Zaro v Regina

Zaro v Regina - [2009] NSWCCA 219 - NSWCCA 2009 case summary — Zoe

[14]

The Events of 16-17 April 2004 3 At the time of his death the deceased was aged 18 years. He was friends with the appellant who was also aged 18 years and who attended the same school. 4 On the evening of Friday 16 April 2004 the appellant, the deceased and three other young men were at the family home of the deceased in which the deceased was at the time living alone. They drank alcohol, played computer games and watched television. At about 9.20pm the appellant went into the deceased's bedroom and telephoned S.A. who was a close friend of H.S., his 16 year old girlfriend. The appellant would sometimes call S.A. as a means of communicating with H.S. because H.S.'s parents did not allow her to have a boyfriend or to go out at night. The relationship was kept secret from them. During the conversation, S.A. said to the appellant, "there's no way she would choose you because her dad will never accept this relationship because you're from a different culture to us". 5 The Crown's Summary of Trial described what happened thereafter as follows: "At some stage the appellant went back into the deceased's bedroom and spoke again on the telephone, to an unknown person. When he returned to the lounge room he appeared to be angry. He told the deceased to "stop acting stupid" and started slapping him. The deceased asked a number of times, "What's wrong?" and he said to the appellant, "Leave me alone, leave me alone". The appellant continued slapping the deceased and then placed him in a chokehold, grabbing him by the throat and choking him. This caused the deceased's tongue to protrude and foam to come from his mouth. J.K. and C.A. [two of the friends who were also present at the home] told the appellant to stop and they pulled him away from the deceased. The appellant told them not to worry, that he was joking. The deceased left the room and showered. When he returned to the lounge room the appellant started hitting him. The appellant pushed the deceased onto the lounge and started choking him. While he was doing so he punched the deceased in the leg and put his foot on his face. C.A. and J.K. tried to grab the appellant and pull him off the deceased. When they did so the appellant pushed them back and said, "Leave me alone, I'll hit youse". C.A. and J.K. walked outside and C.A. tried to telephone the appellant's brother but was unsuccessful in doing so. C.A. and J.K. went back inside the house and together they pulled the appellant off the deceased. The appellant told them to relax as he was joking. The deceased got up and said to the appellant, "What's wrong with you?" The appellant replied, "What are you talking about"? The deceased said, "What's wrong with you, why are you doing this, I feel like dying, you're killing me". The appellant replied, "I don't care". The deceased got up and walked around a corner. The appellant pushed him to the ground and started choking him. C.A. tried to pull the appellant off the deceased and when he could not do so he went outside and tried again to telephone the appellant's brother. The appellant called out to C.A. who told his cousin to stay outside while he went back into the house. When C.A. entered the house the deceased was lying on the floor in a corner near to the front door. The deceased was not moving and he did not appear to be breathing. C.A. said to the appellant, "What's wrong with you, what did you do this for?" The appellant said, "Who cares, my girlfriend dumped me, I'm sick of life, that's it, I want to kill myself". The appellant said, "Wait a sec". He walked into the kitchen and armed himself with a knife. C.A., who had followed the appellant into the kitchen, said to him, "What are you doing?" The appellant said, "I'm going to kill him and I'm going to kill myself". C.A. told the appellant to put the knife down and he tried to grab the knife from him. The appellant pointed the knife at C.A. and said, "Don't make me stab you". C.A. told the appellant that he was going home and that he was going to ring his, the appellant's, brother. C.A. walked out the front door. As he passed the deceased, who was still lying on the floor, he noticed that the deceased was breathing. The appellant followed C.A. and told him to come inside. The appellant dragged C.A. and J.K. through the front door. He got onto his knees. He said, "this is how life is" and he stabbed the deceased twice in the middle of his chest. C.A. grabbed J.K. and pushed him through the front door. The two ran a short distance up the road. When they were about two houses away C.A. heard the deceased screaming and begging for his life. The appellant came out of the house. He was carrying a knife and there was blood on his shirt. He walked towards C.A. and J.K. who had stopped when they heard the deceased scream. C.A. said to the appellant, "This is wrong, you shouldn't have done this, go to the police … Why did you bring us here, what did you do? We've all got lives and everything, we're only young kids, you ruined our lives, look what you did". The appellant replied, "Don't worry about it, you're not going to get in trouble, I did it". He also said, "I love youse. I'd never do this to youse". (references omitted) 6 Later that night the appellant's brother, Jamal Zaro, and three friends went to the deceased's house and saw his body lying on the floor. After one of them, Romeo Siffo, attempted without success, to find a pulse, the men left the house. The deceased's mother discovered the body of her son the next day. A post-mortem examination revealed that the deceased had suffered seven stab wounds and a penetrating hole to his chest.

