prison where an inmate was going to stab the appellant. It was only the intervention of Corrective Service personnel which prevented that from happening. The appellant is in strict custody and likely to remain there because of his own prior position and those of his family.

Mr David Cheatham, the applicant's brother, gave evidence that the appellant had been absolutely devastated by the loss of his wife and elder daughter. The welfare staff, the prison officers and the psychologists at the gaol had contacted him from time to time about the appellant's intention of committing suicide and his attempt to cut off his right hand. He and other member of the family are supporting the appellant.

Drs Milton and Strum were agreed that the appellant was remorseful and would need psychiatric treatment to help him come to terms with what has happened.

The appellant was born on 9 September 1964. He had no previous convictions. He came from a good family and was a decent and good citizen up until these offences. He had in the past exhibited hypochondriacal symptoms in relation to his health. He had a good employment record and had been employed by the Department of Community Services in a responsible position for some months before the offences. His employment had been confirmed on the evening of the events. At that point, about 8.30 pm, he seemed to be in good spirits.

Despite the intensity and savage nature of the attack it was not carefully pre-planned. The appellant's decision to carry out the stabbings seems to have occurred sometime after 10.30 pm. What happened between 8.30 and 10.30 pm and after 10.30 pm to lead to the appellant carrying out the stabbings and thereby killing his wife and elder daughter and seriously injuring his younger daughter with the intention of killing her does not appear. Perhaps it was a result of his brooding over his incorrect self-diagnosis.

The judge found that there were special circumstances but he did not express what they were save to say that he, like Newman J, had come to that conclusion. Newman J had found special circumstances in the appellant having to spend his incarceration in difficult circumstances. Grove J had earlier referred to that feature.

As all the psychiatrists agreed, the appellant was suffering from an abnormality of the mind of long standing. While the jury and the judge have found that the appellant had not proved, on the balance of probabilities, that the abnormality had substantially impaired the his mental responsibility and the judge found that the appellant knew that his acts were morally wrong, an assessment has to be made of the extent to which the abnormality affected the appellant. It obviously had some effect, albeit less than substantial. It is unlikely that these serious offences would have been committed if his abnormality of mind had not existed.

The appellant submitted that the judge seemed to undertake the sentencing exercise on the basis that the appellant's acts of "euthanasia", which were motivated by a delusion were not significantly less criminally culpable than acts of euthanasia committed by a totally rational offender. This is putting the matter too high. While the judge was satisfied that to some degree the appellant was suffering from a delusion, he did not go as far as holding that the appellant was motivated by a delusion. The judge was not able to say what finally triggered the appellant's actions in stabbing the members of his family. In saying that the culpability of the appellant for the claimed "euthanasia" was not significantly reduced the judge was not necessarily measuring such culpability against that of a totally rational offender. The evidence of Dr Strum was that the delusion alleged did not substantially impair the appellant's mental responsibility.

The appellant submitted that the judge erred by not significantly reducing the sentence in order to give effect to the principle that less weight should be given to general deterrence in he case of an offender suffering from a mental disorder. In Champion (1992) 64 A Crim R 244 at 254, Kirby P, with the agreement of Sully J and Lee AJ, adopted this passage from the judgment of Badgery-Parker J (with whom Gleeson CJ and Sheller JA agreed) in Letteri, CCA, unrepoorted,18 March 1992: "The principle … is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result the considerations of general deterrence are totally outweighed by other factors."

The appellant pointed out that he does not present a risk to society and that no issue arises as to protection of the community and that the need for personal deterrence should have played little or no role in the sentencing. It was submitted that even taking into account that the appellant was convicted of three very grave charges a head sentence of 24 years was excessive in all the circumstances.

The appellant complained that in setting a non-parole period of 16 years the judge had only reduced the standard non-parole period of three-quarters of the head sentence by two years and that this was inadequate. It is well recognized that every year in protection is equivalent to a much longer loss of liberty than in ordinary conditions of imprisonment: Kirby J in AB (1999) 198 CLR 111 at 152. See also Davies (1978) 68 Cr App R 319 where it was stated that every year served in protective custody is the equivalent of 18 months or 2 years in ordinary custody, Perez-Vargas (1986) 8 NSWLR 559 at 563 and Gardiner [2002] NSWCCA 209

The Crown submitted that in rejecting the defence of diminished responsibility the jury found that the appellant's cognitive functioning was affected only trivially if at all. That does not follow. There is a large area between substantial impairment and trivial impairment. Further, all the jury decided was that it was not satisfied that there was substantial impairment. The Crown submitted that to take into account that the appellant's cognitive functioning was adversely affected as suggested by the appellant was to go behind their verdict.

The Crown correctly submitted that even if the appellant was suffering from an abnormality of the mind general deterrence still operated: Champion, supra, at 255. The Crown further submitted that if an offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, the moderation of the weight given to general deterrence need not be great: R v Bus, unreported, NSWCCA 3 November 1995 and R v Elchami, unreported, NSWCCA 15 December 1995. See also R v Jarman [2001] NSWCCA 178 .

