Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Adanguidi v R [2024] NSWCCA 82 Hearing dates: 9 May 2023 – 11 May 2023 Date of orders: 14 June 2024 Decision date: 14 June 2024 Before: Garling, Fagan, McNaughton JJ Decision: Appeal dismissed Catchwords: CRIME – Appeal and Reviews – Referral under Part 7 Crimes (Appeal and Review) Act 2001 – Court's own motion – Dealt with on appeal. CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence at the appellant's trial – Whether such additional evidence is capable of establishing a reasonable doubt about the appellant's guilt. CRIME – Appeals – Appeal against sentence – Where three life sentences were imposed – Whether additional psychiatric evidence heard on appeal was fresh evidence or new evidence – Whether a miscarriage of justice occurred due to the absence of the additional psychiatric evidence in the appellant's sentencing proceedings – Whether such additional evidence, if available to the sentencing Judge, would have resulted in a lesser sentence. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442 EC v R [2023] NSWCCA 66 Lawless v The Queen ; [1979] HCA 49; (1979) 142 CLR 659 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259; MRW v R [2011] NSWCCA 260 R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Bikic [2002] NSWCCA 227 R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Porter [1933] HCA 1; (1933) 55 CLR 182 Ratten v The Queen (1974) 131 CLR 510 R v Crespin Adanguidi [2005] NSWSC 519 Sodeman v R [1936] HCA 75; (1936) 55CLR 192 Xie v R [2021] NSWCCA 1 Texts Cited: Not Applicable Category: Principal judgment Parties: Crespin Adanguidi (Appellant) The Crown Representation: Counsel: B Rigg SC / S De Brennan (Appellant) G Newton SC / C Akthar (Crown) Solicitors: Hal Jon Ginges & Company (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2003/6089 Publication restriction: Not Applicable Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Division Citation: [2022] NSWSC 442 Date of Decision: 14 April 2022 Before: Dhanji J File Number(s): 2003/6089 HEADNOTE [This headnote is not to be read as part of the judgment] On 14 April 2005, Crespin Adanguidi (the appellant) was convicted by a jury of three counts of murder, which occurred in the early hours of 1 February 2003. On 3 June 2005, the appellant was sentenced to life imprisonment with respect to each count. On the evening of 31 January 2003, the appellant invited his friend Mr Raymond Shen to his apartment. After spending some time together in the appellant's apartment, the appellant took out a pistol, struck Mr Shen on the back of his head, and gagged and bound Mr Shen. Over several hours, the appellant made demands for money and valuable items from Mr Shen. After some time, the appellant left his apartment, leaving Mr Shen bound and gagged inside, and stole Mr Shen's car and the keys to his apartment. The appellant went to Mr Shen's apartment building in Rockdale. The appellant used Mr Shen's keys to get inside. Inside the apartment, while the appellant was stealing money and valuable property, he was confronted by Mr Shen's son, Mr Pin Shen. The appellant shot Mr Pin Shen through the head at close range, and he died immediately. Mr Shen's daughter, Ms Christy Bo Shen, attempted to call triple 0. The appellant shot Ms Christy Bo Shen through the back of the head from close range. She died immediately. The appellant attacked Mr Shen's wife, Ms Shiquin Zhu ("Mrs Shen"), with the pistol however he did not shoot her. The appellant physically assaulted Mrs Shen over some time, eventually beating her to death. The appellant left the apartment and stored the stolen goods and incriminating items at an acquaintance's apartment. The appellant was arrested later that morning after Mr Shen escaped from the appellant's apartment and notified police. Following his conviction in a trial by jury and his sentences of life imprisonment, in 2006 the appellant was granted leave to appeal against his sentence in the Court of Criminal Appeal, however his appeal was dismissed. In 2022, the appellant made an application to the Supreme Court pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. Dhanji J refused the application for an inquiry into the appellant's convictions and/or sentences, however referred the case to the Court of Criminal Appeal to be dealt with as an appeal. The appeal was heard over a number of days in May 2023. The Court heard additional psychiatric evidence on the basis that the Court would find that such evidence was fresh evidence, or new evidence, which was permissible for it to consider and deal with on the appeal. The appellant sought to appeal against his conviction on two grounds as follows: Ground 1: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence at the appellant's trial ("the conviction ground"). Ground 2: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence in the appellant's sentencing proceedings ("the sentencing ground"). The Court (per Garling, Fagan and McNaughton JJ) held, dismissing the appeal: As to Ground 1 (the Conviction Ground): Regarding the Partial Defence of Substantial Impairment: 1. The research that was conducted after the trial constitutes fresh evidence but does not support the partial defence of substantial impairment. A finding of a miscarriage of justice cannot be supported by reason that this research was not available for tender in 2005. The changed opinions of a psychiatrist are new evidence rather than fresh. Taken together, this evidence is not sufficiently cogent to persuade the Court that the appellant has been wrongly convicted or denied a fair chance of acquittal [285]. Regarding the Mental Illness Defence: 1. The post-trial evidence is not capable of proving that the appellant's mental disorder had the still more deleterious effect that would have to be proved on the balance of probabilities to sustain the mental health defence [286]. 2. The Court did not find any basis for the defence of mental illness to be established, nor that the additional evidence is new, nor that there has been a miscarriage of justice [287]. As to Ground 2 (the Sentencing Ground): 1. The case and the sentences imposed fell into a very small cohort of sentences where such was the heinousness of the conduct and the inherent criminality that the evidence with respect to the subjective factors of the appellant was simply irrelevant and properly to be disregarded, or given very little weight [319]. 2. Notwithstanding the existence of fresh evidence which is credible or plausible, there is no possibility that the sentencing Judge, acting reasonably, would have imposed a different and lesser sentence for each of the offences [321]. JUDGMENT 1. THE COURT: On 14 April 2005, after a trial before a jury at which Barr J presided, the appellant, Crespin Adanguidi, was found guilty of three counts of murder, which occurred in the early hours of 1 February 2003. 2. The victims of the murders were a mother, Shiquin Zhu ("Mrs Shen"), and her children Pin Shen, a 27 year old male, and Christy Bo Shen, a 23 year old female. The three victims were respectively the wife and two children of Mr Raymond Shen, who was known to the appellant. The Appeal 1. This appeal comes before the Court as a result of a decision of Dhanji J on 14 April 2022. 2. The decision of Dhanji J (in Application by Crespin Adanguidi pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 442) dealt with an application by the appellant pursuant to s 78 of the Crimes (Appeal and Review) Act 2001. 3. Having received the application pursuant to that section, and having considered the submissions of the appellant and the Attorney-General of NSW, his Honour made the following relevant orders: "1. The application for an inquiry into the applicant's convictions and/or sentences is refused. 2. I direct that pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), that the whole of the applicant's case is referred to the Court of Criminal Appeal to be dealt with as an appeal. 3. ..." 1. The hearing of the appeal took place over a number of days in May 2023. The Court heard evidence from Dr Olav Nielssen, Dr Matthew Large and Professor David Greenberg on the basis that the Court would find that such evidence was fresh evidence, or new evidence, which was permissible for it to consider and deal with on the appeal. 2. The Court deferred ruling on the question of whether the evidence was either fresh or new until after it had heard all of the evidence and taken submissions from the parties. 3. Before coming to consider the evidence led before it, it is appropriate that the Court identify the principles by which appeals are conducted when it is said that fresh or new evidence ought to be admitted. Fresh or New Evidence on Appeal – Legal Principles 1. Recently, this Court considered a question similar to that posed in this appeal. In EC (a pseudonym) v R [2023] NSWCCA 66, Mitchelmore JA (with whom Button and Wright JJ agreed) said: "8. In Ramsey v R [2022] NSWCCA 197 at [32], this Court (Beech-Jones CJ at CL, Wilson and Fagan JJ) observed that the question of miscarriage of justice in a case relying on evidence that is additional to that which was before the jury is to be resolved by considering the sequence of alternatives outlined by Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35, subsequently endorsed in Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49; Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 and Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. In Ratten, Barwick CJ detailed that sequence at 518‑520 and summarised it as follows at 520: 'To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.' 9. In Gallagher v The Queen, Mason and Deane JJ suggested that the Court of Criminal Appeal would conclude that the unavailability of fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial (at 402). Gibbs CJ (at 399) and Dawson J (at 421) substantially agreed with this formulation, although Gibbs CJ further observed that no form of words 'can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred' (at 399). " 1. The principles have also been helpfully summarised by Kirby J (with whom Mason P and Levine J agreed) in R v Abou‑Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417. Kirby J derived the principles from Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518‑520, per Barwick CJ; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659; at 674‑675 per Mason J; and R v Bikic [2002] NSWCCA 227 at [241]-[283]. 2. In Abou-Chabake at [63], Kirby J said: "First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial … Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial … Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new … Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: Is the evidence fresh? If it is, is it 'credible' or at least capable of belief … or 'plausible'? If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused … or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused … Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth … It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better …" 1. It is clear that any analysis and construction of the further evidence must be in the context of the evidence at the trial. 2. Evidence is not "fresh" but is merely "new" if it was available to be adduced at trial, either actually or constructively, but was not adduced. 3. In the present case, the appellant seeks an order that his conviction be quashed, thus engaging an inquiry as to whether any of the additional evidence, whether new or fresh, is of such cogency as to demonstrate a reasonable doubt about his guilt. Kirby J summarised this situation in the fifth of the principles that he extracted from the authorities, as set out above. 4. In the present appeal the question would be whether the additional evidence is of such cogency as to satisfy this Court that the appellant is entitled to more favourable verdicts, either special verdicts or verdicts of guilty of manslaughter only, on each count. If the additional evidence is not of such cogency as to satisfy this Court that it should now substitute one or other of those more favourable verdicts in respect of each charge, then: 1. if the evidence is (i) fresh and "credible" or at least capable of belief or "plausible" and (ii) there is a significant possibility that the jury acting reasonably would have delivered one of the more favourable verdicts had it received the evidence, a new trial should be ordered; or 2. if the evidence is merely new, the appeal on the conviction ground would be dismissed (R v Abou-Chabake at [63], sixth principle; Xie v R [2021] NSWCCA 1 at [433]-[444]). 1. Before embarking upon an examination of the evidence at the trial and on the appeal, it is appropriate to draw attention to the grounds of appeal in this Court. Grounds of Appeal 1. They are: Ground 1: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence at the appellant's trial ("the conviction ground"). Ground 2: A miscarriage of justice has occurred due to the absence of relevant psychiatric evidence in the appellant's sentencing proceedings ("the sentencing ground"). 1. It is appropriate to note here that the Crown, the respondent to this appeal, contested the appeal on the basis that the appellant had not established that any miscarriage of justice had occurred at trial, or on sentence as a consequence of the absence of any relevant psychiatric evidence, and in particular in the absence of the psychiatric evidence adduced on the appeal. The Appellant's Trial and First Appeal 1. It is convenient to the consider the course of the trial. 2. The trial took place over 17 days between 29 March 2005 and 14 April 2005. It was on the last of those days that the jury returned with its verdict of guilty. 3. The appellant did not dispute at the trial that he had killed the three deceased. He did not dispute that he had shot each of the two children and had killed Mrs Shen by a brutal assault. 4. He pleaded not guilty to the murders and based his defence on mental illness. He argued before the jury that, as a consequence of that mental illness, he ought to be acquitted entirely of the offences ("the mental illness defence"). In the alternative, he submitted to the jury that the partial defence of substantial impairment was made out so that he was only guilty of manslaughter ("the partial defence"). 5. Plainly, in returning their verdicts of guilty, the jury rejected both of those defences. 6. On 3 June 2005, for the reasons which he articulated, Barr J sentenced the appellant to life imprisonment with respect to each count: R v Crespin Adanguidi [2005] NSWSC 519 ("SJ"). Barr J did not fix any non-parole period. 7. The appellant did not bring an appeal against his convictions. He did, however, seek leave to appeal to the Court of Criminal Appeal against the sentences imposed on him. 8. On 15 December 2006, the Court of Criminal Appeal (Spigelman CJ, Sully and Hislop JJ) granted him leave to appeal against the sentences but dismissed his appeal: Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 ("the CCA judgment"). 9. Having regard to the law that existed at the time of his trial, the mental illness defence required the appellant to establish on the balance of probabilities that when he did the acts causing death, he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong: see s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed). This test reflects the judgment of the High Court of Australia in The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 188; see also Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192. 10. The partial defence placed the onus on the appellant to establish, on the balance of probabilities, that at the time of the acts causing death, his capacity to understand the events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition. If he succeeded in establishing that state of affairs, he then needed to persuade the jury that the impairment was "so substantial as to warrant liability for murder being reduced to manslaughter": see s 23A Crimes Act 1900. 11. At the trial, the appellant called Dr Bruce Westmore, a forensic psychiatrist, and relied upon his opinion which, in summary, supported the conclusion that the appellant had a mental illness defence. That was because Dr Westmore said that whilst the appellant knew the nature and quality of his acts, he did not know that they were wrong. Dr Westmore was unavailable and so did not give any evidence on the appeal. 