[16]

The Appellant's Case at Trial 8 The appellant gave evidence. He professed to have no memory of stabbing the deceased and no memory of anything that happened on 16 or 17 April 2004. 9 Dr Allnutt, a forensic psychiatrist, gave evidence that he visited the appellant in gaol and that the appellant had told him that on the evening in question he consumed up to seven cups of vodka and lemonade and a substantial amount of wine, smoked four or five cones of cannabis and took two ecstasy tablets before leaving home and that subsequently, at the deceased's house, he had taken a Rohypnol tablet to calm himself down. Dr Allnutt thought that it was likely that the appellant was intoxicated at the time of the offence, disinhibited and more vulnerable to engaging in aggressive behaviour and that it was possible that the appellant experienced a brief psychosis secondary to the use of the intoxicating substances. He was of the opinion that there was insufficient evidence to conclude that the appellant lacked the capacity to know the nature and quality of his actions and to judge that they were wrong. 10 Mr Stephen Woods, a clinical forensic psychologist and an adjunct associate professor, gave evidence to the following effect: - The appellant had a vulnerability to psychosis as a result, first, of exposure to trauma at a particularly vulnerable age, secondly, his use and abuse of drugs and alcohol at a vulnerable age, thirdly, his level of intellectual functioning and, fourthly, his social immaturity. - At the time of the stabbing, the appellant was suffering from a psychotic episode that was substance induced. That psychosis was a disease of the mind. - At the time of the stabbing, the appellant did not understand the ramifications of his actions and was unable to appreciate that what he was doing was wrong. - The appellant had a continuing mental disorder of a psychotic nature which was sometimes in remission and sometimes not. The drugs and alcohol consumed on the night in question triggered its onset. - It was possible that the psychotic episode might have occurred even if the appellant had not consumed any drugs or alcohol on the night. The Crown Case in Reply 11 The Crown called Dr Wong, a forensic psychiatrist, in its case in reply. He gave evidence to the following effect: - There was no evidence that the appellant was suffering from any psychiatric disorder at the time of the stabbing. - There was no evidence that the appellant was suffering from psychosis at the time of the stabbing, or before or after it. - There was no evidence that at the time of the stabbing the appellant was suffering from a disease of the mind. - There was no evidence that at the time of the stabbing the appellant was suffering from an abnormality of the mind arising from an underlying condition, was not capable of understanding the surrounding events or was not capable of judging whether his actions were right or wrong. - There was no evidence that the appellant was severely intoxicated or affected by drugs at the time of the stabbing.

[18]

35 There are nine children in his family and he is the seventh eldest. He has no prior criminal record. He had a close relationship with his parents and siblings. He worked on occasions as a painter with a brother. There is nothing in his upbringing or relationship with his parents that appears of significance. There was some suggestion that the offender was suffering from post-traumatic stress disorder as a result of what he had witnessed in Baghdad. There is little to support that diagnosis. It is not one that was made by either of the psychiatrists that examined the offender. In any event it is of little significance. I doubt that his use of drugs had anything to do with his early life experiences. On his own evidence his use of ecstasy was for recreational purposes. There is no suggestion otherwise that he was suffering the effects of any personality disorder prior to the commission of the offence." 14 His Honour noted that it was open to him to take into account, in sentencing the appellant, any mental disorder from which he might find that the appellant suffered at the time of the offence or at the date of sentence. He said however that he was not satisfied that the appellant suffered from any mental abnormality at either date. He accepted that the appellant was intoxicated by both alcohol and drugs at the time of the stabbing and that it was the effect of those substances upon him that principally caused him to act as he did. He believed that the appellant over-reacted to a concern about his relationship with his girlfriend and "became angry towards the deceased who did not show him or his personal problems sufficient respect". 15 Howie J went on to say: "41 I have no doubt that this behaviour was out of character and a result of alcohol, drugs and emotional turmoil. I do not believe that the offender is generally aggressive at least not with his friends. I do not accept that his use of drugs and alcohol was a matter of mitigation apart from indicating that it is relevant to consider his prospects of rehabilitation and to explain his behaviour. Although defence counsel put to me that I should treat his use of drugs as self-medication, I do not accept that such a submission significantly assists the offender: see R v SY [2003] NSWCCA 291. However, it is not an aggravating factor in that there is no evidence that the offender had ever before acted violently as a result of his ingestion of drugs and alcohol.

