The evidence of the psychiatrists
127As I have said, the judge had the benefit of the opinions of three psychiatrists: Dr Phillips, Dr Skinner and Dr Klug. None of these treated Mrs Jeffries. There is no evidence that she ever consulted a psychiatrist except on an occasion some 17 years before her death when she was experiencing marital problems and Dr Moroney referred her to Dr Tann. The three witnesses prepared medico-legal reports based on facts and assumptions with which they were provided for the purpose of doing so.
128Dr Phillips and Dr Skinner agreed that suicide is a rare event and that suicide and suicidal behaviour are statistically rare, even in populations at risk. The rarity of suicide, even in people known to be at higher risk than the general population, contributes to the impossibility of predicting suicide. The statistical rarity of suicide also makes it impossible to predict on the basis of risk factors either alone or in combination. Knowledge of risk factors will not permit the psychiatrist to predict when or if a specific patient will die by suicide. Dr Klug made reference without disapproval to those factors.
129The judge referred to a general psychiatric principle stated by Dr Phillips (at [224]):
"... it can be stated that the best predictor of behaviour by any single person is past behaviour by that person. There is no evidence to suggest that Mrs Jeffries made any attempt to harm or to kill herself in the many year period when she had been a patient of Dr Moroney. This striking fact makes it unlikely that she would attempt to kill herself in the future".
130Dr Skinner in her report of 16 June 2010 responded to this in the following terms:
"In relation to the idea that the best predictor of behaviour is past behaviour, and Mrs Jeffries had not previously attempted suicide, suicides do occur in older age. I note from the Australian Bureau of Statistics that the highest age specific suicide death rate in 2008 for females was observed in the 50 to 54 year age group, with 8.6 deaths per 100,000, with a slightly lower number of suicides by females in the 55 to 59 year age group."
131Dr Skinner did not, however, take issue with the principal statement in Dr Phillips' report that past behaviour is the best predictor of future conduct.
132All three witnesses agreed that Mrs Jeffries had a history of depressive illness. They also all agreed that she had a number of intercurrent stressors which may have qualified as risk factors for suicide. The stressors were identified as a history of depressive illness, potential loss of job, probable impending financial difficulties, loss of an important relationship, impending surgery, relative isolation within the broader family system, divorced status and middle age. These factors came, of course, largely from the report of Dr Moroney: see [71] above.
133The witnesses accepted that Mrs Jeffries had demonstrated substantial psychological resilience over a number of years and was self-sufficient for a long period as well. They accepted that there were mounting stressors and therefore it was possible that her resilience could have given way. They expressed their conclusion in these cautious words: "It is difficult to state what impact these stressors may have had".
134The psychiatrists agreed that the acute stressors with which they had been briefed, including that Mrs Jeffries was deeply unhappy about the break-up with Mr Nott, contributed to her deteriorating mental state leading up to the collision. The psychiatrists also agreed to answers to two questions of central importance, as follows:
"Q14 - Is it probable that Mrs Jeffries was suffering from chronic depression at the time of her death on 4 May 2004?
We note evidence of depressive symptoms over a number of years which fluctuated in severity, and which were probably present in the lead up to her death.
Q15 - If Mrs Jeffries was suffering from chronic depression at the time of her death on 4 May 2004, did that depression adversely affect her capacity for decision making?
We note that depression is highly likely to affect a person's capacity to make decisions."
135The primary judge considered it important that, in the last answer, the psychiatrists did not express the view that Mrs Jeffries' capacity for decision-making was in fact adversely affected on 4 May 2004. His Honour was right to emphasise that.
136The psychiatrists were unable to agree whether the collision was the result of an intentional act of suicide. Each adhered to the opinion expressed in his or her individual report.
137One assumption of fact which the psychiatrists were asked to make was that the vehicle came to a stop close to the railway line but not on it, then moved slowly forwards when the train was about 200 metres away and then stopped squarely in the train's path and remained in that position for approximately eight seconds before the collision.
138On these facts, Dr Skinner and Dr Klug were of the view that it was likely, given the behaviour of the motor vehicle (including, of course, its being stationary for eight seconds in the path of the train), that the driver was committing suicide. Dr Phillips, although he was less certain of that fact, thought that it was possible that it may have been a conscious decision of the driver.
139Each psychiatrist accepted that, if the assumption that the vehicle was stationary for eight seconds in the middle of the track was removed and replaced by an assumption that it came to a stop near the crossing (perhaps at risk of being hit) and then proceeded slowly across the crossing without stopping again, that alternative behaviour of the vehicle was consistent with a possible misjudgment by the driver about the speed necessary to clear the crossing before the train arrived, and not necessarily demonstrative of an intentional suicidal act by the driver.
