REGINA v MAJDALAWI

• 13 - IN THE COURT OF CRIMINAL APPEAL

SPIGELMAN CJ NEWMAN J ADAMS J

JUDGMENT 1 SPIGELMAN CJ: The Appellant was found guilty of murder. His defence at trial and in this Court was that of diminished responsibility pursuant to s23A of the Crimes Act 1900. The only ground of appeal is that the verdict of the jury is unreasonable having regard to the medical evidence which, it is submitted, clearly establishes the defence of diminished responsibility. 2 On 21 March 1996 the Appellant shot his wife outside the Family Court in Parramatta a number of times, with the last shot at close range to her head. 3 The submissions of both the Appellant and the Crown accepted that three conditions must be made out, namely, the jury must be satisfied that at the time of the killing the Appellant was:

(ii) that the abnormality arose from a condition of arrested or retarded development of mind or from some inherent cause or was induced by disease or injury;

(iii) that the abnormality substantially impaired the accused's mental responsibility for the act. 4 The Crown accepted that conditions (i) and (ii) had been made out. Issue is joined on condition (iii) namely whether the abnormality of mind substantially impaired the Appellant's mental responsibility for the killing. 5 With respect to this third element the issue for this Court is whether it was open to the jury to reject the defence of diminished responsibility on the evidence before it. 6 Two psychiatrists were called in the defence case, both with varying qualifications to which I will presently refer, who gave evidence in support of the defence. 7 The Appellant accepted the statement of principle in this respect of Badgery-Parker J in R v Tumanako (1992) 64 A Crim R 149 at 160 as follows: "Because the existence of the first and the third elements are matters for determination by the jury being matters of degree not capable of scientific measurement, and the jury is entitled to approach them in a broad commonsense way and not necessarily in accordance with the medical evidence, on neither issue is the jury, bound to accept the medical evidence if there is other material before it which in the judgment of the jury, conflicts with it and outweighs it." 8 The Appellant, accordingly, had to submit, and did submit, that there was no other material before the jury which conflicted with the medical evidence and outweighed it. 9 In his written submissions the Appellant did not focus on the fact that the existence of such material was a matter for "the judgment of the jury", as Badgery-Parker J put it. The Appellant did accept the conclusion of Badgery-Parker J at 160-161: "On any of the three issues in the case, it is open to the jury to reach a conclusion different from that expressed by the medical experts, but only where there is other evidence displacing or throwing doubt upon it, or where the medical evidence is not unanimous." 10 The third element in the defence of diminished responsibility was considered by Hunt CJ at CL, in R v Trotter (1993) 68 A Crim R 536. His Honour said at 537-538: "... the tribunal of fact is not bound to accept the medical evidence where there is other material before it which, in its judgment, conflicts with it and outweighs it [ Byrne [1960] 2 QB 396 at 403]. Such material includes the nature of the killing, the conduct of the accused before, at the time and after the killing and any history of mental abnormality: Walton [1978] AC 788 at 793. The tribunal is in any event entitled to consider the quality and the weight of the expert medical evidence (at 793). The 'crucial' question in the defence of diminished responsibility is, however, whether the impairment of the accused's mental responsibility for his act was substantial: Byrne (at 403). Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial ... . It was held in Byrne (at 404) that medical evidence is relevant to this question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involved matters of degree, and that it is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can 'properly' be called substantial, it was pointed out (at 404) that this is a matter upon which juries make quite legitimately differ from the medical experts. See also Lloyd [[1967] 1 QB 175 at 179]. It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: Ignjatic (1993) 68 A Crim R 333 at 346-347. Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused's perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused's mental responsibility for his actions may 'properly' be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad commonsense way: Byrne (at 404); Walton (at 793). It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact." 11 This passage was substantially reproduced by Hunt CJ at CL with whom Grove and Allen JJ agreed in R v Ryan (1995) 90 A Crim R 191 at 195-196. 12 The Crown also referred to the judgment of this Court in Regina v Gieselmann (Supreme Court of NSW, Court of Criminal Appeal, 12 November 1996, unreported). In that case there was a substantial unanimity of professional opinion. Nevertheless, this Court held that the jury was entitled to rely on other evidence with respect to the third element of substantial impairment. (See for example at 34-36 per Sully J.) 13 The Appellant relied on the evidence given at the trial by two psychiatrists, Dr Canaris and Dr Shand. Dr Canaris was, in fact, engaged by the Crown to examine the Appellant although he was ultimately called in the defence case. As is often the case in such matters the opinions of the psychiatrists were based on a version of the events given to them by the Appellant. As is the case with all forms of expert opinion evidence, the extent to which reliance can be placed by the tribunal of fact on an expression of opinion depends on whether the factual assumptions upon which the opinion has been based are otherwise made out in the evidence. In this case in a number of respects that proved not to be so. 14 The weight which the jury was entitled to give to the opinion of Dr Canaris was affected further by two factors. First, at the commencement of his cross-examination, Dr Canaris accepted the proposition that whenever he was asked to give an opinion on matters of this character, he began with the proposition that he would want to make a finding of diminished responsibility "If I can". Secondly, in his evidence-in-chief Dr Canaris introduced his conclusion with the words: "… the reality is this is a very difficult case - or it is not straight forward." 15 He gave evidence of the following character by way of conclusion: "… Mr Hoss is anything but a well adjusted man. There is evidence of substantial disturbance in his functioning going as far back as his early childhood his experience of rape at a young age with a decidedly unhelpful if not grossly destructive response from his mother seems to have set the tone for his life. From what he told me he seems to have suffered from a chronic post-traumatic stress disorder PTSD is the common way that that is abbreviated, [arising] from the rape perpetrated on him at the age of 9 years. There had been periodic exacerbations of his disorders in which he has become overtly anxious, depressed, sleepless and suicidal with increasingly intrusive recollections of the rape. His depression has at time been of moderate to severe intensity and there is strong evidence that he has been strongly suicidal in the past. He claims no recollection whatsoever of the actual shooting of his wife saying that he had purchased the gun solely with the intention of killing himself if he were not allowed access to his children ... . Taking his account entirely at face value Mr Hoss would be a serious contender for a defence of diminished responsibility. This would be on the basis of a chronic pre-existing and substantial disorder of mood with features of anxiety and depression arising in the context of a diagnosis of PTSD. ... His personality development was in all likelihood substantially flawed because of the combined impact of the sexual abuse and the chronic PTSD giving rise to a reasonable probability that his judgment at the time of the shooting was significantly impaired. We would still have a problem in defining the precise connection between his mood state and the shooting because of his claim to have no recollection whatever of his actions." 16 At trial the thrust of the Crown's cross-examination of Dr Canaris was the identification of a number of factual matters which Dr Canaris had accepted from the Appellant and which were disputed. On this appeal the Crown directed attention to two specific matters:

(i) The Appellant had originally denied to Dr Canaris that there was any violence in the marital relationship, contrary to a considerable body of evidence.

(ii) The Appellant had told Dr Canaris that immediately after shooting his wife he had put the gun up to his own head in an attempt to commit suicide. A number of eye witnesses indicated that nothing of that character had occurred and, indeed, the Appellant agreed in cross-examination that it had not occurred. 17 During the course of his cross-examination Dr Canaris accepted that he had earlier indicated that on the basis of these two matters, namely the denial, contrary to the fact, of a history of violence towards his wife and the assertion, also contrary to the fact, that the Appellant had put the gun to his head, that in the absence of those circumstances it was "very difficult to support a defence of diminished responsibility". 18 The jury was entitled to give weight to the fact that there was no attempt at suicide on this occasion. The circumstances were that the accused had bought a gun which he claimed he had acquired for the purposes of committing suicide, carried it with him on his person to the Family Court and, on no occasion, made any attempt to commit suicide, including in the immediate aftermath of the shooting, as attested to by a number of independent eye witnesses. They testified that the shots, and particularly the last shot at close range, was delivered quite calmly, after which the Appellant smiled and walked away slowly. These are aspects of the specific conduct of the accused which are inconsistent with the factual assumptions on which Dr Canaris based his expert opinion and themselves are matters entitled to be taken into account and given weight by the jury in assessing the third element of the defence of diminished responsibility, namely the issue of substantial impairment. 19 The other expert psychiatrist called was Dr Shand who gave evidence to the effect that the Appellant: "... suffers from substantial personality disorder in association with chronic post-traumatic stress disorder with depressed and anxious moods if one accepts the accuracy of the history." 20 In the course of his evidence Dr Shand said, as had Dr Canaris, that additional material had become available to him which indicated that some of the aspects of the history reported to him by the Appellant may not be accurate. Furthermore, during the course of his cross-examination, counsel for the Crown put six factual matters to Dr Shand with a view to expressing an opinion as to what, if any, effect these factual matters may have on the opinion he had previously expressed. These were:

(i) The Appellant had previously threatened to kill his wife.

(ii) On the day of the killing no words were spoken by the wife apart from shooing him away.

(iii) After having shot her four times, when she was lying on the ground, the Appellant walked up and fired the final shot point blank into her head.