[22]

Ground 1: The trial miscarried because Dr Wong was permitted to give evidence of opinions which were partly based on inadmissible material. 18 This ground was based upon the statement made by Dr Wong, in his evidence in chief, which is shown in bold in the following extract from the transcript: "Q. Mr Woods has said that when the accused stabbed the deceased, that the accused would not have known that he was taking a person's life, that it was the finish of life for him. What do you say about that doctor? A. I don't think I can agree with that. In fact, prior to the stabbing, he told [C.A.] what he was going to do, that was, to stab him and kill him, and subsequently, he told Ahmet - I'll just go back a little bit. What he told [C.A.] was that, 'I'm going to kill him and then I'm going to kill myself.' Subsequently, he told Jamal and Romeo that, 'I didn't feel satisfied just beating him up, I wanted to kill -' Q. He told Jamal and Romeo that he did it. Understand? A. Yes. HIS HONOUR: Just a moment. Is he reading from a statement that's not in evidence? CROWN PROSECUTOR: That's right. I want to get away from this" (emphasis added). 19 Neither the appellant nor his brother Jamal gave evidence at the trial that the appellant made the emboldened statement referred to by Dr Wong. They did not however give evidence inconsistent with the statement having been made by the appellant. Their evidence revealed an absence of any relevant recollection. The Crown's contention on appeal was that evidence of the statement was, however, given by Romeo Siffo and that this formed a sufficient basis for what was said by Dr Wong. The Crown also submitted that in any event the trial judge's question as to whether the material was in evidence and the Crown Prosecutor's indication that it was not, was a sufficient indication to the jury that it was to be disregarded. As to this latter submission, it should be noted that the trial judge told the jury repeatedly, both during his remarks at the commencement of the trial and during his summing-up, that it must base its verdict upon, and take into account, only the evidence at the trial. 20 When Romeo Siffo came to give evidence of what occurred on the night in question, he was allowed, with the consent of the appellant, to refresh his memory from what was described as a transcript of his interview with the police. The following evidence was given in relation to one of the questions in the Record of Interview: "Q. The question at 428? A. 428. Q. 428? A. Okay. Q. You said, "What do you mean he didn't feel enough?" He said, "I didn't feel enough, I beat him up and he didn't die in my hands" so he said, "I pulled the knife and started stabbing him". Do you recall saying that to the police? A. Probably. I don't remember this." 21 Subsequently, Mr Siffo accepted that what the Record of Interview said was what he told the police on 19 April 2004. However, he did not acknowledge that what he told the police then was correct. He said in evidence, "I probably just wanted to get out of there and said many things" and "whatever I tell you here is a hundred percent true but whatever I said there, I'm not one hundred percent sure". 22 When the trial judge noted that the Crown Prosecutor's questions amounted to cross-examination, his Honour was told that leave for the Crown to cross-examine its own witness was not opposed. He accordingly granted that leave. 23 The following further evidence in chief was then given: "Q. 'What do you mean he didn't feel enough?' And you have said, 'He said, 'I didn't feel enough, I beat him up and he didn't die in my hands' so he said, 'I pulled the knife and started stabbing him". That's what you told the police on that particular morning? A. Yeah, because it's in here. Q. Is that what the man said when you were with Jamal at the time? A. I just swore on the Bible and I won't lie now and I don't remember a thing about this particular thing. My memory is there, the whole night, but this conversation, I have no clue so I can't just say "yes". I don't remember nothing about what Jamal said to Jalal except he was arguing with him and I sat in my car and I called my girlfriend, she picked me up. They were arguing here but exact words, I don't