12. The Crown called Dr Nielssen, a psychiatrist, in its case in reply at the trial. By way of brief summary, Dr Nielssen expressed the view that it was possible that the appellant was suffering a psychotic illness which might have had some effect upon the appellant's ability to judge right from wrong, but Dr Nielssen was persuaded that any abnormality did not affect the appellant's reasoning ability in the sense that it did not affect his capacity to form and undertake purposeful action and, accordingly, the effect was not very great. 13. It is convenient here to set out the remarks of Barr J on the question of the appellant's mental state. At [72] of the SJ his Honour said: "72. At the time of the murders, however, although the [appellant] was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the [appellant's] state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and moral wrongness of what he was doing. I do not think that the [appellant's] capacity to understand events or judge whether his actions were right or wrong in a moral sense or to control himself were impaired at all. I do not think that his capacity to reason about what he was doing was impaired. His illness, his belief that he was being watched and the other effects that it was having upon him, were incidental. No doubt they affected his life and relationships, but they did not mitigate his criminality any more than any physical illness would have done." 1. In the Court of Criminal Appeal, when dealing with the application for leave to appeal against sentence, it was contended that it was not open to Barr J to find, as he did, that the appellant's culpability was not affected by his illness. That contention was rejected by the Court. 2. On the hearing of the appeal, further evidence by way of a report of Dr Nielssen dated 29 October 2006 and a report of Dr Pascal Agonkan a specialist psychiatrist from Benin, dated 2 June 2006, was put before the Court of Criminal Appeal. 3. The Court of Criminal Appeal was provided with the appellant's prison file for the period after sentence and up to 12 September 2006. 4. The attempt to place that additional material before the Court was rejected unless the Court came to re-sentence. The Court was not persuaded that Dr Nielssen's report of 29 October 2006 added significantly to his evidence at the trial and, as well, that it had any impact upon the question of the appellant's capacity at the time of the murders. The Court was also unpersuaded that the material contained in the report of Dr Agonkan impacted upon Barr J's conclusion as to the appellant's condition at the time of the murders, nor, the Court held, did it affect any opinion of Dr Nielssen. The Objective Facts Established at Trial 1. It is convenient at this stage to identify the facts at trial for which there was objective evidence with respect to the appellant's offending. The Court will separately consider the various accounts of the appellant and the evidence before the jury with respect to his mental status. However, it is important to set out the factual background – which was largely unchallenged. Those facts are most easily identified and taken from the SJ between [4] and [22]. "4 In January 2003 Mr Shen travelled to China on business. He returned on 29 January. On the next day the offender telephoned him and said that he was eager to see him. He invited him to come to his unit at Maroubra at any time after 7:00pm in the evening. 5 I am satisfied that the offender issued his invitation with the intention of attacking, disabling and robbing Mr Shen and his family. In anticipation of a visit by Mr Shen, he provided himself with a loaded pistol, strong adhesive tape, strong cord, various tools, a torch, cloths and a device to enable him to see in the dark. He had a pair of rubber gloves and a bag in which to carry these things and the money he expected to steal. 6 As invited, Mr Shen arranged to visit the offender on the evening of 31 January. He telephoned him on the way and they arranged to meet near the University of New South Wales because Mr Shen had never been to the offender's home and did not know the area well. They met as arranged and drove to the offender's unit block. The offender parked both their cars under the building and they went to the unit. 7 Once inside, they spent some time talking and looking at photographs of the offender's family. They moved into the bedroom and undressed and there was some intimate touching. As Mr Shen was putting on his clothes the offender took out the pistol and struck him hard on the back of the head. Mr Shen fell to the floor. The offender told him to remain silent and to lie on the floor. He placed one cloth in Mr Shen's mouth and another around his mouth and head. He took the adhesive tape and bound his head, hands and feet. He continued to threaten him with the pistol, telling him to remain quiet. 8 The offender moved Mr Shen into a second bedroom and began to demand money from him. He said that a "Slovenian gang" was after him, that he needed money to pay a "Mascot cop" and that he needed to leave Australia because he had killed a pharmacist at Hurstville. None of these things was true. He accused Mr Shen of sending photographs of them to his, the offender's, wife. 9 He held Mr Shen there for hours, demanding that he make over money and other valuable things. Mr Shen told him where he could find such money as was available, including some that he carried with him and some that he kept in his car. The offender went to the car and took the money. Mr Shen was obliged to explain to the offender that he was unable there and then to sign over to him assets, property or the proceeds of bank accounts that the offender was asking for. The offender began to make threats against Mr Shen's family and Mr Shen pleaded with him not to harm his wife or children. The offender produced a knife and cut off some of Mr Shen's hair. He said that he was going to show it to his wife. 10 The offender left the room from time to time and made and received calls on his mobile telephone. He had a contract with the operator of the Ritz Cinema, Randwick to clean the premises and employees of his were there while he was holding Mr Shen captive. Some of his telephone conversations were with those employees. 11 After one such conversation the offender returned to the room where Mr Shen was and told him that the Slovenian gang were chasing him and that he had only ten minutes left. He counted down the ten minutes and as he did so he held the pistol to Mr Shen's head. He left the unit, having stolen Mr Shen's car and unit keys. As he did so he set the alarm. 12 Having left Mr Shen bound and gagged, he went to the Ritz Cinema, driving Mr Shen's car, and spoke to his employees. After that he went to Rockdale. He knew the security arrangements at the building in which the Shen unit was situated and used Mr Shen's keys to get in. It was then 2:54am. He travelled to the floor on which the unit was situated but before entering it he turned off the electric power to the unit and two adjoining units. He entered the unit taking with him the bag containing his various belongings. He put on rubber gloves and carried a torch. 13 The offender was in the Shen unit for about an hour and during that time he carried out a number of different acts. The evidence does not permit any confident conclusion about the order in which they took place. He stole money and valuable property, including jewellery, computer equipment and mobile telephones. Because he was wearing the gloves, he left no fingerprints. It seems unlikely that all this property would have been on open display, particularly the substantial amounts of cash that he took, and probable that he found it after searching or after having been told by Mrs Shen where it was. 14 As the offender was going about his work a number of things happened. Pin Shen, who kept a tennis racket in his room, took it and approached the offender. Whether the offender was then stealing or attacking Mrs or Ms Shen or was merely an unwelcome entrant it is not possible to say. The offender, facing him, shot him through the head at close range. Pin Shen died straight away. 15 Ms Shen also was alarmed. The clothes she was wearing when she was found make it appear likely that she was in bed at the time. If she was, she got out of bed and, still in her bedroom, took her mobile phone and called triple 0. She managed to make the connection, but it was almost immediately broken. I think that the offender must have done that. He shot her through the back of the head from close range. She died, slumped over her bed. 16 The offender killed Pin Shen to prevent him from getting in the way of what he was doing. He shot Ms Shen for the same reason and in particular to prevent her from calling for help. His intent in shooting them was to kill. 17 The offender attacked Mrs Shen with the pistol, but he did not shoot her. He tortured her by pressing the tip of the barrel into her breasts and perhaps rotating it. He did so to hurt her, perhaps with the intent of making her tell him where valuable things might be found. Mrs Shen was unlikely to have told him voluntarily. He used some instrument, presumably the pistol, to cause a superficial injury to her sexual parts. There was damage to the fingers, with breaking of the finger bones, tearing of the soft tissues and dislocation of the joints. He killed her by striking her repeatedly in the face and head with a hard object. I think that that was probably the pistol. There was extensive fracturing of the bones of the face, some of them extending into the base of the skull. There was bleeding within the skull. There was brain damage. The lacerations so produced bled extensively and some blood was inhaled and some swallowed. There was bruising about the neck and fractures of the ribs. Those fractures may have been caused postmortem. 18 Shiquin Zhu [Mrs Shen] died of these injuries and from inhaling blood. Her death was painful. She probably knew before she died that her children had been murdered. 19 The offender left the unit shortly after 4am, taking with him the money and other valuable things he had stolen, together with the pistol, the gloves, the infrared device and other things in a sports bag. He also had a backpack and a computer in a bag. He drove to the unit of a woman with whom he had a casual sexual relationship, got her out of bed and told her a false story about his wife's having just left him. He left with her the bag containing the things I have mentioned, the backpack and the bag containing the computer. He made sure that she stowed them out of sight. He returned to his car and drove towards his own unit intending, no doubt, to deal in some way with Mr Shen. 20 In the meantime, after a long, difficult and painful struggle, Mr Shen had managed to free himself from his bonds. He got himself out of the offender's unit. He could not use his car, of course. He knocked on doors and called for help but at that hour of the morning there was no help. Eventually he managed to find a public telephone and made a call to the emergency services. Police officers came and helped him. He told them what had happened and gave them his family's telephone numbers. Ambulance officers took him to hospital, where he was treated. 21 Police officers telephoned the Shen unit. Only one of the several calls that they made was answered and on that occasion nobody spoke but the police could hear noises. They went to the unit and found the bodies of the deceased. 22 When the offender arrived at his unit block, waiting police officers arrested and disarmed him. He was taken into custody." 1. Some features of this factual account can be readily identified. They are: * prior to meeting with Mr Shen, the appellant armed himself with a loaded pistol, and equipped himself with strong adhesive tape, strong cord, various tools, a torch and a night vision device, each of which were the means by which the murders were committed; * the attack on Mr Shen occurred in circumstances giving rise to the conclusion that the appellant lured Mr Shen into his apartment, took some time, in a way familiar to each of them, to put Mr Shen at ease, and then deliberately attacked him and held him for some hours; * the appellant, having tied Mr Shen up, left the room and transacted business over his mobile telephone with employees of his who were, at his direction, cleaning the Ritz Cinema at Randwick; * the appellant left his unit, leaving Mr Shen inside, stole Mr Shen's car, and his apartment keys, and then set the alarm on his unit, drove to the Ritz Cinemas and spoke to his employees – who were there carrying out cleaning duties; * the appellant then drove from Randwick to Rockdale, where he entered the apartment building using Mr Shen's keys, he then travelled to the floor on which Mr Shen's unit was situated, and accessed the electric power boards to turn off the electric power to that unit and the adjoining units; * before entering the unit while carrying various implements including a loaded pistol, he put on rubber gloves; * at the unit he commenced to steal jewellery, computers and mobile telephones – all of which were valuable; * as he was doing so, he was interrupted by Pin Shen. He shot Pin Shen through the head at close range. Then, as Christy Bo Shen attempted to ring 000, the appellant prevented her from doing so and shot her at close range in the back of the head. Each of those killings was carried out to prevent his being disturbed in the task he was taking on, and, although at close range, required a careful aiming of the pistol and a deliberate decision to fire it; * the appellant then, by various forms of physical assault, beat Mrs Shen to death. This took place over a lengthy period. It involved the appellant striking her repeatedly and with great strength; * the appellant then left the unit and drove to another apartment, where he asked the occupant with whom he was occasionally intimate, to take his backpack and belongings and hide them for him. He then returned to the car and drove to his own unit. He was arrested when he arrived there. 1. Each act was done for a particular and obvious purpose. The acts had features of deliberateness and intention. The sequence of the acts strongly suggested a plan conceived before first meeting Mr Shen that evening, and the confirmation of the plan by its execution throughout the time until the appellant returned to his apartment. Not one of these acts was accompanied by incoherence, irrationality or any lack of purpose. 2. It was the totality of this conduct against which, in light of the evidence at the trial, the jury were asked to consider the defence of mental illness and the partial defence, to which we now turn. The Absence of Evidence from the Appellant 1. It needs to be said at the outset that the appellant did not give sworn evidence at his trial. The appellant was not obliged to do so. No adverse inference can be drawn against him for not doing so. No such inference is drawn. 2. On the hearing of this appeal, the appellant did not give evidence either. Again, he was not obliged to do so, and there may well have been legal reasons why he was not able to. The point is only mentioned so that it can be clearly identified as not giving rise to any adverse inference to be drawn by this Court against him. 3. He did, however, give various accounts in various circumstances to various people - particularly to those health professionals with whom he came into contact after his arrest, and to psychiatrists retained to assess him for the purpose of the issues which were to be raised at his trial, and on this appeal. 4. These various accounts were not sworn to. The discrepancies in and between the accounts are not the subject of any challenge by cross-examination. This Court needs to exercise caution before, uncritically, accepting these various accounts, or parts of them. The Appellant's Psychiatric History and Mental State Leading up to the Offending 1. It is now appropriate to summarise the factual evidence about the appellant, including reference to any mental illness issues, which was led at the trial. Childhood in Benin 1. The appellant was born in 1977 in the Republic of Benin in West Africa. Mr Jean Adanguidi was the older brother of the appellant and through the assistance of a French interpreter, he gave evidence in the trial about their childhood. 