140The primary judge summed up this aspect of the matter thus (at [241]):
"In summary, the psychiatrists all agreed that if the vehicle did not stop squarely on the tracks for a discrete identifiable period of time, then the court was confronted with a choice between either a misjudgment or a possible suicide."
141The psychiatrists were unable to agree whether the evidence about Mrs Jeffries having a fairly normal day in Narrabri immediately before returning to Baan Baa and then driving her car across the level crossing was material in the consideration of whether she committed suicide. Dr Skinner and Dr Klug were of the view that, because Mrs Jeffries was a person who did not disclose much about her psychological state and generally did not want people to know how she was feeling, it was not possible to say whether her conduct on the day in question involved concealing of depressed thoughts yet continuing to perform or behave in a way that was seen to be normal, or whether she was in fact not suffering from any depressed thoughts.
142Dr Phillips on the other hand interpreted those signs (and, in particular, the fact that Mrs Jeffries was engaging in some planning for the future) as showing that she was not carrying any suicidal intent. His opinion was that this stood strongly against a conclusion of suicide. He said:
"The planning for the future, I understand, is the issue of having put clothes out on the bed in anticipation of going to have a surgical procedure and planning ... to meet with the person later in the day again. So I think there is a degree of positive forward planning there which I find hard to accept goes with the intent to imminently commit suicide.
...
So to my way of thinking, this was an ordinary day in a lady thinking about her future".
143All psychiatrists agreed that the accounts given by Mrs Allaway and Rodney Jeffries were important to take into account and had regard to them.
144All psychiatrists agreed that it was important also to take into account the contents of the letter written by Mrs Jeffries to Mr Nott. None expressed an opinion that it was a suicide note.
145I quote a summary of oral evidence stated by the primary judge (at [250]-[251]:
"In summary, during the oral evidence, Dr Skinner and Dr Klug placed importance on the recency and confluence of the intercurrent stressors. Dr Phillips placed importance on the fact that the depression observed over years was a relatively low level depression, that Mrs Jeffries was a quite resilient and capable personality without any signs of a frank personality disorder and, that in the days leading up to the collision, she was in a relatively happy state, and was engaged in forward looking and forward planning. Nevertheless, for Dr Phillips, it was a finely balanced case.
It is obvious that none of the psychiatrists can be certain about their opinion. Each of them recognised that it was necessary to obtain and analyse all of the facts and, against a background of knowledge and experience, to attempt to reach a conclusion. The fact that the psychiatrists varied in their final opinions, by regarding different factors with different weight, serves to corroborate the lack of any obvious conclusion about Mrs Jeffries' mental state at the time of the collision."
146Dr Phillips' opinion that Mrs Jeffries did not commit suicide was based on the following:
(a) she had relatively low risk factors for suicide on 4 May 2004;
(b) the clinical notes of Dr Moroney did not indicate that Mrs Jeffries suffered from a significant depression spectrum disorder at any time;
(c) her past behaviour indicated that she was capable of overcoming the various adversities in her life, which she had done over many years. This was the best predictor that she was going to do so in the future;
(d) her preparations, by way of laying her clothes out within her house for her visit to Inverell Hospital was inconsistent with a person about to commit suicide; and
(e) her general behaviour on the day of the accident was quite normal and did not indicate impending suicide.
147Dr Phillips took into account the comments which Mrs Jeffries had made to Robert Shields. Dr Phillips thought that the letter written to Mr Nott was an attempt at reconciliation rather than anything else. He placed great emphasis on the forward planning, including arrangements for Mrs Allaway to attend at the Inverell Hospital with Mrs Jeffries, and the discussions which Mrs Jeffries had had with her son on the afternoon of the collision. Finally, Dr Phillips pointed to the resilience over time of Mrs Jeffries to be able to cope psychologically without previously engaging in a self-harming or suicidal manner. He expressed his conclusion in this way:
"At the conclusion of this complex exercise, I am no closer to believing that Mrs Jeffries made a conscious decision to end her life by having her car run down by the CountryLink train on 4 May 2004. ... More probably, Mrs Jeffries was a strong and relatively resourceful person and was continuing (successfully) to accommodate to a recurrent adjustment disorder, and that the accident at the railway crossing had not been consciously planned in any manner".
148Dr Skinner expressed her conclusion in this way:
"In the light of Mrs Jeffries' medical history, information from witnesses, and evidence of psychosocial stressors present in her life, it is highly probable that her death was the result of an intentional act."