remember a thing, no." 24 Shortly thereafter Counsel for the appellant commenced to cross-examine Mr Siffo and the following evidence was given: "Q. Have a look at the transcript [of the police interview] page 58. The question at 429 was, "Can you remember anything else he was saying?" And the answer you gave the police on 18 April 2004 is recorded as being this, "That's only thing I remember, that he, he said, 'I felt like killing him and I start hanging him and I start doing all these things'". Did you follow that as I read it? A. Yeah, I'm following it. Q. Do you remember answering like that to the police in the interview? A. No, I don't. Q. And the police then asked the next question, "What do you mean hanging?" And you're recorded as answering this way, "He start shaking him and I think he punched him and he said but this guy never died. He said, 'I start choking him for 20 minutes, nothing happened. Then I start- I had a knife, got rid of somewhere, start stabbing him". Did you follow that answer? A. Yeah." 25 The cross-examination continued, with further reference being made to the Record of Interview. The effect of the cross-examination, as of the evidence in chief, was that Mr Siffo accepted that he had made to the police the statements appearing in the Record of Interview but that he did not in evidence confirm their accuracy. 26 The statements which Mr Siffo told the police had been made by the appellant were to the same effect as that referred to by Dr Wong, namely, that the appellant did not feel satisfied just beating the deceased up, he wanted to kill him. The fact that the contents of the Record of Interview were not adopted by Mr Siffo in the witness box rendered the evidence of what he had said in that Record of Interview of doubtful utility. The Record of Interview was not in evidence and Mr Siffo's evidence of what he had said to the police on 19 April 2004, as recorded in the Record of Interview, was hearsay. 27 Nevertheless, through the evidence of Mr Siffo, the jury became aware of what Mr Siffo had told the police that the appellant had said. This occurred without objection by Counsel for the appellant and, by his agreement to the Crown Prosecutor cross-examining Mr Siffo upon the basis of the Record of Interview, Counsel for the appellant facilitated this occurring. Indeed, as the passage quoted above reveals, Counsel for the appellant continued the cross-examination of Mr Siffo on the Record of Interview in the same fashion and on the same subject matter. No doubt, the experienced Counsel for the appellant did this for good and proper reasons. With some force, the Crown, in its submissions on appeal, described defence Counsel's approach to the evidence of Mr Siffo as "aimed at demonstrating that the appellant's recounting of his vicious attack upon his friend was so bizarre as to be reflective of mental illness". This seems to me to be a sensible explanation for what occurred and to reflect a calculated tactical decision made by the defence. 28 It is understandable in these circumstances that Counsel for the appellant did not seek any direction from the trial judge in relation to the statement allegedly made by the appellant to Jamal and Romeo, when it was subsequently referred to by Dr Wong. The reference by Dr Wong to that statement was not inconsistent with what can be inferred to have been the appellant's Counsel's approach to the conduct of the defence. 29 The reference by Dr Wong to the statement by the appellant to Jamal and Romeo could not therefore be regarded as prejudicial to the interests of the accused as it was material to the same effect as that which had been put before the jury, without objection, through the evidence of Mr Siffo. In any event, the trial judge's intervention in the middle of Dr Wong's evidence, and the Crown Prosecutor's response, made it clear to the jury that the statement was not in evidence. When taken with his Honour's repeated directions to the jury to have regard only to the evidence in the case, the exchange was sufficient to ensure that it was not taken into account. Dr Wong's evidence did not, therefore, result in any unfair prejudice to the appellant and there was no miscarriage of justice arising out of what occurred.