2. Mr Jean Adanguidi stated that their "early existence was very difficult" as there would often be issues due to jealousy from their father's three wives and pressure from needing to feed and clothe everyone. He said that there were 23 children altogether and that the appellant started working in a maize mill at seven or eight years old in order to help their family survive. 3. Mr Jean Adanguidi said that when the appellant was around 13 years old, he noticed that he started suffering from "mental troubles". He described them as follows: "Q. What were those mental troubles? A. We noticed that he was suffering from nightmares and he could become very agitated at times. Q. Did anything happen to his speech? A. Yes it was, it was affected. Q. How was it affected? A. He was talking without much direction. He could say one thing once and the opposite the next. His speech was not making much sense. Q. Did he develop any strange behaviours? A. Yes, he developed a lot of strange behaviours, which were not normally the way he was. He developed some kind of nervous condition. Q. What do you mean by nervous condition? A. His normal behaviour when he was talked to was to respond normally but later on he became very unco-operative and agitated. […] Q. Did he do anything with his food? A. Yes, he used to throw his food on the floor and ate from the floor." 1. Mr Jean Adanguidi said that their family tried to help the appellant but they "realised it was the beginning of a kind of madness". As such, in addition to family support, they sought help through the only psychiatric hospital in Benin (in Jacquot) and also exposed the appellant to traditional medicine in Ketou. Mr Jean Adanguidi said that the appellant stayed at the psychiatric hospital for a few days and was in the traditional medicine hospital from May to August 1991. The appellant would have been about 14 years old at that time. He said that when he visited the appellant at the traditional medicine hospital, he "did notice an improvement from the time his stay in the Hospital [sic] comparing with the time before". In re‑examination, Mr Jean Adanguidi confirmed that mental health problems in Benin were often treated through a combination of traditional medicine with modern medicine in order to produce a "good result". The Appellant's Life in Australia prior to June 2022 1. The appellant came to Australia in 1996 when he was around 19 years old. Mr Gary Keats was a friend of the appellant, having met him towards the end of 1996 when Mr Keats sponsored the appellant to live with his family for about six months. Mr Keats said that the appellant was very much a "fun loving sort of guy" who used to "joke around a lot". He said that he never saw the appellant act in a violent way. 2. Ms Karen Keats was the wife of Mr Keats and she agreed that she believed she got to know the appellant very well from the time he lived at their house. She also said that the appellant was a fun-loving person who was easy to get on with and was laid back. She said that he was easy to talk to and was a lively person who was especially animated. She said that the appellant did not tell her about his admission into a psychiatric hospital in Benin. 3. Ms Alicia Richards was the separated wife of the appellant, and she gave evidence in the trial about her experience with him from when they started dating in January 1999. In cross-examination, she said that prior to June 2002, she had only seen the appellant "aggressive once" and had never seen him "being violent". She said that in the four years she knew him, he was a very caring father to their two children, and that he was "fun-loving", "good company", "easy to get on with" and a person who "joked around". She said that the appellant did not tell her about any of the health problems he had as a child. 4. Mr Raymond Shen was a friend of the appellant and the father and husband of the three deceased victims. Mr Shen first met the appellant in about the year 2000 when the appellant was working as one of the security staff in Mr Shen's residential building. He said the appellant appeared to be "a very nice person", and a friendship developed between them where they would talk about business plans, travelling, and their love for their family members. Mr Shen said that prior to January 2003, he had never seen the appellant angry, threatening or behaving aggressively. Mr Shen also confirmed that their friendship involved sexual intimacy, which began when they first met and continued up until the time of the offending. The Appellant's Fear of Voodoo 1. Ms Richards said that the appellant was fearful of voodoo and that it was a "continuous thought" that they discussed on "quite a few occasions". She said that the appellant knew people who did voodoo and told her about "how they do curses and it comes true and other children have had harm done to them and other people have had harm done to them". She said that the appellant: "[…] didn't want any of his aunties or uncles to know that he had children because he thought that they might perhaps do voodoo on the children and cause harm to them. In Africa, if they believe that you have some wealth, and living in Australia, they would believe he had some wealth. If he didn't share it with all his family, they might try to cast voodoo spells and he was afraid of that." 1. Ms Keats gave evidence of an occasion when she had a "very long conversation" with the appellant (with Mr Keats present) in which the appellant was "very distressed" and "brought up this story about his village where, to [her] understanding, the practice was to sacrifice a child for the sake of the health of the village". Mr Keats gave similar evidence about this conversation where the appellant was "very upset" when describing his "experiences in eye witnessing events in voodoo activities". Both Mr and Ms Keats gave evidence describing the story as one where a crowd of people from a village chased a boy up a tree and chanted until the boy killed himself by jumping from the tree. Ms Keats gave evidence that they understood the appellant to have been about six, seven or eight years old in this story. 2. Mr Jean Adanguidi confirmed that the vast majority of their population practiced voodoo, including the appellant, but gave evidence that the practice "didn't include human sacrifices, chickens, sheep and the like". Mr Jean Adanguidi gave evidence that the appellant did not tell him the story about seeing the young boy falling from the tree to his death but said that the appellant was not the type of person to "exaggerate or tell tall stories". 3. Ms Richards said that the appellant did not tell her the story about the little boy from his childhood until after he went into custody. After the Benin Trip in June 2002 1. Ms Richards gave evidence that in around June 2002, the appellant travelled to Benin by himself for approximately 10 days to go and visit his family. Mr Jean Adanguidi confirmed that he saw the appellant in Benin during this trip and that he appeared "quite well". 2. The evidence established that the appellant's demeanour began to change after the Benin trip. Ms Richards said that the appellant returned from the trip early, and that he was "all right for a couple of weeks and then he started to really withdraw and didn't communicate with [her] much at all". She said: "[…] he wasn't joking like he usually does. He got nightmares, he was hardly ever sleeping. He would stay up all night most nights and he appeared very tired and out of energy." 1. Ms Richards said that it became common for the appellant to get up in the night and watch TV, go on his computer, or look out the window on the balcony. When asked if the appellant told her what his nightmares were about, she said: "No, he didn't discuss any emotions with me". Ms Richards could not recall if they had any conversations about voodoo after he returned from the Benin trip. 2. Mr Jean Adanguidi said that prior to the Benin trip, he would have regular contact with the appellant and the appellant would be the one to phone him most of the time. However, after the appellant returned to Australia, Mr Jean Adanguidi said that the appellant stopped calling. When Mr Jean Adanguidi eventually phoned him, he gave the following evidence of their conversation: "Q. And did he tell you why he hadn't telephoned you? A. He told me he was sick. Q. Did he tell you in what way he was sick? A. Yes. Q. What did he tell you? A. He told me he had some headaches, that is his heart was beating fast, he had nightmares, he couldn't sleep at night. He had a lot of nightmares, he couldn't sleep as a result. He had insomnia. Q. Had you known him to have those symptoms before? A. These nightmares and troubled mental state reflected the situation he was in in 1991." Memory Loss in 2002 1. Ms Richards gave evidence that particularly towards the end of 2002, the appellant's memory appeared to be deteriorating. She said the memory loss was something she identified and brought to the appellant's attention before the offending. When asked how the memory loss presented itself, she described it as follows: "A. He would constantly be forgetting things. He would book appointment on top of appointment for the same time. I think sometimes he would key in that time into his mind, his memory, like say 11 o'clock on Saturday, so he would make three appointments for 11 o'clock on Saturday and I would have to remind him that he already had an appointment. Q. What other, can you think of any other examples? A. Every time he walked out of the door I asked him if he had his keys, if he had his wallet, if he had his phone. He would always be leaving that behind. Q. Was this something that manifested itself throughout the time that you lived together? A. Yes, it got a lot worse near the end, to the point that I thought that he might have problems, might have a medical problem." 1. Ms Richards gave evidence that the appellant saw a doctor about his memory loss and that he was prescribed medication as treatment. She confirmed that the appellant would have been taking the memory loss medication at the time of the offences. Ms Richards also confirmed in cross-examination that there was a time when a whiteboard was purchased to allow the appellant to write notes to himself on it. Break and Enter in December 2002 1. In around December 2002, the appellant and Ms Richards were the subject of a break and enter in which various items were stolen. She said that around two weeks later, she saw a firearm on a bookshelf in the dining room and she asked the appellant why it was there. She said he responded as follows: "A. […] he said it was to protect us. He said it wasn't loaded and then he had no bullets and he said he also got it from Raymond and I asked him to get rid of it and the next day it was gone." 1. Ms Richards gave evidence in cross-examination that the appellant also purchased an alarm system after the break and enter and she agreed that he was "overly concerned to ensure that it was on at all relevant times". She said he was "definitely checking it to make sure that it was working properly. He wouldn't give anyone else the code for it." In re-examination, Ms Richards said the code was to activate or deactivate the alarm and she did not touch the alarm system as she was always with him. Incident on 10 January 2003 1. On 10 January 2003, Ms Richards separated from the appellant after an incident occurred where he slapped their first child in the face. She left with their two children that day and described the incident as follows: "A. Um, he had been washing [first child] and [first child] was screaming in the bathtub and I was very tired. I had come home early from work but I was very tired from work and I was trying to sleep and [first child], and they were making a bit of a fuss in the bathroom and then I heard [first child] scream quite loud and I went in and I had seen that he had a hand print on his face like he had been slapped so […] I rang the police but they didn't come so I rang my parents and they came and picked me up and went back to their place." 1. In cross-examination, she agreed that this incident with their first child was "extremely unusual" especially since the appellant spent a lot of time with their children and bathed them often. Between 11 January 2003 and 1 February 2003 1. Ms Richards said that in the period between when she separated from the appellant and the time of the offending, she had contact with him over the phone every couple of days. She gave the following evidence of their interactions during that period: "Q. In the period between the 11 January and the 31 January, on those occasions that you spoke to him on the telephone, how did he appear? A. Very depressed, very upset, he was very quiet when he spoke. Q. And did he tell you what he was depressed about? A. No, I knew that he was upset that I had left him and that I had taken the kids. That's what I believed it to be all about. Q. And did you consider that his emotional response was appropriate for the situation that he was in with you? A. Yes. Q. And were you upset at that time as well? A. Yes, I was, maybe not as upset as he was. Q. The phone conversations that you did have with him, were they related to domestic issues between you and him and the possibility of a reconciliation? A. Yes, a lot of it was him pleading for me to come back and I was saying I need more time, but we will be together again." 1. Ms Richards gave evidence that she could not recall if the appellant complained of any strange phenomena such as hearing voices because he would have said "something like that in a form of a joke" and she "probably wouldn't have remembered it because [she] would have thought he was joking". When asked whether she recalled telling the appellant to see a doctor about hearing voices, she said that she did not. When asked if there were other occasions in which she told the appellant to see a doctor, she said: "A. I have tried to get him to go to a counsellor with me based on, I would say that it would be based on family and our relationship, but I also thought that he needed extra help himself." 1. Ms Richards gave evidence that the appellant also complained that "his head was hurting a lot" in the lead up to the offending. She said that "he was getting lots of headaches" and that "his eyes were hurting". When asked if he saw a doctor about this issue, Ms Richards said she thought he did and that it would have been around the same time the appellant was discussing his memory loss with the doctors. 2. Mr Jean Adanguidi said that the last time he spoke to the appellant on the telephone was in January 2003 and he recalled a conversation where the appellant told him about the state of his health. Mr Jean Adanguidi said the appellant "mentioned the nightmares, the headaches and all his problems" and that "his illness had worsened, that he had nightmares and he couldn't go to sleep". When Mr Jean Adanguidi was asked if the appellant told him what the nightmares were about, he said: "Since the phone conversation were expensive we didn't dwell on the extent of the nightmares but he told me that he had bizarre dreams". 3. Ms Yvonne Tudela was in an intimate relationship with the appellant in the period leading up to 1 February 2003. She gave evidence that the appellant came to see her at her home on 19 January 2003 and that she did not recall him telling her anything on that occasion about any problems he was having. She said the next time she saw the appellant was the early morning of 1 February 2003 shortly after the appellant committed the offences. 4. Mr Shen said that he travelled to China in January 2003 for "about 20 or 16 or 18 days". On 24 January 2003, while Mr Shen was away, the appellant sent him the following email tendered by the Crown at trial: "Hey Raymond I hope everything is going allright with you as I haven't heard from you for couple days. Could you please let me know if everything is ok. My wife moves out to her parent so I here alone and wish you were here. I can't wait to see you back the whole unit is empty as I don't have the kid to look after I'm as free as a bird in the sky. So come back quick and by the way bring some goodies from china for me. come back soon Missing you Cres" (sic) 1. Mr Shen said that that email was the first time the appellant told him about "divorce things" and his wife taking the children. 