The Crown pointed out that at the time of sentencing the appellant no longer held any delusional beliefs. The Crown correctly submitted that the objective seriousness of the offences was high and that this must be adequately reflected in the sentences imposed. The Crown contended that the sentences imposed were within the permissible range.

The Crown submitted that any reduction in the non-parole period would fail to properly reflect the objective seriousness of the offences. It also submitted that protective custody was taken into account in fixing the whole sentence.

At the forefront of any consideration of penalty must be the murders of the appellant's wife and elder daughter and his wounding of his younger daughter with intent to murder her and the savagery of what he did. The appellant failed to satisfy the jury that his abnormality of mind substantially impaired his mental responsibility. However, allowance has to be made for the abnormality of mind from which he was suffering and that but for this it is unlikely the stabbings would have taken place.

Considerations of general deterrence and specific deterrence are applicable but there has to be a small moderation of the sentences to allow for the appellant's abnormality of mind. The head sentence of 24 years does not sufficiently allow for the appellant's abnormality of mind nor the time being spent in protective custody. The correct head sentence for the appellant's murder of his wife was one of 22 years. Because the sentence has to be served in protective custody there are special circumstances. The correct non-parole is 14 years. The correct sentence for the appellant's murder of his elder daughter would also be one of 22 years with a non-parole period of 14 years. However, understandably there was no appeal by the Crown against the sentence of 16 years (with no non-parole period) because of the sentence on the wife's murder which rendered any appeal academic. In these circumstances I would impose a sentence of 14 years (with no non-parole period) on the appellant for the murder of his elder daughter. No non-parole period is fixed because of the concurrent sentence for the wife's murder. I would not disturb the sentence of 12 years on the appellant for the malicious wounding with intent to murder his younger daughter.

I propose the following orders: 1. Appeals against convictions dismissed.

2. Dismiss appeal against sentence of imprisonment of 12 years for wounding Tahnee Jade Cheatham with intent to murder commencing on 6 March 1998

3. Leave to appeal against sentences imposed on the appellant for the murders of Sandra Marie Cheatham and Briahna Marie Cheatham; appeals allowed; sentences quashed

4. In lieu thereof the appellant is sentenced to imprisonment as follows: (i) For the murder of Sandra Marie Cheatham - 22 years commencing on 6 March 1998 with a non-parole period of 14 years commencing that day and ending on 5 March 2012, and

(ii) For the murder of Briahna Marie Cheatham - 14 years (with no non-parole period) commencing on 6 March 1998 and ending on 5 March 2012. 5. All sentences are to be served concurrently.

BEAZLEY JA: I have had the advantage of reading in draft the judgment of Smart AJ.

I agree with his Honour that the appeals against convictions be dismissed for the reasons given by his Honour.

That leaves the question of sentence. Smart AJ has set out the various submissions of the appellant and the Crown and it is not necessary to repeat them. The question, in my opinion, which this Court has to consider, is whether the trial judge erred in the sentencing process. Smart AJ has taken the view that the head sentence imposed by his Honour "does not sufficiently allow for the appellant's abnormality of mind nor the time being spent in protective custody". Smart AJ has also pointed out (at para 125) that an assessment has to be made of the extent to which the abnormalities affected the appellant. That of course was the task of the trial judge and one which, in my opinion, his Honour undertook. His Honour said in his Remarks on Sentence: "… to some degree the prisoner was suffering from a delusion at the relevant time that he was suffering from AIDS. However, the finding of the jury is such, and my own finding is, that at the time of the various critical events he was aware of the nature and quality of his acts, which in each case involved stabbing, and that he knew that his acts were wrong."

His Honour continued: "… it was clear on the evidence in my view … that … at all relevant times the prisoner was well aware that what he was doing was against the law. In a rather convoluted sense this series of events were a type of claimed euthanasia. It seems to me that the culpability of the prisoner for this, given the findings which the jury must have made and which I have made, is not significantly reduced …" (emphasis added) 141. His Honour then explained why he considered this case was not in the worst category of case. He then sentenced the prisoner, imposing effectively the same sentence which had been imposed by Newman J at his earlier trial.

142. In my opinion, no appealable error has been disclosed in his Honour's approach. It is clear that, on his Honour's finding, to the extent that he was suffering some abnormality of mind, it was not such as to significantly affect him. In particular, as Smart AJ has commented, his Honour did not hold that the appellant was "motivated" by the delusion from which he was suffering.

143. His Honour's findings and approach were open on the evidence. As such no appealable error has been demonstrated in this aspect of his Honour's judgment.

144. The other matter which has caused Smart AJ to intervene is the fact that the appellant will spend most if not all of his term of imprisonment in strict custody. Again, his Honour had this matter firmly in mind in sentencing the appellant and gave it appropriate weight.

145. There was, therefore, in my opinion, no appealable error in this aspect of the sentencing process.

146. Accordingly, I would grant leave to appeal against sentence but dismiss the appeal.

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