[28]

(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. … (8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 33 The defence case on substantial impairment under s 23A was dependent upon the evidence of Mr Woods. In the appellant's submissions on appeal, Mr Woods' evidence was, not inaccurately, described in the following way: "… Mr Woods gave evidence that the appellant was suffering from a drug induced psychotic episode at the material time, which substantially impaired the appellant's mental processes so that the appellant was incapable of understanding the nature, quality and the wrongfulness of his acts. According to Mr Woods, the substance induced psychotic episode was an "abnormality of mind", while the appellant's vulnerability to psychosis and his continuing, developing psychosis was an underlying condition. The appellant's consumption of drugs and alcohol prior to the stabbing was regarded by the witness as a "trigger" or "impetus" for the psychotic episode. Mr Woods gave evidence that the drug induced psychotic episode was distinct from the mere disinhibiting effects of intoxication. In this regard, Mr Woods emphasised the extremity of the appellant's conduct and the focussed nature of his rage (as distinct from [the] generalised or unfocussed nature of intoxication induced rages)" (References omitted) (see also paragraph [10] above). 34 The principal point taken by the appellant is that the trial judge's directions (the substance of which are accurately referred to in these grounds of appeal) did not allow for the fact that in Mr Woods' opinion there was an "abnormality of mind" which was separate from the direct effects of self-induced intoxication, albeit that that "abnormality of mind" was triggered by the intoxication. The appellant's submissions sought to distinguish cases where "an accused's substantial impairment is the direct result of self-induced intoxication (ie where the abnormality of mind is co-extensive with or indistinguishable from the state of intoxication)". R v Jones (1986) 22 A Crim R 42, R v Ryan (1995) 90 A Crim R 191 and R v De Souza (1997) 41 NSWLR 656 were referred to. 35 In my view, this submission should be rejected. Section 23A(3) requires "the effects of [the] self-induced intoxication … to be disregarded". If the appellant experienced a psychotic episode it was, on Mr Woods' evidence, which was the only expert evidence of possible assistance to the appellant on this topic, triggered by the appellant's consumption of drugs and alcohol. It was plainly an "effect" of the appellant's consumption of drugs and alcohol which was found by the trial judge to have given rise to intoxication. Neither the text of the section, nor any matter of policy to which the appellant was able to point, suggests that the operation of s 23A(3) is limited in the manner for which he contended. 36 The present bears a similarity to R v Jones, a decision to which the appellant referred in his submissions. In that case, there was evidence that the appellant suffered from a slight degree of brain damage, resulting from long standing heavy alcohol consumption, and from either hypoglycaemia or hypoglycaemic disease. The medical evidence was that an individual with those conditions could become irresponsible in consequence of consumption of a substantial quantity of alcohol similar to the quantity which the appellant had consumed on the day of the offence. Section 23A was then in a different form: it required an abnormality of mind to arise from one of the limited categories specified (not including a temporary state of alcoholic or narcotic intoxication) for a defence of diminished responsibility to be available. Street CJ (with whom Slattery CJ at CL and Carruthers J agreed) said: "The abnormality [of mind] was due to his state of intoxication at the time. He was predisposed to abnormality by his pre-existing condition. But the abnormality itself became manifest only as a consequence of his being intoxicated. When not intoxicated, he was not within the scope of s 23A(1). When intoxicated he became somewhat irresponsible but that in itself does not permit a finding of diminished responsibility under the statute. In such a situation it is not open to a jury to conclude that the requisite impairment of mental responsibility was due to pre-existing abnormality in the appellant" (at 44). 37 This was not, as the appellant here contended, simply a case of an abnormality of mind indistinguishable from the state of intoxication. It was a case where the abnormality of mind to which the appellant was predisposed by his pre-existing condition became manifest as a result of intoxication. This was what, according to Mr Woods' approach, occurred in the present case. R v Jones in my view provides support for the Crown's contentions, notwithstanding the differences in the applicable legislation. 38 In my view, these grounds of appeal must fail.

[29]

Ground 5: The learned trial judge erred by directing the jury that the appellant had to prove on the balance of probabilities that he was suffering from a form of psychosis after the stabbing. 39 This ground of appeal relates to the following portion of the summing-up, which dealt with the partial defence under s 23A of the Crimes Act: "You would have to be satisfied that it was more likely than not that the accused had been suffering a form of psychosis with delusions and hallucinations over a period before the offence, at the time of the offence and after the stabbing . That is the underlying cause" (emphasis added; page 77). 40 This passage immediately followed the reference by the trial judge to the need, if a partial defence of substantial impairment by abnormality of mind were to succeed, to find that the appellant suffered from an abnormality of mind "that was a result of an underlying cause". His Honour went on to say that "as I understand the evidence of Mr Woods, in his view the underlying cause of the abnormality of mind was this continuing state of psychosis under which the accused was suffering". 41 The relevant part of the written directions provided by the trial judge to the jury referred to proof by the appellant of "an underlying condition, in this case being the accused's drug induced psychosis present before and/or after the night of the stabbing" (emphasis added). 42 The appellant contends that it was wrong for the trial judge to tell the jury that the appellant was required to prove "that the underlying condition existed or persisted after the stabbing" and that this direction had the effect of imposing an additional, and unwarranted, burden of proof upon the appellant. 43 In my view, when seen in the context in which it appeared in the summing-up and of the appellant's evidence led through Mr Woods to support his partial defence under s 23A of the Crimes Act, the trial judge's reference to a form of psychosis continuing "after the stabbing" was not inappropriate. The effect of Mr Woods' evidence, as recognised in the passage from the appellant's written submissions quoted in [33] above, was that the appellant had a "continuing developing psychosis which constituted an underlying condition". Thus, one part of Mr Woods' evidence was in the following terms: "Q. So it was a continuing disorder of the mind, a disease of the mind which was psychosis and that this particular episode of the psychosis was triggered by drugs. But the psychosis, the disease of the mind was not temporal, was not fleeting. The episode might have been fleeting on this night but not the disease of the mind. Am I right ? A. Very much so" (at transcript page 548). 44 In my view, his Honour's reference in the summing-up to the psychosis continuing after the stabbing was intended to, and did (quite properly), emphasise to the jury that the "underlying condition" required to be proved and the subject of Mr Woods' evidence was a continuing one, distinct from the psychotic episode experienced on the night in question. As the evidence of Mr Woods just quoted indicated, his view was that "the episode might have been fleeting on this night but not the disease of the mind [that is, the continuing disorder of the mind]". 45 I do not consider that there was any unfairness in the description given to the jury of what it was required to find for the partial defence to succeed.