2. On 27 January 2003, Mr Shen sent the following email in reply to the appellant: "Dear Cres, I just left Hong Kong this afternoon and come to Ha Noi at the moment. I will come back to Sydney in the morning of 29th. I assume I will be free during the day of 30th or in the evening of 29th. I will send you very nice gifts and I will definitely do a lot of business with Benin and export products to your country. I will ring you when I comeback. Looking forward to meeting you very soon. Raymond" (sic) 1. Mr Shen said that he arrived back in Sydney on 29 January 2003, and that the following day (30 January), the appellant rang him on the telephone and said he wanted to see him. Mr Shen told the appellant that he had dinner plans that night but that he would go and see him if it was still early afterwards. At around 9 to 9:30pm on 30 January, Mr Shen said that he tried to ring the appellant but there was no answer. He said he left a few messages asking the appellant to ring him before eventually going to travel home. Mr Shen said that after he got off the train and as he was walking home, he received a phone call from the appellant asking him "to go". Mr Shen said he replied that "the time was too late" and they made arrangements to meet the following evening on 31 January 2003. 2. Detective Sergeant Joseph Maree stated that the appellant attended the North Sydney Police Station shortly after 8:30pm on 30 January to collect a copy of "some papers about the complaint in relation to his son". Detective Maree confirmed that the appellant remained at the police station until 9:25pm. He did not give any evidence that suggested that the appellant's behaviour was other than normal during this visit to the police station. The Events of 31 January 2003 1. On 31 January 2003, Ms Keats spoke to the appellant over the telephone and asked if he wanted to have an evening meal together to talk about his separation from Ms Richards. She said that the appellant said "he could not come for tea that night because he had other plans, but he would come the following Tuesday night [4 February 2003] and talk to us then". The appellant told Ms Keats that he had a misunderstanding with Ms Richards and that "he was hoping to talk to her over the weekend and that he felt that he would be able to work the problems out". When asked how the appellant sounded, Ms Keats said he was "depressed and upset, but he seemed confident that he was going to be able to get through this problem". Ms Keats confirmed that they made arrangements to meet the following Tuesday. 2. Mr Shen gave evidence that when he met the appellant on the evening of 31 January 2003, the appellant was "in very normal attitude" and "very friendly". He said that he had not noticed any change nor anything unusual in the appellant between 29 and 31 January 2003, with the exception of the following: "[…] after I came back he rang me actively. Usually he would not ring me so obvious but according to my understanding he went to talk to me about his sadness so I tried to comfort him so but when I was in Hong Kong I get such kind of email. I get a lot, bit strange too because usually he appeared to me very strong, very bright person, but told me in the email he was very upset of his wife leaving but he rang me, wanted to see me. I felt a little strange but I didn't care about that. I think I didn't notice any evil intention from him." 1. In relation to whether they spoke about the appellant's separation from his wife that evening, Mr Shen gave the following evidence: "Q. Now did he tell you anything about the circumstances of him separating from his wife? A. Yes he said, I asked her, him, how, because he already told he separates marriage on the court case. He said, 'I don't care, everything will be handled by the solicitor'. Q. Did he tell you when the court case was to be held? A. He told me that February 18 or 28, I forget. He told [me] that date. He said court case hearing be very soon. Q. Did he [tell] you why he had separated from his wife? A. He didn't. Q. Did he tell you where his wife was living? A. He told me his wife was living with her parents. Q. Was that something he told you on this night? A. Yes. Q. And was there any conversation at all about the nature of the court case, what it was about? A. He didn't. He looked very relaxed. He said, 'Everything will be handled by my solicitor'." 1. Mr Shen and the appellant then spent about 20 to 30 minutes talking about the appellant's family before going into the bedroom to engage in sexual touching. The touching lasted around 10 to 15 minutes, and as Mr Shen got dressed afterwards, the appellant knocked him to the floor and the offending began. 2. During the period when Mr Shen was held captive, he described the appellant's demeanour as "very calm", and "very normal". He said the appellant's behaviour completely changed after he hit him but that "his talking attitude still pretended to be very kind, very nice, only he needed the money, but that was to my surprise. He was so greedy". Mr Shen said the appellant received "at least four or five phone calls" while he was held hostage and that when the appellant spoke on the phone, he would "talk very normally, even with smiling". Mr Shen denied that the appellant appeared aggressive or angry but agreed that he was terrifying. 3. Mr Shen gave evidence that the appellant wanted the money to leave Australia, and that the appellant told him he "just killed a pharmacist in Hurstville the day before, and the man didn't give him the money, so he killed him and threw him to the bush". The appellant told Mr Shen that if he didn't give him the money, he would "do the same" to him. The police investigation established that there was no pharmacist in Hurstville that was killed on 30 January 2003. 4. Mr Shen said the appellant wanted $200,000 to pay for a "Slovenian gang" and "Mascot cop" to assist him in leaving Australia through fake documents. He said the appellant also accused him of sending photos of them having sex to the appellant's wife. Lastly, Mr Shen gave evidence that the appellant repeatedly told him that he "felt sorry about doing this" and that he did not want to do this to him but there was a "Slovenian gang" forcing him to. When the conversation shifted to Mr Shen's children, Mr Shen pleaded with the appellant not to harm his family but the appellant again replied that the "Slovenian gang people" were forcing him to. The Appellant's Accounts of the Offending in the time around his Arrest and up to his Trial 1. The appellant was arrested shortly after 4:50am on 1 February 2003. His trial before a jury began on 29 March 2005. In the time between his arrest and the beginning of his trial, the appellant gave varied accounts to different people regarding what occurred on 1 February 2003. A chronological summary of the appellant's accounts to various witnesses is now set out. Evidence of Ms Tudela 1. Ms Tudela gave evidence that she received a telephone call from the appellant at about 4:30am on 1 February 2003. The appellant said, "Can I come in? I have a problem. I'm at the front balcony" and Ms Tudela said, "Okay". When she opened the front door, she saw a "big sports bag" and the appellant walking towards her front gate with two more bags. She said she told the appellant to come in and they went inside the house and put the bags in the hallway. Ms Tudela shut the front door and asked the appellant what was wrong, to which he said "he had a problem with his wife". She said he did not say what the problem was at that particular time, and gave the following evidence of their conversation: "A. I again asked him what was wrong and he said he had a problem with his wife, Alesia [sic], and that he, she had accused him of assault but that he had not hit her. Q. But that he had not hit her? A. He was with someone else. With Raymond he said. […] Q. Did he say anything else about Raymond? A. He said that the wife had called the police because she was accusing him of assault and that he had to go back and sort this out with his wife. […] Q. Did you ask him why, what he was doing with all his possessions and money in those bags? A. Um, well no, because he has only had a problem with his wife so I assumed that obviously they had an argument and he had left home, something like that. Q. Did you ask him or say anything else to him? A. I did ask him what he is doing with so much, with the money that he said he had in the bag, why was he carrying money and I don't know if he replied, I can't remember, no. Oh he said he was going to explain later I think, yeah." 1. In relation to the appellant's demeanour, Ms Tudela gave evidence that he appeared agitated and "didn't seem himself […] he was nervous and he looked very serious and worried, a bit distant, like he wasn't right there". In cross‑examination, Ms Tudela gave evidence that the appellant was "sort of talking" but that he did not seem to be talking to her at times. When asked if the appellant's eyes appeared glazed, she said "I think so, yes". 2. Ms Tudela stated that the appellant told her that inside the bags were all of his belongings and some money, and that he would "pick up his bags in a couple of hours". Ms Tudela said the appellant was at her home for about 10 minutes, and that a couple of minutes after he left, he called her phone again and asked her to open the door. The appellant said he needed to "get something" and went to take something out of one of the bags before leaving again (Ms Tudela did not see what the appellant took from the bag). Ms Tudela gave evidence that that was the last occasion on which she had contact with the appellant. Evidence of Senior Constable Longley 1. Senior Constable Bree Longley was one of the police officers who arrived in response to Mr Shen's 000 call. She gave evidence that at about 4:50am, she was talking to another officer when she saw the appellant driving towards her in Mr Shen's car. She said the appellant parked the vehicle around 100 metres from her and that when he exited the car, she told him to, "Drop everything in your hands". Senior Constable Longley gave evidence that at this stage, another officer came down to where she was and had his gun pointed at the appellant. She said the appellant did not comply at first, but that she walked up to him, grabbed him by the right arm, pushed him against the fence, placed him in a wrist lock, and handcuffed him. She gave the following evidence: "Q. After that was done, did the [appellant] say, 'What is going on?' A. Yes. Q. Did you say, 'You are under arrest for depriving the liberty of Raymond'? A. Yes. Q. Did he reply by saying, 'I am being set up, I am being set up'? A. Yes. Q. Did you then say 'Where is the gun, where is the gun?' A. Yes. Q. Did he say, 'I don't have it'? A. Yes. […] Q. How did he respond to you, what manner? A. Disbelief almost." 1. Senior Constable Longley gave evidence that she left momentarily in order to obtain a caged police vehicle. She said that when she returned, their interaction continued as follows: "Q. […] did he say to you, 'What am I under arrest for?' A. Yes. Q. Did you say to him, 'You are under arrest for depriving the liberty of Raymond'? A. Yes. Q. Did he say to you, 'I'm being set up, I'm being set up'? A. Yes. Q. Did you then say to him, 'You do not have to say or do anything if you do not want to'? A. Yes. Q. 'Do you understand that?' A. Yes. Q. Did he say 'I'm being set up'? A. Yes. Q. Did you again say, 'Do you understand that?' A. Yes. Q. Did he make no response? A. That's right. Q. Did you then say to him, 'Anything you say or do will be recorded and may later be used in evidence. Do you understand that?' A. Yes. Q. Did he make no response? A. That's right. Q. Did was he then placed into the rear of the caged truck? A. Yes. Q. After he'd been placed in the truck was the door shut? A. Yes. Q. And locked? A. Yes. Q. What happened then, anything? A. I could hear the accused screaming in the back of the truck and bangs against the side walls. Q. Were you able to discern anything that he was saying? A. No." 1. Senior Constable Longley gave evidence that the appellant was then taken to Maroubra Police Station and introduced to the custody manager. Evidence of Detective Sergeant Davis 1. At about 5:20am on 1 February 2003, Detective Sergeant Sydney Howard Davis saw the appellant in the charge room at Maroubra Police Station. Detective Davis gave evidence of their conversation throughout the day as follows: "I said 'We have been told that you robbed and tied up the victim and you were arrested in the victim's car. Where were you?' He said, 'He set me up'." […] "When I walked in [the appellant] said 'Why am I here?' I said, 'We're investigating the robbery of Raymond Shen at your unit.' He said, 'I was at North Sydney McDonalds at 2.10 a.m.' I said 'Okay'." […] "[…] I showed him the detention warrant. […] I said, 'This is your copy, I'll have the Custody Manager put it in your property, okay?' He said, 'Yes but I was at McDonalds Kingsford at 2 a.m. and at the Ritz at 2.30 a.m. where I work.' I said, 'You told me before that you were at North Sydney McDonalds'. He said 'No, I was at Kingsford'. I said, 'Okay, we'll check it out'." Evidence of Detective Sergeant Maree 1. Detective Sergeant Joseph Maree was the officer-in-charge of the investigation and one of the officers who spoke to the appellant at Maroubra Police Station on 1 February 2003. 2. At about 11:20am, Detective Maree introduced himself to the appellant in the charge room and gave the following evidence of their conversation: "I said, 'What I propose to do now is speak to you about Raymond Shen and what has happened during the night. Do you understand that?' The [appellant] began crying and said, 'My wife rang the police and told them I hit my son and I do not see my children. I do not know why this is happening to me, he has a plan for me, he knows why he has put me here and he will lead me.' I said, 'Who is he?' The [appellant] did not reply and continued crying. I said, 'Who are you talking about?' He said, 'Raymond asked me to hit him on the head.' I said, 'Why would he ask you to do that?' The [appellant] did not reply and continued crying." 1. Detective Maree then confirmed with the appellant that he had spoken to his solicitor earlier that morning and offered him a further opportunity to speak to his solicitor, which the appellant accepted. At 11:45am, the appellant was moved to a different area of the police station to speak to his solicitor. At about 12:05pm, the appellant returned to the charge room and his solicitor left the police station. At about 1:30pm, Detective Maree had the following conversation with the appellant: "I said, 'Did you speak to a detective a little while ago and say to him that you weren't at McDonald's North Sydney, you were at McDonald's Kensington?' The [appellant] said, 'Yes.' I said, 'What did you mean by that?' The [appellant] said, 'I was there about 2 o'clock. You can ask them, you can check and see me.' I said, 'What were you doing there?' The [appellant] said, 'I went there, then I went to the Randwick Ritz and I saw Adam.' I said, 'Who is Adam?' The [appellant] said, 'He works for me cleaning. I rang, I spoke to him first. I went there to wake him up to make sure he was working.' I said, 'What time was that?' The [appellant] said, 'When I got back in the car it was 2.22. I remember because of the three same numbers.' I said, 'Where did you go then?' The [appellant] said, 'I rang Raymond, his car had no petrol and I rang him to ask whether I should put petrol in the car.' I said, 'Why did you have Raymond's car?' The appellant said, 'He asked me to burn it but when he gave it to me it had no petrol so I rang him and asked him if I should put petrol in the car'." 