149That conclusion was based on the following principal factors:
(a) Mrs Jeffries suffered from a depressive disorder which became more severe in the months prior to her death which would adversely affect her capacity for decision-making;
(b) the importance of the intercurrent stressors;
(c) remarks made by Mrs Jeffries to other people which indicated that she had lost confidence and self-esteem and feared that others might ridicule her; and
(d) the opinion of Dr Moroney that he had been worried for at least a year before the accident that she might commit suicide due to her deepening depression and onset of paranoia about what was written in the medical records.
150Dr Klug expressed his opinion in the following terms:
"It is clear that Mrs Jeffries qualified for a number of high risk factors for suicide. She was fifty-five years of age, divorced, had undergone a number of recent relationship failures and was clearly very distressed about the breakdown of the relationship with Donald Nott. She experienced other interpersonal relationship conflicts at the time and, in particular, felt alienated from her former mother-in-law and sister-in-law. She suffered from various chronic physical illnesses. She expressed suicidal thoughts and, to one person, suicidal intent, in the period leading to her death. She was experiencing financial stress and possibly prospective unemployment. She was facing a poor level of personal achievement in the later years of her life and felt stigmatised by her ongoing depressive problems ...
....
The circumstances of her death are strongly suggestive of suicide. This is seriously considered in the OTSI Report which nevertheless concludes that it is uncertain whether the act was unintended or intended.
The fact that her death occurred in full view of Donald Nott at the nearby Baan Baa Railway Hotel, which has a full view of the crossing, cannot be dismissed as a motivating factor towards suicide.
The dissembling of her daughter, Tanya Jeffries about the letter to Donald Nott indicates that her daughter's subsequent refusal to allow a search of her mother's house for further documentation is particularly relevant".
151Dr Klug expressed his disagreement with Dr Phillips' view that Mrs Jeffries did not commit suicide. Dr Klug's principal bases included, the judge found, "material which had been provided to him, which was not ultimately proved separately in evidence", much of which the judge regarded as speculative. His Honour said (at [266]):
"By way of example, Dr Klug quotes and seems to rely upon, conclusions of others who are perhaps not as well qualified as some of the other witnesses with respect to the state of mind of Mrs Jeffries. He notes that Detective Sims describes the letter to Mr Nott as having been written by Mrs Jeffries '... in a desperate state of mind over her relationship with Nott ...'."
152The judge observed (also at [266]):
"This is not a conclusion with which I agree. The particular qualifications of Detective Sims to draw that conclusion are not apparent in the evidence, nor are the bases for that opinion exposed."
153The judge noted that Dr Klug also relied on a hearsay version of what Mr Houlihan said about the movement of the car and speculation of Ms Starr as to who had been driving the car about which she heard in or from a news report. Further and significant reservations about Dr Klug's report were expressed by his Honour thus (at [269]-[272]:
"More importantly, there are two particular factors which Dr Klug takes into account, and when expressing his conclusion, places them as important matters. The first of these is that Mrs Jeffries' death occurred in full view of Mr Nott who was in the nearby Baan Baa Railway Hotel. Dr Klug says that this cannot be dismissed as a motivating factor towards suicide. There is no evidence that Mr Nott visited the Railway Hotel at identified and regular times on each day or on any particular day. There is no evidence that Mrs Jeffries knew that on the day of the collision Mr Nott was in the hotel, or was likely to be in the hotel. There is simply no evidence to connect the presence of Mr Nott in the Railway Hotel, with Mrs Jeffries' knowledge of that fact, nor with the collision.
In my opinion, this factor relied upon by Dr Klug, is entirely speculative. I note that neither of the other two expert psychiatrists took this factor into account. Dr Phillips described it as speculation. I agree. This is not a basis to which regard can be had in considering Mrs Jeffries' conduct at the time of the collision.
Dr Klug also takes into account the conduct of Mrs Jeffries' daughter, Tanya, after her mother's death. He says that her refusal to allow a search of her mother's house for further documentation 'is particularly relevant'. There is an unstated premise in this comment which is that Ms Tanya Jeffries had been in her mother's house, had found one or more documents which she determined did not paint her mother in a positive light, and that accordingly, she had concealed those documents or else prevented the discovery of them.
There is also the possibility of a further unstated premise, namely, that there were other contents in the house, or the state of the house itself, which similarly may have indicated that Mrs Jeffries had committed suicide, which fact her daughter, Mr [sic] Tanya Jeffries, wished to conceal."
154The judge did not accept Dr Klug's opinion evidence. His reasons were cogent and his decision was correct.