[30]

Ground 6: The learned trial judge erred in his directions to the jury on the consequences of a manslaughter conviction. 46 The appellant accepted that for the purpose of the jury considering whether the appellant's "impairment was so substantial as to warrant liability for murder being reduced to manslaughter" (see s 23A(1)(b)), it was necessary for it to be instructed as to the differences between murder and manslaughter. The relevant part of the summing-up was in the following terms: "Remember I told you that murder and manslaughter are two criminal offences. They both are concerned with unlawful homicide, but that murder is of course a much more serious offence. It is the most serious offence we have and manslaughter is less serious. People are sometimes charged with manslaughter over motor traffic accidents. There are different types of manslaughters. You have two here; you have unlawful act manslaughter and you have manslaughter by substantial impairment. Manslaughter carries a different penalty to murder under the Act. A person who was convicted of manslaughter would more than likely get a much lighter sentence than somebody who was convicted of murder. That is because the culpability of the person who is guilty of murder is much greater than the culpability of a person who is convicted of manslaughter. One reason of course is because of the difference in intent to kill. Another one is because the person's criminal responsibility has been reduced by reason of his mental condition at the time of the act. One of the matters that we take into account in sentencing is what is called retribution. It is often termed an eye for an eye or a tooth for a tooth. I think in fact the expression is you can take no more than an eye for an eye or a tooth for a tooth, in other words, it is a form of proportionality. One of the issues you are looking at in sentencing is the punishment, the degree of denunciation, the degree of retribution, the price one has to pay for the crime committed. Of course, if the person's criminal responsibility is less by reason of some factor such as in this case, a lack of a capacity to understand what he is doing or to understand that it is right or wrong and to control himself, then parliament has recognised that reduced criminal responsibility by making available a defence and resulting in a charge of manslaughter. So that is why the defence is there. It is a recognition that people do act with different mental states when committing an offence of murder and that there are some situations, again prescribed by the Act, where that person's criminal responsibility is reduced by their reduced mental state, that is, their reduced capacity. That should not only be seen in a reduction in the sentence but also in a less serious offence" (pages 74-5). 47 The appellant complained of the description of murder as a "much more serious offence", the reference to manslaughter in relation to motor traffic accidents and the statements that a person convicted of manslaughter would "more than likely get a much lighter sentence than somebody who was convicted of murder" and that the "culpability of the person who is convicted of murder is much greater than the culpability of the person who is convicted of manslaughter". 48 The appellant made the following submission: "It is submitted that these remarks were not accurate. Due to the protean nature of the manslaughter offence, the range of sentences given for manslaughter is unusually extensive. Manslaughter sentences can equate or even exceed sentences given for murder. The repeated use of the word "much" understated the seriousness of a conviction for manslaughter. The reference to traffic accidents could only have left the jury with the impression that a manslaughter conviction was appropriate for a relatively trivial class of offences. The direction implied that a manslaughter conviction was quite inappropriate in the present case, because the appellant's culpability could never reasonably be likened to the blameworthiness arising from an accidental act". 49 The appellant also contended that it was inappropriate for a trial judge to introduce the concept of retribution and that "the direction implied, or at least carried the substantial risk of an implication, that the imperative of 'an eye for an eye' could never be satisfied by a conviction for manslaughter, which would result in a 'much lighter sentence', appropriate in cases involving the accidental death of another". The appellant submitted that there was a substantial risk that the directions had had the effect of "compelling the jury to convict for murder". 50 I do not agree with these submissions. There is no single, correct form of words which must be used to explain to a jury concepts such as the ones in question. There is no obligation to follow the wording in the Criminal Trials Court Bench Book (R v Forbes (2005) 160 A Crim R 1 at [72] - [76]). Different judges will inevitably use different language. As Gleeson CJ said in Doggett v R [2001] HCA 46; (2001) 208 CLR 343, "[d]irections are not ritualistic formularies" (at [2]). None of what the trial judge said was in my view inaccurate and the degree of emphasis he gave to the differences between murder and manslaughter and his comments about retribution did not in my view fall outside the range of what was acceptable. The fact that no complaint about the directions was made by the experienced Counsel who appeared for the appellant is a significant indication that in the atmosphere of the trial the directions could not be regarded as unfairly prejudicial to the appellant's defences. I do not consider, as the appellant contends, that there was a risk that the directions had "the effect of compelling the jury to convict for murder". On the contrary, the trial judge fairly put before the jury the bases upon which verdicts of guilty of murder or manslaughter or an acquittal would be appropriate.