1. Detective Maree asked the appellant if he was prepared to be interviewed about what he just said, to which the appellant said yes. Detective Maree then left to set up the interview room, and when he returned, he said the following occurred: "A. I said to the [appellant], 'Crespin, come with me.' The [appellant] stood up and began to leave the cell. I looked into the cell and saw a number of documents on a bench inside the cell, including a section 10A form. I said to the appellant, 'Bring those documents with you.' The [appellant] picked up the documents and I saw a scrunched-up tissue on top of those documents. I said to the [appellant], 'You can throw that in the bin,' and I indicated the tissue to him. The [appellant] said, 'No, Raymond gave it to me, it has his hair. He told me to leave it in the car when I burn it.' I looked closely at the tissue and I saw it had what appeared to be a number of human hairs wrapped up inside it. I took possession of the tissue and the hair from the [appellant]. I said, 'Have you got anything else on you?' The [appellant] said, 'Yes,' and produced a receipt from the BP Service Station, Kingsford dated 2.31am on 1/2/2003. I also took possession of that receipt. The [appellant] said, 'I went and put petrol in the car. You can go there and see me. He asked me to hit him. I have been a black belt since I was 16. Don't you think if I wanted to hit him.' The [appellant] paused. I said to the [appellant], 'Are you prepared to be interviewed about what happened last night?' The [appellant] said, 'Yes.' I said, 'Okay, come with me now and I will speak to you further about what has happened'." 1. Detective Maree gave evidence that he then escorted the appellant to the interview room but that before the interview could commence, the appellant asked for his solicitor to be present. Detective Maree gave evidence that the appellant said, "I want to tell you what happened but I do not want to say anything that may incriminate me". Detective Maree gave evidence that the appellant was then moved to a cell adjoining the charge room to speak to his solicitor and that a short time later, he was advised by the appellant's solicitor that the appellant was not going to participate in the interview. Detective Maree confirmed at trial that he was not able to ask the appellant any questions in an interview. Accounts Given by appellant to Medical Practitioners 1. Dr Jeffrey McDonald was the consultant psychiatrist at St Vincent's Hospital where the appellant was admitted from 2 to 4 February 2003. 2. Dr McDonald gave evidence that the appellant was conveyed to the hospital by an ambulance after he was found unconscious, collapsed, and not responsive on the floor of the cells at the Surry Hills Police Centre. Dr McDonald gave evidence that the file recorded that the appellant admitted to taking soap with the intention of killing himself, and that the appellant denied the charges and repeatedly stated that he had been "set up". 3. On 3 February 2003, Dr McDonald saw the appellant for around 30 minutes in his capacity as a psychiatrist. With the assistance of his notes, Dr McDonald gave the following evidence of the appellant's account: "[…] He gave an account of entering a room, feeling cold and feeling 'drunk', though he told me that he hadn't been drinking any alcohol and was not intoxicated. He described to me in very vague terms a bloody scene with at least two young people, picking up a pistol, putting it in the front of his shorts and a bag with money. He then repetitively told me 'I did not help them. Oh God, nobody will ever forgive me,' in a very tearful and remorseful state." 1. The notes of Associate Professor Kay Wilhelm (a psychiatrist) which were tendered through Dr McDonald, recorded the following account by the appellant: "[…] Told some events of a man whom owes him money, asking to see him, then to burn his car and hit him on head to make it look as though he had been kidnapped. He told all this coherently, advised to talk to lawyer ASAP and police notified of the same." 1. Dr Lawrence Varga was a general practitioner at Long Bay Hospital who was the doctor on duty and saw the appellant from 4 February 2003 onwards. Dr Ellis was a Senior Psychiatric Registrar who saw the appellant on 9, 10 and 12 February 2003. Dr Ellis' notes were tendered through Dr Varga and recorded the following account by the appellant regarding the offending: "Says he was asked by a friend Raymond CHEN to hit him, take belongings from his house and burn his car in an insurance scam. He agreed after much pressure and after drinking ½ bottle of wine which he says affected him greatly. He hit CHEN with binoculars and drew blood. When he arrived at CHEN's apartment found 3 bodies and a gun. He took the gun and CHEN's belongings and left them at a friend's house. He recognised the gun as CHEN's. He had looked after the gun for CHEN in the past. He was arrested when he drove CHEN's car home." 1. Dr Robert Reznik was a psychiatrist at Long Bay Hospital who also gave evidence confirming that the appellant told him "he thinks Raymond has set him up". Evidence of Ms Richards 1. Ms Richards said that on about 7 February 2003, the appellant called her on the telephone from gaol and they spoke for "a couple of minutes". She described their conversation as follows: "A. I asked him if he had a good alibi. I asked him if he had an alibi. He said 'yes'. I said 'Is it strong?'. He said 'yes'. Throughout the conversation he was crying and I was telling him to hold on and I think I repeated again to him 'is this alibi strong' and he said 'yes'. He also mentioned, told me to give my children a hug and a kiss. I think I might have asked him what happened and he replied with he went – Raymond had asked him to get some things from the unit and he went there and he saw the people and I said 'Were they already dead?', and he said 'yes' and he was so scared and he was crying the whole time, it was very hard for him to get any words out." 1. Ms Richards gave evidence that she spoke to the appellant "probably a week after on the phone" but that she could not recall speaking about the offence on that occasion. She said that the first time she visited the appellant in gaol was inabout April 2003 (three weeks after the preliminary hearing at the Local Court) but that they did not speak about the offence on that occasion either as her parents were with her. Ms Richards said that the next time she spoke to the appellant about the offending was maybe the weekend after her first visit. She described their conversation as follows: "A. Again I asked if his alibi was strong and he said 'yes'. He said Raymond had set him up. He said that Raymond had come over to our place and that he'd hit Raymond over the head and left him on the lounge with, I believe some towels or a T-shirt tied around his head, and Raymond had asked him to go and get some things from his place and when he got there that he had found the bodies already, already dead." Evidence of Mr Keats 1. Mr Keats gave evidence that on 8 February 2003, he went to visit the appellant at the hospital section of Long Bay with his wife and another friend. He said he spent "probably an hour" with the appellant and described their interaction as follows: "Q. Doing the best you can, can you tell us what you said to him and what he said to you about the circumstances that brought him to prison? A. In the context of both my wife and I were very upset. Crespin was very upset. There was a lot of crying and it was very difficult. That's the sort of scenario that we were involved in, plus we were in an environment we had never been into before, having been in the gaol. There was – my main aim, I was totally staggered at what all this was about. I asked a question to Crespin, 'What's going on? What's happening?' And Crespin replied, like, he didn't do it. I said, 'Well, you know,' like it was all sort of – I suppose it was very emotional in sort of asking questions. […] […] A. He said that – he was telling me about the fact that the fellow Raymond had asked him to hit him on the head. We sort of had a bit of background information on what had gone on from the family. We were all that day in the morning meeting, trying to sort of clean up his unit. So we had a bit of background. He told me that during the time in that night Raymond – I didn't understand all the answers I got, but he's told me that Raymond asked him to hit him. He hit him. He obliged eventually. He used a shirt and some tape to try and stop the bleeding. He told me that he was – he went to – that Raymond had insisted taking his car to go to the unit to pick up a bag and a gun and I'd asked him did he see anybody there when he was there and he told me that he hadn't seen anybody. I think that about covers my recollection of what was said." 1. On 3 March 2003, Mr Keats received a handwritten letter from the appellant. The letter was tendered in the trial and contained the following: "[…] I want all of you to know Raymond is playing up his last cards. I want to make the record straight. I'm not gay, bi-sexual or a killer. I've been done by a manipulative man who promised to sponsor my brother Eloi to Australia by getting him a Visa. The so-called lady I was having an 'affair' with was to marry him so he could stay. I obviously misjudge people, putting total confidence in Raymond. I never kill and never will and I'm simply glad the Court system here is not like in Benin and I will have my say. […] After driving over 10,000 km marketing tiles for Raymond and I decide to get paid back as a gambler. He decide to get […] rid of once [and] for all of everybody standing on his way. […] I don't have debt. He owes me money and now it me accused of stealing from him. The truth will come out. I don't want anybody to support me throughout this ordeal but believe it better that I made the point clear that I am not a gay, paedophile, child molester or thief. […]." 1. Mr Keats gave evidence that he replied to the appellant within the week through a typed letter. He agreed that he received another letter back from the appellant a few weeks later in reply. The second letter from the appellant was tendered in the trial and contained the following: "[…] What happen to me in the last two months could only be described in a fiction movie but it's a reality and I'm living it. […] will lay down all my finance details to the Court and my assets too show them I'm not running any scam or illegal activities. I'm glad at least banks keep details for five years […] whether what had been said about me is or are true or lies I will be the only one to prove it and I'm writing to do that. My stupid actions is putting everybody life at risk and I'm sorry but if I can go back and change things, otherwise I would, so I am asking you to forgive me. The truth will come out and alive I will rebuild my life. As everything I did so far is fading away before my eyes and there is nothing I can do to stop it. […]." Evidence of Mr Jean Adanguidi 1. Mr Jean Adanguidi gave evidence that he became aware that the appellant was charged with murder in around March 2003 after the appellant stopped answering his phone calls. Mr Jean Adanguidi gave evidence that he had not spoken to the appellant since his arrest but that the appellant wrote him three or four letters. He said the letters were "a bit unspecific" and did not mention anything in detail in relation to the events which led to the appellant's arrest. Mr Jean Adanguidi also confirmed that he did ask the appellant directly why he was in jail and his answers were "non-specific" but that he "mentioned that a friend of his or their children had lost their lives". The appellant otherwise did not tell him what had happened. Psychiatric Evidence of Dr Westmore 1. At trial, Dr Westmore was called by the appellant to provide his expert opinion as to whether the appellant had a mental illness defence available to him, owing to a probable diagnosis of schizophrenic illness. Dr Westmore gave evidence that he had met with the appellant on three occasions in 2003 and 2004. 2. What follows is a summary of Dr Westmore's evidence at trial, including his evidence about the expert opinions of other psychiatrists. 3. Dr Westmore was not called to give evidence as part of the appeal and was not involved in any reconsideration of his opinion. His evidence was as follows. 14 May 2003 Consultation 1. Dr Westmore first saw the appellant on 14 May 2003 in B Ward, Long Bay Hospital, for the purpose of assessing his fitness for trial. On this occasion the appellant told Dr Westmore that he intended to plead not guilty to the charged offences, stating "I didn't do it". The appellant said that at the time of the offending he was self-employed in a cleaning business, living with his wife and two children aged three and one in a rented property in Maroubra. 2. The appellant said he had not met the victims before, and they were a family of somebody he was doing business with. He confirmed there were four victims, three of whom died and one other person. It was clarified he knew the fourth person but not the three deceased persons. He and the fourth person were planning business together to sell products in Africa, for example, cheap products like t-shirts. He denied kidnapping the fourth person. 3. On the day of the incident the appellant stated he had seen the fourth person and "just as usual he came to my place". He confirmed he had left some bags in a woman's unit, and that there was a weapon in one of the bags but that he did not know about any blood on the weapon. He said the weapon belonged to the fourth person he had referred to. 4. He said he had had half a bottle of wine and thought he had been intoxicated. He said he had nothing to do with the murder or the alleged kidnapping. 5. As to his past medical history, the appellant told Dr Westmore that he had surgery to his sinuses and had recently been diagnosed with neurosyphilis. The appellant stated that he first saw a psychiatrist about nine years earlier in Africa and was hospitalised for a few weeks but could not give more details. When asked what symptoms he had, he said he had gone to school but during the lessons he would just stare. He was not listening to the teacher. He had started yelling and screaming at school. When asked directly if he had heard voices he said "yes, at the time there was a voice asking to recount the lesson he had previously attended". He said, "the voice was male, single and internal", which means inside his head. He could not remember if he was treated with medication, but said he remembered being handcuffed and hosed. There was no psychiatric follow up. 6. The appellant did not consult a psychiatrist at any time after this occasion of hospitalisation until he was admitted to prison following the homicides. 7. The appellant told Dr Westmore that in the previous four months he "was having hallucinations, voices". The voices were different, and he could hear a lot of people talking but was unable to tell Dr Westmore what the voices were saying. The only voice the appellant recognised was that of a small boy. 8. When asked by Dr Westmore if he received messages from the television or radio the appellant confirmed that he did for about one month before he was placed into prison and for about two months after being placed into prison. He explained that he also saw things like people wearing white coats and he thought people in the television were talking to him, these hallucinations were still occurring "fairly often". The appellant confirmed that symptoms were decreasing with time, with the assistance of medication. 9. During the course of the examination, he started looking around the room at the walls and ceiling and said "I still hear voices". 10. The appellant said he was a non-smoker and a heavy regular drinker. At the time of the examination, he was taking an antipsychotic medication (Zyprexa) and Valium (a minor tranquiliser) twice a day and an antidepressant he could not name. He denied illicit drug use. 11. The appellant denied any knowledge of family psychiatric problems. He reported there was some violence towards him at school and that a priest sexually interfered with him when he was 7 or 8 years old. He completed high school and studied electronics at university in Benin. He came to Australia in 1996 on a scholarship from the International Olympic Committee to train for the 400 metre hurdles. He said he did some training in Australia but worked as a kitchen hand and cleaner. He did a computer course and worked for a computer company assembling computers. He did security work from 1997 until sometime in 2002 and ran a cleaning business. 12. He married a 22-year-old Anglo Australian woman in 2001 with whom he had two children who were happy and healthy. They all visited him regularly. 