(iv) He made no gesture of holding the gun up to his own head in an attempt to commit suicide.

(v) He was seen to be smiling after he shot his wife while walking into the court and then afterwards inside the court.

(vi) The reason why he took the gun out of the car on that day was not because of safety concerns about the gun in a car with a door that did not lock. 21 Dr Shand said that his opinion could vary as a result of two of the six factors and possibly a third. The two factors were that he did not hold the gun to the head and that the reason for taking the gun was not for security reasons. The one factor about which it was not "possible to arrive at a firm conclusion" was the reference to smiling. 22 There was a body of evidence which supported each of the factual propositions put by the Crown to Dr Shand. In the event Dr Shand accepted that in the light of these factors: "It would detract from ... my confidence in the diagnosis to some extent." 23 Dr Shand maintained that the accused was entitled to claim diminished responsibility and added: "I think it is a reasonable claim in the psychiatric sense under the circumstances. But ... if one assumes the facts that you have given me." 24 Dr Shand accepted that whilst he continued to support the claim, he did so "less confidently". 25 This aspect of the degree of confidence with which psychiatrists express an opinion after cross-examination by the Crown - the opinions expressed by both of the psychiatrists being so qualified - is a matter of significance for the jury in attributing weight to those opinions and in determining the issue of "substantial impairment" which, as I have indicated above, is very much a matter of judgment for the jury. 26 In this case other evidence was also available to the jury which entitled it to come to the view that it did on the issue of substantial impairment. I refer in particular to the evidence of a psychologist and another psychiatrist who had seen the Appellant prior to the shooting. 27 Dr David Fox was consulted by the Appellant and his wife on three occasions. He also saw the Appellant on a number of occasions alone. He gave evidence of the pattern of violence in the relationship and also of the deceased's assertion of homicidal threats against her by her husband. It was to Dr Fox that the Appellant had originally revealed the fact that he had been raped as a nine year old. 28 Dr Fox gave the following evidence in the course of cross-examination: "I did not regard him in need of psychiatric treatment or assessment ... I did not regard him as needing it. I did not see him as being different from normal people." 29 Dr Fox elaborated on this evidence in re-examination: "He did not present as different from normal people. He was agitated, he was anxious, he didn't understand what had been the basis of his abusive relationship with his wife. He was short of information. He gained that information in the sessions with me. I left him with the option to recontact me which he did not make use of because he was in Sydney, I assumed and I didn't see it necessary to refer him on for any psychiatric assessment because at that point he was not showing any evidence of psychiatric problem. I have worked in psychiatric hospitals and a psychiatric assessment centre in Canberra. I know very well what the symptoms are which would mean I would refer someone off to see a psychiatrist. He didn't show any symptoms of psychosis and he didn't have any of the symptoms that normally make me send him off to somebody else, so I did not do so." 30 Dr Juozas Ziukelis was a qualified medical practitioner and psychiatrist. He saw the Appellant alone in August 1995 and saw him together with his wife in September 1995. He had been told by the Appellant, when interviewed alone, that the Appellant had attempted suicide before. He had conducted a mental-state examination of the Appellant. He noted that his conclusion was that he could not find any features that would be in keeping with a mental illness. He did not see evidence of abnormality or of a depressed mood or of psychotic features. 31 Of further significance for the jury was the fact that it had before it a record of interview conducted with the Appellant on the very day of the shooting. It was able to observe the Appellant and his conduct as well as observe the answers to specific questions. It consisted of admissions that he had shot his wife, but also of a long period of questioning about his relationship with his wife and the cause of their dispute. The jury had an opportunity to observe the Appellant. It was also during the course of this record of interview that he gave evidence to the effect that he had put the gun to his head and it did not click. This, as I have indicated above, was contradicted by the eye witnesses. 32 In my view the jury did have before it a body of evidence about the killing including the conduct of the Appellant before, at the time of and after the killing, of a character which enabled them to assess for themselves the question of whether or not the mental abnormality of the Appellant substantially impaired his mental responsibility for the act. 33 In the light of these factors, together with the qualifications of the expert evidence upon which the Appellant primarily relies, and which the experts themselves gave in the course of their evidence, it was open to the jury to reject the claim of diminished responsibility. 34 I would dismiss the appeal. 35 NEWMAN J: I agree. 36 ADAMS J: I agree. It is important to note that the value judgment by the jury representing the community to which his Honour the Chief Judge at Common Law adverted in Regina v Ryan is a decision about culpability. Hence it is not a medical question. This point has now been made clear by the provisions of the present s23A. I agree with the order proposed. 37 SPIGELMAN CJ: The order of the Court is appeal dismissed. **********

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