[32]

Ground 8: The learned trial judge erred by failing to give the jury a clear direction that the appellant was only required to prove that one of the prescribed capacities had been substantially impaired. 51 Section 23A(1)(a) of the Crimes Act refers to substantial impairment of a person's "capacity to understand events", to "judge whether the person's actions were right or wrong" or to "control himself or herself". 52 The trial judge's Written Directions and Summing-up omitted reference to the first of these, the appellant's capacity to understand events. The directions as to the defence of mental illness left for the jury the issue of whether the appellant knew the nature and quality of his act. The trial judge said that "in the present case the evidence of Mr Woods is that the accused would have known that he was stabbing a human being but would not have been aware of the consequences of his act and in particular that it could have resulted in the death of the deceased" (Written Directions page 6). If this evidence of Mr Woods were rejected (as the subsequent jury verdict of guilty of murder indicates it must have been), there would be little room for the view, relevant to s 23A of the Crimes Act, that the appellant's "capacity to understand events" was substantially impaired at the time of the stabbing. 53 It is not surprising that in these circumstances draft written directions prepared by the trial judge did not refer to this limb of s 23A. Those draft directions were the subject of discussion with Counsel, during which the appellant's Counsel, made suggestions as to changes. He did not suggest that the additional limb be referred to. 54 The Crown submitted on appeal that there were "sound forensic reasons why defence Counsel would not have wanted that limb left to the jury: it would only have served to have highlighted how weak it was to have risked contaminating the other limbs". This is a sensible explanation for what occurred as the appellant's position upon this limb was in fact weak. There was no error in the judge not leaving that limb to the jury, particularly when the appellant's counsel, seemingly for good reason, acquiesced in that occurring. 55 There is also in my view no substance in ground 8 referred to above as the directions to the jury, both written and oral, made it clear that it was only necessary for the appellant to show substantial impairment of one of the two capacities referred to. 56 Ground 9: The direction on whether the substantial impairment warranted liability for murder being reduced to manslaughter involved error. 57 Counsel for the appellant submitted that the focus of a direction concerning s 23A(1)(b) (see [32] above) should be on the degree of impairment experienced by an accused. He submitted that the direction given involved error because it invited the jury "to engage in a vaguely defined process of reasoning, using amorphous concepts like 'value judgment' and the 'appropriateness' of one verdict over another". 58 I do not accept these submissions. In his description of the differences between murder and manslaughter (see under ground 8 above), the trial judge referred to the partial defence of substantial impairment as involving "an evaluation by you of the accused's culpability if you find those things have been proved" and he referred to the culpability for murder being much greater than that for manslaughter. In this context, his references to a "value judgment" and the "appropriateness" of one verdict over another did not misstate what the jury was required to consider, nor did they leave the jury uncertain as to what it had to decide.