13. In determining his fitness to stand trial, again Dr Westmore noted at a point during the discussion the appellant appeared to become distracted, and confirmed the appellant was being distracted by auditory hallucinations. The appellant said he was having trouble concentrating and tended to drift off. 14. Dr Westmore's observations from the mental state examination were: "I found him to be pleasant and cooperative and that he maintained good eye contact. He spoke mainly in response to questions and then in a relatively limited fashion. The tone of his speech was flattened. I thought his affect was blunted, that means unreactive, and his mood state restricted and possibly depressed […] He described auditory hallucinations and ideas of reference. He presented otherwise as being an alert historian. His premorbid history, that is his history before these difficulties arose, suggested that he was of at least average or possibly above average intelligence." 1. In terms of diagnosis on that occasion Dr Westmore referred to the psychiatric history in Benin, then summarised the presenting issue thus: "Four months before he was charged he reports again having auditory hallucinations, multiple voices, only one of which he recognised. One month before being placed into prison he said he was getting special messages from the radio and television. He reports seeing things and he was able to acknowledge his symptoms had decreased since he had been placed on medication. […] I thought his history was consistent with him having suffered a psychotic illness." 1. Dr Westmore noted that if the appellant had neurosyphilis then the differential diagnosis (the range of possible diagnoses) might be that he had an organically derived psychosis, arising from his neurosyphilis or schizophrenia. 2. As to his fitness to stand trial, Dr Westmore thought he had a generally good understanding of the various requirements about fitness and demonstrated some ability to learn about those matters where his knowledge was poor. His main concern was that the appellant was showing signs of mental illness, being distracted with reduced attention and concentration, and appeared to be responding to auditory hallucinations. Dr Westmore thought: "a trial of this type would be lengthy and complex and I was concerned about a propensity that he might be distracted during the trial and not able to follow all the points of the trial and I thought that affected his fitness." 16 February 2004 Consultation 1. Dr Westmore saw the appellant again on 16 February 2004. 2. On this occasion the appellant again said that he intended to plead not guilty on the basis that he "didn't do it". The appellant told Dr Westmore that he had spent 11 months in D Ward (the psychiatric unit at Long Bay Prison), being discharged from that unit in November 2003, at which time he moved to another section of Long Bay Prison. Dr Westmore thought this significant stating "patients are rarely kept there unless there's an absolute necessity". The appellant also continued to see a psychiatrist every fortnight and was taking medication (two types of antipsychotics and one antidepressant) which he thought was helping and made him more relaxed. 3. The appellant still complained about voices; however, he said that the medication helped to reduce the voices, and he was now "less troubled" by them. The appellant continued to receive psychotic experiences from the television and radio, and these were not decreasing in frequency. 4. During the mental state examination, Dr Westmore indicated that the appellant sat quietly and maintained good eye contact and spoke in a non-expansive fashion in response to questions. His tone of speech was flat, and his rate of flow of speech was normal. The appellant's affect was blunted and unreactive and mood state restricted. The appellant described continuing problems with auditory hallucinations and ideas of reference, but the auditory hallucinations were troubling him less now than previously. Dr Westmore noted that on this occasion the appellant did not appear to be distracted by auditory hallucinations and appeared to be alert and attentive. 5. Dr Westmore was again of the opinion that the appellant had a mental illness. He noted that he was receiving regular psychiatric care and medication. His illness was showing some responsiveness to treatment but had not yet gone into remission. He believed the appellant was fit to be tried. 24 March 2004 Consultation 1. Dr Westmore saw the appellant again on 24 March 2004, and remained of the view that the appellant was fit to be tried. The purpose of this assessment was to provide an opinion as to whether he would be eligible for a mental illness defence or to determine whether he suffered substantial impairment at the time of the alleged murders. Dr Westmore concluded on the balance of probabilities that the appellant had a mental illness defence open to him. 2. The appellant explained that he intended to plead not guilty and stated, "I wasn't well when it happened". Dr Westmore asked in what way he was not well, the appellant said, "I didn't know what I was doing". When asked directly if he was suffering from mental symptoms at the time the appellant responded "Yes" and stated, "I was hearing voices and I thought the people were out to hurt me". 3. The appellant stated he had heard voices for about three or four months prior to the incident and they were male and internal. They were stating "I'll get you". He could not hear some of the voices clearly. He could not say where the voices came from. He had not seen doctors in relation to these voices but had told his wife about them. She had advised him to see a doctor. 4. He said the victims were "Raymond's family". Raymond was his friend. He had known Raymond for about three years and had met him while he was a security guard in the apartment block where Raymond lived with his family. Prior to the incident he had never met Raymond's family. 5. The appellant said prior to the incident "Raymond came to me and told me that he was having problems with his family" and that "they are running his life for him and anything he has to do he has to ask them". The appellant said "[t]hat night he asked me to go there and kill them". The appellant asked if he was sure and Raymond said "yes, if I am his friend now, he needs me". The appellant said "I said I couldn't do it". The appellant said that Raymond said "if I'm his friend now, he is in a bad concentration, I should show it" (that is, the friendship). Raymond had given the appellant "two guns to clean up for him before" (previously). Raymond asked for them back: "I went to give him one and he gave me that one and asked me to go to his place. I went to the cinema first where [the appellant] worked as a cleaner and after I came home Raymond was sitting and very upset. He said if I didn't want to do it to tell him and I said I would do it but it is very hard knowledge. Because he was upset, I didn't want to continue the discussion. I left him at my place". 1. The appellant stated: "I went to his place with a gun. When I got there I went to the unit, went to the bedroom. His wife was sleeping and I hit her with the gun. His son came to the bedroom with a tennis racquet and started hitting me. We started to struggle and I shot. When I was running outside, I saw the daughter on the phone. I ran to her and shot." 1. The appellant further said "before I left my place Raymond said he left something on the table to collect for him. I collect for him and I run away from the unit". Raymond told him "it was money in the bag". The appellant denied attacking Raymond or tying him up. He denied saying he wanted to possibly leave the country, and that he had no reason to leave the country. He denied taking money from Raymond's vehicle and denied saying he was a member of a Slovenian gang. The appellant also stated that he had not taken money from Raymond's home and that he did not know what was in the bag. 2. The appellant said that Raymond was lying when he said the appellant had tied him up. He said his behaviour was wrong "because nobody deserves to die". 3. The appellant still heard voices "a few times a day" (as at the time of this consultation in March 2004). 4. His presentation in this mental state examination was the same as the previous one. 5. Dr Westmore noted that on this occasion he provided a different history. He reported he was responsible for bashing one victim and shooting two others. 6. The appellant provided Dr Westmore with both a psychotic and non‑psychotic explanation for his behaviour, although the differentiation of the two was not clear. The psychotic explanation was that he heard voices telling him to "help Raymond", and the non-psychotic explanation was that his friend Raymond had asked him to kill members of his family. 7. Dr Westmore opined that the appellant suffered from a psychotic illness, probably schizophrenia but that a wide range of medical investigations needed to be done. He was now (that being March 2004) acknowledging that he committed the acts, and giving two different types of explanations, a psychotic and non-psychotic explanation. He disputed some of the facts and stated that Raymond was lying. Dr Westmore asked for, and received, more information and history from St Vincent's, and from Long Bay prison hospital in relation to the appellant. 8. Dr Westmore stated: "I felt on the balance of probability that he was psychiatrically ill at the time of the homicides. I noted that he had not given me a psychotic explanation for his behaviour, although I have felt his account had a bizarre and unusual quality. I said on the balance of probability his mental illness played a direct and relevant role to the triple homicide. I thought he would have a mental illness defence available to him in that I believed he was suffering from a disease of the mind, that is, an acute psychotic illness, which would have totally deprived him of his capacity to know that he ought not do the act. I thought the history he gave was consistent with him suffering a severe psychotic episode with a range of perceptual disturbances, paranoid thoughts, confused thinking and severe behavioural disturbances." 1. Dr Westmore determined it was unlikely that the acutely psychotic illness would have come upon the appellant suddenly. Acute onset is usually precipitated by other factors such as drug abuse or an intracranial event of some type. 2. Taken to the evidence of the appellant's wife, Dr Westmore thought this sounded more consistent with a person primarily depressed (the appellant still had depressive symptoms) but could be consistent with the beginnings of the acute psychosis. His wife had noted he had hit their son, which was unusual, and was withdrawn whereas he was usually fun loving and easy to get on with. He started to get nightmares and was hardly ever sleeping. He would stay up all night most nights and appeared very tired and out of energy. After they separated on 10 January 2003, she spoke to him on 31 January and he was very depressed, very upset and very quiet. Dr Westmore explained: "Sometimes schizophrenic illnesses are preceded by what's called a prodromal phase where there is a change in the person's behaviour and sometimes their mood, and sometimes their thought processes. Not obviously psychotic, but obviously changed. That prodromal stage can last for weeks or months and then the more frank or florid or acute psychotic symptoms become evident. It may have been a prodromal stage. It might have been depression. I think the ultimate diagnosis in this man is still probably unclear, whether he has a schizophrenic illness or a schizoaffective disorder. I'm not sure whether a condition such as neurosyphilis, which is an organic disorder, has been completely excluded." 1. Dr Westmore then explained that a schizoaffective disorder is a serious psychiatric illness characterised by psychotic symptoms (such as hallucinations and/or delusions) with a significant disturbance of mood (usually abnormally elevated or abnormally depressed). Dr Westmore explained the advantages of a long-term assessment for diagnosis of mental illness. 2. Dr Westmore agreed that Dr Reznik, who had seen the appellant from his admission in D Ward at Long Bay Hospital until some-time after that, had had trouble coming up with a diagnosis. Dr Westmore agreed that there were some inconsistencies in the appellant's symptoms as well as some atypical features of his presentation which complicated the ultimate diagnosis. Dr Westmore's own view was that it is likely he has a schizophrenic illness, probably with a co‑existing depressive illness. A schizoaffective diagnosis would be a reasonable alternative. 3. Dr Westmore was questioned about the behaviour of the appellant during the offending, that being that the appellant likely wore gloves, turned off the electricity in the flat, and spent time in the flat gathering money and valuable property. Dr Westmore was asked if this evidence distracts from his conclusions about the appellant's illness. Dr Westmore stated that the appellant did appear to engage in "very purposeful goal directed behaviour" but that this behaviour did not exclude the possibility that he was mentally ill at the time. It was explained that some patients with mental illness live "active relatively normal lives despite the presence of mental illness". During cross examination, Dr Westmore again emphasised this view. 4. Dr Westmore was asked whether the appellant's initial denials followed by more recent acknowledgments of his responsibility for the deaths undermined his diagnosis. Dr Westmore stated that it did not for reasons he then outlined. A mentally ill person may be aware at some level they committed an offence and deny it as they may get into trouble, but other factors that need to be looked at are as follows: first, that he acknowledges to himself what he did but is deliberately denying it to avoid culpability; secondly, that he suffered a degree of trauma as a result of what he did and he is repressing what he did which is different from deliberately denying; and thirdly, but least likely, that some people who are psychotic have delusional thoughts that result in them not being able to give an account of what they did. 5. Dr Westmore stated, in summary, he was of the view that the appellant had a mental illness defence open to him on the basis of clinical and historical evidence. He pointed to the clinical evidence from St Vincent's Hospital and Long Bay immediately after the offences which showed that he was suffering from a mental illness. Dr Westmore stated that on the balance of probabilities, the appellant had a mental illness at the time of the incident. Dr Westmore stated that if one has a mental illness before and after an offence, it is likely it continued throughout the offence. While it is difficult to link the mental illness directly with the offending, in his experience where people's thoughts become disturbed, their experience of things becomes disturbed. Dr Westmore opined it is more likely than not that the appellant was influenced by his mental illness to a degree at the time of the killing. Cross-Examination of Dr Westmore 1. Dr Westmore agreed that he had only seen the appellant in total for two to three hours. He agreed that Dr Reznik had observed the appellant in the prison hospital for close to 18 months and had come to question whether the appellant was malingering. Dr Westmore agreed that there was little evidence from anyone who was in a position to observe the appellant that he was doing anything to indicate he was responding to voices in his head, for instance carrying on a conversation. Dr Westmore opined that it was rare for people with auditory hallucinations to carry on a conversation with the voices they heard. 2. Dr Westmore was of the view that it was highly likely the appellant knew what he was doing at the time of the offences because of the goal related, purposeful behaviour, and that it was probable that he was aware at the time that what he did was wrong in the sense that if caught he would get into trouble, but that his ability to determine wrongness in a moral sense was likely to be compromised. 3. Dr Westmore was asked, based on the assumption that the appellant lured Mr Shen to his flat with the intention of assaulting him, tying him up and robbing him, and had ready access to rope, gaffer tape and a gun, whether this was consistent with the appellant being psychotic. Dr Westmore responded that it was neither consistent nor inconsistent, but that: "Paranoid patients who, for example, believe that others are trying to, say, harm them may go to elaborate lengths in a very complex way to either trap their perceived persecutor either directly or indirectly. The fact a person is mentally ill doesn't in anyway necessarily deprive them of an ability to plan and act purposefully." 1. When this issue was raised again, Dr Westmore further stated: "What I'm trying to say is that people who are severely mentally ill, whatever their motives are, can act in a very goal directed, purposeful way. It is true some patients with psychotic illness become very disorganised and ineffectual but many, many do not and in a forensic setting, particularly where there are homicides, apart from the spontaneous homicide, which some mentally ill people could do, where it's a planned homicide, there's often very deliberate, detailed planning." 1. During cross examination Dr Westmore agreed that he did not know the appellant's state of mind at the time the offending occurred. Dr Westmore agreed that his opinion was that the appellant knew what he was doing was against the law, but that the appellant did not understand or appreciate that it was morally wrong. It was his opinion that the appellant had a psychotic illness at the time the offending occurred. 2. When asked how long the psychosis or psychotic illness had existed Dr Westmore responded: "Well, the history we have is that for some weeks, possibly months leading up to the incident he demonstrated some changes in his behaviour. It may be depression or it may be a prodromal, or the prodromal [phase] of this later emerging psychotic illness so within certainly weeks prior to the incident." 1. Dr Westmore agreed it was unusual and "almost bizarre" that the appellant made contact multiple times with two of his employees who were cleaning at a cinema whilst Mr Shen was tied up, and the employees did not notice anything unusual about the appellant. Dr Westmore stated it did not say anything one way or the other about whether the appellant was psychotic at the time of the killings. 2. Dr Westmore was asked about the many steps the appellant took to undertake the killings, including the amount of equipment he had with him (including gloves, night vision equipment and a loaded gun), turning off the electricity, and the length of time he was in the flat where the victims lived. Dr Westmore maintained his opinion. He acknowledged he had never asked the appellant about his wearing gloves inside the building. As to the shooting of the younger woman while she was on the phone to the emergency services, Dr Westmore opined that it did not help the diagnosis one way or the other. Dr Westmore acknowledged that there was a discrepancy between the appellant having told him that he shot the younger woman as he was leaving, compared to the evidence showing it occurred 37 minutes before he left, but that "[t]here are aspects of it which are not making a lot of sense". Dr Westmore agreed that the appellant's account was unreliable. 3. Dr Westmore explained that he could not "clearly link these homicides with [the appellant's] mental illness". He stated: "I'm saying, on the balance of probability, because I know how mental illness affects people, disrupts their personal world and I know that people can commit homicides and know they will get into trouble for them but have completely disturbed reasoning about why they committed the homicide and there's a very big distinction between these things and I think it is more likely than not he knew he would get into trouble. We have evidence of, maybe, him setting up alibis and maybe him doing other things but we are at a disadvantage to try and work out exactly what he was thinking but on the balance of probabilities, and that's as strong as I have said, his ability, if he is mentally ill, as I believe he was, that he was able to reason and come to rational conclusions about his actions, even though they were purposeful and goal directed was, on the balance of probability, affected by his mental illness." 1. Dr Westmore agreed that there was no evidence that the appellant held any delusional belief about any of the murder victims, which was a unique feature to this case. He further agreed that the things done by the appellant which the prosecutor took him through step by step were the sorts of things that a person not suffering from a psychotic illness would or could do. 2. Further, Dr Westmore agreed the appellant's actions after the killings where he went to Ms Tudela's house to drop off bags, together with what he said to Ms Tudela about wanting to keep the bags safe, were very purposeful, and stated "there's no suggestion his mind is not working". Dr Westmore further stated that keeping the bloodied gloves and murder weapon along with the money and jewellery that he had stolen, and giving that all to the girlfriend, was unusual and disorganised. It would be more typical to dispose of the incriminating material, rather than keep it together with the money. Dr Westmore further agreed that if the appellant had not been arrested shortly afterwards, it is likely he would have returned to dispose of the incriminating material. 3. When asked by the Crown Prosecutor whether it is possible that the appellant was not psychotic when he killed the victims but the "sheer horror" of the event itself may have precipitated a psychotic episode in him, Dr Westmore stated "that is possible". Dr Westmore stated that the appellant was psychotic immediately after he was first seen by a psychiatrist. He stated that most trauma induced psychoses do not come on immediately, that the onset can take weeks or months. Dr Westmore accepted that the appellant was not immediately identified as being psychotic by the psychiatric registrar. 4. Dr Westmore agreed that he had engaged in a degree of speculation in forming the opinion that the appellant's ability to consider his proposed actions in a logical and reasonable fashion was affected by his mental illness. He was giving his opinion on the assumption that the appellant was mentally ill prior to the offences, which Dr Westmore believed he was. He had killed the family of a presumed friend, but had no history of acting in such an extreme way before. He had killed effectively three strangers "which is a very unusual thing for a person to do". Dr Westmore stated that the types of people who kill strangers were considered to be either: 1. professional killers; 2. people who have antisocial personality disorders, usually in combination with drug and alcohol problems; or 3. people who are psychotic. 1. Dr Westmore stated the appellant did not fit into the first two categories. 2. Further, although some of the appellant's behaviour was very goal directed and purposeful, other aspects were not well thought out or well‑constructed. These matters in combination, along with Dr Westmore's belief that the appellant was, on the balance of probabilities, mentally ill, were such that he found a relationship between the appellant's illness and his subsequent behaviour. 3. Dr Westmore agreed that the scenario did not involve the appellant killing complete strangers, given he had worked as a security guard in the building where the murder victims had lived, and agreed that there was a difference. He also agreed that they were closely related to a person with whom he did have a close relationship. 4. Dr Westmore was asked what evidence there was, independent of the appellant, of psychotic symptoms prior to the offending. Dr Westmore stated that the appellant's wife reported "changes in him" (which Dr Westmore considered to be more consistent with depression), the history of behaviour (contrasted with the "extreme[ly] uncharacteristic" offending), the alleged physical assault on his child (serious enough for his wife to call the police), and the nature of the killings, including that the victims were strangers, and involved the bashing of Mr Shen's wife in the course of the killings. 5. Dr Westmore stated he was not aware that the appellant and his wife had separated on more than one occasion over arguments, and at times she had left of her own accord and other times he had asked her to leave. 6. Dr Westmore also stated he had not been aware until the previous few weeks that the appellant and Mr Shen had been in an intimate relationship. Dr Westmore stated he could not exclude that their relationship was relevant or significant, and that it needed exploration. 7. Dr Westmore agreed that even if someone was psychotic, they could still know the difference between right and wrong, and that was possible in this case. 8. Dr Westmore was aware of the observations of Dr Atherton, Dr O'Neill, Dr McDonald, Associate Professor Wilhelm, Dr Reznik, Dr Mastroianni, Dr Wilcox, Dr Ellis, and Dr Nielssen, and was asked to comment, which included the following. Dr Atherton 1. Dr Atherton is a psychiatric registrar. He conducted a thorough psychiatric examination of the appellant on 2 February 2003. Dr Westmore agreed that Dr Atherton was unable to detect any psychotic symptoms. 2. Dr Westmore stated that he believed Dr Atherton "got it wrong" notwithstanding that it appears he conducted a close examination of the appellant. Dr Ellis 1. Dr Ellis saw the appellant at the prison on 9 February 2003. Dr Westmore agreed that notes tendered provided a comprehensive record of the symptoms the appellant was reporting. 2. Dr Westmore pointed to Dr Ellis' description that the appellant was having "formal thought disorder", which is a specific characteristic of a psychosis. He also pointed to a number of symptoms reported by the appellant to Dr Ellis "which, unless you were a psychiatrist or a very well-informed member of the public who has read a lot of psychiatric textbooks, it would be very unusual for a person perhaps from West Africa to just recite a whole lot of mental symptoms which are classical of psychiatric illness". Dr Westmore agreed that if his claim that he thought that people on the television were watching him was untrue, that would cast doubt on the reliability of his other symptoms that he described to doctors. 3. Dr Westmore agreed that the appellant told Dr Ellis an account of the offending in which he acknowledges doing something but not acknowledging that he committed three murders. In short, he told Dr Ellis that he had been over to the apartment, but that the people were already dead. Dr Reznik 1. Dr Westmore was directed to the notes of Dr Reznik, who was the appellant's treating psychiatrist and saw the appellant from about 17 February 2003 until about 30 November 2004 (during his time in D Ward and afterwards). Dr Westmore stated that Dr Reznik was: "…treating the patient as if he had a mental illness. He had him in a psychiatric hospital for much of that time and he was treating him with antipsychotic medications and antidepressants." 1. Dr Westmore was aware of two references in Dr Reznik's notes as to the possibility of malingering (from 8 June and 22 November 2004) and said that his review of all of Dr Reznik's notes (including these references) did not affect his diagnosis and conclusions at all. It was not unreasonable, he said, for the treating doctor to keep the diagnostic process open this way. Dr Mastroianni 1. Dr Westmore agreed that Dr Mastroianni, a forensic psychiatrist, conducted a mental state examination on the appellant and subsequently made an entry on 16 September 2004 stating, "? schizo-defective disorder". Dr Westmore further agreed that after Dr Mastroianni saw the appellant on 16 December 2004, he reported his impression was clinically unchanged. Dr Wilcox 1. Dr Westmore agreed that he had read some notes made by Dr Wilcox, a forensic psychiatrist, after she had seen the appellant on 20 October 2003. Dr Westmore noted the similarities between Dr Wilcox's conclusions and his own. The appellant's blunted affect gave her the impression "that he had a very revolving [sic] psychotic illness". Dr Nielssen 1. Dr Westmore was directed to the report of Dr Nielssen, a forensic psychiatrist. When asked to comment on the report Dr Westmore stated: "Dr Nielssen and I essentially agree on the probable diagnosis. Dr Nielssen comments this man probably had a schizophrenic illness. Neither Dr Nielssen or I were able to link his mental illness directly with the offending behaviour […] Dr Nielssen offered the view that he had a defence of substantial impairment." 1. Dr Westmore opined that the observations by all the psychiatrists who had seen him were remarkably consistent. Almost without exception they describe him as having a blunted affect, disturbed mood. They refer to perceptual disturbance. There is a high degree of agreement between all the psychiatrists that the clinical symptoms they see are consistent with a psychotic illness. The history the appellant has provided, that is, the different accounts, is quite significant too, because normally if a false history is given, that false history is adhered to as "unless they are complete[ly] stupid they tend to stick to the same incorrect history". Dr Westmore noted that the appellant had given a lot of different exculpatory accounts and explanations to different people which was unusual. 2. Finally, Dr Westmore agreed that a psychotic illness can have a sudden onset, but it is more likely than not to be gradual. In the gradual period, there may be subtle changes "but there is usually this prodrome which may last weeks or months, but some changes, yes". If there is no change, that does not exclude the onset of an illness. There are lots of different types of schizophrenia. Paranoid illnesses can come on more suddenly without an obvious prodrome. Some of the other types of schizophrenia such as the disorganised type usually have a clearer history of prodrome of a dysfunction and change before the onset of the frank psychotic symptoms. 3. Dr Westmore stated that he thinks the appellant is psychotic, probably schizophrenic. There was a history of change in the weeks preceding the killings, and then immediately afterwards he was thought to be psychotic. The changes described by the wife are likely to have had some significance to the psychosis, possibly a prodrome. 4. It is important to have noted in some detail the evidence at trial of Dr Westmore. That is because it identifies clearly the range of psychiatric opinions available to the jury, which although the jury must have rejected them, provides the context against which the evidence on appeal is to be considered. The evidence of Dr Westmore also informs the evaluation by the Court of whether the evidence heard on the appeal is fresh evidence or whether it is to be categorised as new evidence. Evidence on Appeal: Fresh or New 1. Prior to any detailed consideration of the evidence of Dr Nielssen, to which we will shortly come, it is convenient to recall the difference between fresh evidence and "new" or "further" evidence. Evidence on an appeal will only be held to be fresh if it was not available at all at the time of trial, or else if the exercise of due diligence in the making of enquiries, or searching for or identifying the evidence, did not discover it. See generally the authorities and principles discussed earlier at [9]-[11]. 2. The appellant's case on the appeal was that the post-trial evidence of Dr Nielssen, as supplemented by the evidence of Dr Large was fresh evidence, which was credible, plausible and capable of belief. The appellant's case was that such evidence, in the context of the evidence at trial, was of such cogency as would have been likely to have caused the jury to have entertained a reasonable doubt about his guilt. 3. The evidence of Dr Nielssen on the appeal will now be considered, necessarily in some detail, to enable the requisite evaluation by the Court as to whether or not the appellant has satisfied the tests described. 