[35]

Ground 12: The learned trial judge erred by directing the jury that residual concerns about the appellant's mental state could be addressed on sentence. 62 Part of the summing up was in the following terms: "So all I am pointing out to you is that, at the end of the day, there may be some facts that are not resolved in your own mind or resolved on the evidence, and one of them might be: Why did the accused stab the deceased? So, for example, if you are not satisfied, on the balance of probabilities that he was mentally ill, if you are not satisfied on the balance of probabilities that he had this mental impairment, then it may be that you cannot resolve that issue. You do not know because we cannot understand every facet of human behaviour. So at the end of the day there can be this question remaining that seems so important but yet cannot be answered. That is not your concern. You have to approach this matter in the way that you are required to, and if at the end of the day there is an issue, such as the accused's mental state, not resolved, so be it, and that may have to be resolved in some other proceedings." 63 The appellant contended that this direction "created the risk that if members of the jury found the task of evaluating the defences too burdensome, they could return verdicts of guilty safe in the knowledge that questions about the appellant's mental state could be adequately dealt with on sentence". I agree with the Crown's response to this submission that the comments did not deflect the jury from its proper task. They simply served the purpose of dealing with a matter that may have been one of natural curiosity to the jury and may otherwise have been the subject of distracting speculation by it. 64 In light of the clear directions given by the trial judge as to the elements necessary to establish the defence of mental illness and the partial defence of substantial impairment, there was no unfairness to the appellant in the judge's reference to "some other proceedings" which was plainly a reference to a possible sentencing hearing. I do not consider that what he said detracted from the clear directions that he gave to the jury as to their role in determining the two defences.

[37]

86 Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence. (at [85-86]). 66 In his Remarks on Sentence, Howie J reached the following conclusions on this issue: "43 … In my opinion the murder was above mid-range seriousness. This is notwithstanding the submission by the Crown that it was mid-range. The deceased was lying on the floor unable to defend himself after having been repeatedly assaulted by the offender. The offender had seriously tried to throttle the deceased at one stage having his foot on his throat. The attacks continued notwithstanding that the deceased had taken himself away to have a shower and the efforts of the other two youths to have the offender desist. Finally when the deceased was in no position to defend himself the offender obtained a knife for the express purpose of killing him and threatened [C.A.] against interfering. He then struck the deceased a number of blows with the knife" (Judgment [43]). 67 The appellant (for consistency I will continue to refer to the offender as the appellant notwithstanding that in respect of his sentence he needs leave to appeal) complained that the judge erred in concluding that the offence was above mid-range seriousness but was not able to point to any error of principle in his approach. In my view, his Honour's views were within the scope of reasonable views that could be taken about the objective seriousness of the offence. In these circumstances, this ground of appeal must fail. The appellant has not shown that the classification adopted by the judge was not open to him, as would be necessary to satisfy the principles stated in Mulato v R [2006] NSWCCA 282 as follows: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour" (at [37]).

[39]

Sentencing Ground 3: Special circumstances 69 The appellant submitted that the sentencing judge should have found that there were "special circumstances" within the meaning of s 44(2) of the Act. Such a finding would have warranted the judge departing from the rule stated in the section that the balance of the term of a sentence must not exceed one-third of the non-parole period for the sentence. 70 Whilst the judge did not find special circumstances for the purposes of s 44(2), he did consider that departure from the standard non-parole period was warranted because of what he described as the "considerable weight" which he gave to the youth of the appellant. The judge went on to say: "There is nothing in the present case that disentitles him to the greatest allowance that can be made for his subjective factors notwithstanding that the objective circumstances of the offence was more than mid-range. To the contrary he is entitled to considerable allowance for the fact that other than for this offending he appears to have overcome his earlier difficulties and adapted well into this society" (at [52]). 71 His reasons for not however departing from the statutory relationship between the non-parole period and the balance of the term were expressed as follows: "53 There are matters that might amount to special circumstances. But the overall sentence in this case must be of such a length that the statutory relationship between the non-parole period and the balance of term will be adequate to address any needs he may have for counselling or assistance on release. I indicate that I have taken into account his youth in reducing the standard non-parole period notwithstanding the seriousness of the murder." ([53]). 72 The appellant submits that there were special circumstances because of a "combination of factors such as the appellant's age, that it is his first prison sentence, the traumatic events he witnessed as a child and the lengthy period he will serve in prison". These are matters of which his Honour was cognisant. He referred in his description of the subjective factors relating to the appellant to his general good character and to his traumatic background growing up in a war-affected area and subsequently as a refugee. As indicated in [15-16] above, the appellant's subjective factors, particularly his youth, were accorded significant weight in his Honour's conclusions as to the appropriate non-parole period. His view that in all the circumstances it was not appropriate to depart from the statutory relationship between the non-parole period and the balance of term was open to him. This ground must therefore also fail.

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