4. The putative fresh evidence of Dr Nielssen (whose opinions were originally called by the Crown), upon which the appellant now relies touches upon the subject of whether the appellant suffered from a mental disorder at the time he committed the three homicides on 1 February 2003. The conviction ground, alleging miscarriage of justice affecting the verdicts, is argued on the basis that the putative fresh evidence is relevant both to the defence of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990, and to the partial defence of substantial impairment by abnormality of mind provided for in s 23A of the Crimes Act. The Context of the Trial 1. The Crown had served before trial, a report of Dr Nielssen dated 27 July 2004, in which he expressed opinions against the availability of the mental illness defence but supportive of the partial defence. The content of that report, including the opinions expressed in it, were available to the appellant at his trial. He was able, if he wished, to elicit evidence of those opinions, including by seeking to tender the report (or any part of it) as part of his case. 2. The appellant's trial counsel opened to the jury on evidence that she expected to lead from Dr Westmore that at the time of the homicides the appellant "did not appreciate the nature and quality of his physical acts or that he did not know that they were wrong". Defence counsel informed the jury that she would invite them to return special verdicts of not guilty by reason of mental illness, thereby invoking s 38 the mental illness defence. There was no reference in defence counsel's opening to the partial defence. 3. When Dr Westmore, whose evidence is set out in detail earlier in this judgment, was called, the questioning of him by both counsel was framed in terms of "mental illness" and the criteria recognised at law upon which the jury would be directed to determine whether the appellant knew that his acts were wrong, in particular whether, by reason of mental illness, he had been unable to reason with a moderate degree of calmness in relation to the moral quality of what he was doing. Those matters were relevant to the mental illness defence. Up to the conclusion of Dr Westmore's evidence, the jury had not been told anything about substantial impairment and, no doubt for that reason, the questioning was not couched in the language of the partial defence. That feature of counsel's questions was noted and commented upon by the trial judge at the close of the defence case. Notwithstanding the terminology of the questions, answers given by Dr Westmore were relevant to the partial defence, which was raised in cross‑examination of Dr Nielssen when he was called by the Crown in reply. Dr Westmore's answers were the subject of submissions when the jury were addressed on the partial defence. 4. In this appeal, the appellant relies upon the putative fresh evidence as bearing upon both the partial defence and the mental illness defence. The following written submission is made: "235. [… Dr Nielssen] gave evidence at trial in a way that enabled the Crown to argue on liability, and on sentence, that there was at best only a slight impairment of relevant functions because of mental illness on 1 February 2003. He gives evidence now [in the putative fresh material] supporting [the defence case on] this issue. There is now unanimous expert evidence … that the partial defence is made out. 236. The importance of the evidence goes beyond substantial impairment (and in any event there are no relevant orders that could be made, in the appellant's submission, to limit the impact of this fresh evidence to the substantial impairment issue). The appellant had a solid case presented at trial that he was not criminally responsible. It was nonetheless a difficult case in light of the brutality of the killings, the indicators of planning, and the paucity of direct explanation from the appellant of delusional thought processes at the time he killed. When he was acutely psychotic, he lied about his involvement and by the time he was no longer acutely psychotic there was an inevitable detriment in his capacity to explain retrospectively his thinking at the relevant time. 237. The fresh evidence renders a much less significant gap between Dr Westmore and Dr Nielssen on the complete mental illness defence than was presented at trial." 1. It is not accurate to speak of the partial defence being "made out" by expert evidence. Such evidence may be relied upon to satisfy the jury or this Court that the appellant acted under a substantial impairment of his capacities but whether the impairment was of such a degree as to warrant a reduction of criminal liability to manslaughter would be for a jury to decide in a broad common-sense way, applying community standards. Also, the Court does not accept the submission that the appellant's case at trial on the mental illness defence was "solid" or that the putative fresh evidence reduces the "gap" between Dr Westmore and Dr Nielssen. At trial, the defence was impeded both by Dr Nielssen's evidence against it and by the fact that the appellant did not give a history, to any psychiatrist, of psychiatric symptoms having caused him to act as he did or having deprived him of understanding or self-control. In the additional evidence relied upon in the appeal, Dr Nielssen does not, even now, support the mental illness defence. Nor is there any further account from the appellant of any psychosis, or psychiatric symptoms causing him to behave as he did. 2. It is necessary to set out and examine the expert opinions that Dr Nielssen gave at or prior to the trial, before identifying precisely what additional evidence is now sought to be relied upon. Only by reviewing the trial evidence can the Court determine whether the evidence tendered on the appeal may properly be characterised as "fresh" and whether its absence from the trial constituted a miscarriage of justice: Mickelberg v The Queen at 301 (Toohey and Gordon JJ); Abou-Chabake at [63]. Evidence at Trial Concerning the Partial Defence 1. The evidence at trial and the "fresh" or otherwise character of the evidence now tendered on the appeal may usefully be considered first in relation to the partial defence. If the Court should find that the additional evidence cannot be characterised as fresh so far as it touches upon that topic and/or if the Court should find that the absence of the additional evidence did not give rise to a miscarriage of justice insofar as the trial was concerned with the partial defence, then that finding may resolve, or at least clarify, whether the additional evidence is fresh in relation to the complete defence of mental illness and/or whether its absence caused a miscarriage of justice in the trial in that respect. 2. Under s 23A as it was in force when the homicides occurred, the expert evidence of Drs. Westmore and Nielssen at trial was relevant to whether, on 1 February 2003, the appellant's capacity to: 1. understand events; or 2. to judge whether his actions were right or wrong; or 3. to control himself (collectively "the capacities"), was "substantially impaired by an abnormality of mind arising from an underlying condition". The appellant bore the onus on the balance of probabilities of proving that when he carried out the homicides, he was substantially impaired in one or more of the three capacities specified. 1. As earlier noted at [29], Dr Westmore concluded that the appellant did not know whether his actions were right or wrong, thus providing evidence capable of sustaining the mental illness defence. 2. Dr Nielssen referred to the factual issue as a question of whether the partial defence was or was not "available" to the appellant. If the jury were satisfied, on the balance of probabilities, of the fact of substantial impairment, then it was a matter for their judgment whether "the impairment was so substantial as to warrant liability for murder being reduced to manslaughter". 3. The verdicts returned, being guilty of murder on each of the three counts, do not disclose whether the jury were not satisfied as to the appellant having been substantially impaired in one of the relevant capacities or whether they concluded that substantial impairment was operative but not to a sufficient degree to justify reducing his criminal liability. The learned trial Judge so observed in his SJ as follows: "61 As to the defence of substantial impairment, the jury were instructed that the offender had to prove that at the time of the acts causing death his capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from a underlying condition and, if so, that the impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. Plainly, the offender failed to prove both those things, but a finding that the offender's capacity to understand events or judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition would not of itself be inconsistent with the verdicts." 1. Two alternative possibilities as to an underlying mental condition that may have caused the appellant to suffer from an abnormality of mind at the time of the homicides were explored in the evidence of Drs Westmore and Nielssen: first, that he may have been suffering from acute psychosis on 1 February 2003 at the time of the murders and, secondly, that he may have been affected by prodromal symptoms that were part of the development of a mental disorder that culminated in the frank onset of schizophrenia from no later than 9 February 2003. Context for Dr Nielssen's Rejection of Acute Psychosis as at 1 February 2003 1. The evidence at trial included the notes of Dr Atherton, a psychiatry registrar at St Vincent's Hospital, who examined the appellant on 2 February 2003. In that examination, the appellant gave no history of having experienced, up to that time, either psychotic symptoms or other prodromal symptoms of an impending psychosis. The notes included the following: "Denies any involvement. Denies unusual experiences, persecution or change in life. Off work past two weeks in order to 'sort out his stress' – claims this relates to domestic problems. Recent sleep is disturbed but nil changes from [normal] + nil concerns. Mood 'fine' 'now I'm shocked'. Re murder. Client claims he must have been set up but unable to explain how this happened. No idea of previous trouble. Content: denies abnormal beliefs, nil evidence of persecution. Perception [normal]. Insight – denies mental illness, need for treatment or hospital. Nil evidence of mental illness or disorder which warrants [medical] input. Difficult historian is concerned of privacy in view of police and repeatedly stated 'I didn't kill them'. Calm most of time but 2 x tearful episodes. Speech [normal] Thought form: [normal]." 1. There was evidence before the jury that on multiple occasions after 2 February 2003, commencing the next day, the appellant described psychotic and/or prodromal symptoms that he had experienced prior to the homicides. Dr McDonald, whose evidence has already been referred to briefly, gave evidence in the defence case of statements made by the appellant during a 30 minute examination on 3 February 2003. By reference to contemporaneous notes, he said this: "[The] patient presented to me as very fearful, highly aroused, hypervigilant, suspicious, paranoid and frequently unable to answer questions in an appropriately orientated or coherent fashion. So a question such as, 'Where do you come from?' was answered, 'I don't remember'. The patient also presented as distressed and dysphoric, and his level of distress fluctuated during the course of the brief interview. […] He also described perceptual disturbances. He described hearing a male voice which he recognised as or judged to be coming from behind him and he would turn to look for the source of this voice. He told me that the voice was saying, 'I'll get you'. He described the police who were outside the hospital room as 'my friends' who were looking out for his protection. I noted from speaking to the staff who were reading recorded notes on the file that he was not eating, and he wasn't drinking, and when I questioned the patient about this, he told me that he was fearful that the food would be poisoned, food or water would be poisoned and that was the reason he was not eating or drinking. He told me that he was in great danger, that he had been hearing this voice 'since yesterday', and he voiced fear that 'something is being taken away from me' but was unable to elaborate." 1. Dr McDonald was unable to make a diagnosis on the basis of this single examination, but he said: "His mental state to my observation suggested both psychotic and dissociative features." 1. Also on 3 February 2003, Dr O'Neill, a neurologist, examined the appellant. The doctor was called in the defence case and gave the following evidence by reading from his contemporaneous notes: "When I came into the room he looked scared, jumped whenever he was touched, or nervous on unexpected noise and would not speak for some time. He ultimately admitted to being frightened. He said he was […] 'empty in the head'. He eventually started to cry. He couldn't remember his previous employment status. He thought he might have been a driver. He could not recall any past illnesses or need for medications. He last saw his family […] 'a couple of days ago' and cannot think of any illness in the family. He did from time to time look up over the back of the bed. He said he was sure there was someone there 'talking to me'. He said 'he has always been there'. He had never seen the person. […] 'He hides'. He seemed to find this quite frightening." 1. Dr O'Neill had recorded the following impressions from his contact with the appellant on 3 February 2003: "[He] is clearly very frightened. The history pertaining to noises and the imagined person raises the possibility of psychotic illness." (Emphasis in original) 1. Through Dr McDonald, defence counsel tendered the notes of Dr Kay Wilhelm from 4 February 2003, referred to at [100] above. The notes included these entries: "He is alert, cooperative but appears to be having hallucinations – … looks around room suspiciously – says he can hear voices but there is no one there when he looks. Told some events of man who owes him money asking to see him then to burn his car + hit him on head to make it look as though he had been kidnapped. He told all of this coherently. Still not eating + drinking because he doesn't trust the food – ie appears to be delusional." 1. On 4 February Dr O'Neill recorded the following on a discharge referral form: "Patient reported auditory hallucinations – underwent psychiatric [review] ([Dr] McDonald) – confirmed psychotic, paranoid, dissociative features." 1. The appellant was discharged from St Vincent's Hospital that day into the custody of police, to be transported to Long Bay Corrections Centre on remand. Dr Susan Tomlinson provided a discharge letter addressed to a medical officer at Long Bay Prison Hospital, which included the following: "Mr Adanguidi and his investigations were reviewed by Dr O'Neill on Monday 3 February. On physical examination there was no neurologic or cardiorespiratory abnormality. Mr Adanguidi did report to Dr O'Neill that he was hearing threatening voices saying 'I've got you now'. It was unclear as to whether this was a new phenomenon or not. Subsequent review by Dr G McDonald, Liaison Psychiatrist, confirmed that Mr Adanguidi was reporting auditory hallucinations, was displaying dissociative, psychotic and paranoid features and had also not been eating and drinking due to paranoid ideation that he may be poisoned. Antipsychotic medication was not commenced." 1. On 9 February 2003 at the Prison Hospital Dr Ellis conducted an extended examination of the appellant. The results were recorded on five handwritten pages of notes, which set out the following history taken from the appellant: "Reports several week history of believing strangers are looking at him, having him followed. People on the TV have been looking at him, so he stopped watching it. Hearing voices (male [and] female) outside his head. Say 'we're going to get you' and 'help me'. Believes people continue to watch him and can 'feel' it somehow. Attributes the voices to dead people. Feels was very scared and perplexed. Sleeping 4 hours/night but this is usual. Finds his thoughts scattered." 1. Dr Ellis recorded the results of a mental state examination and his impressions and diagnosis, which included the following: "Initially very guarded and quiet. Staring at non-apparent stimuli. When asked says it is the voice. … Aspect perplexed and fearful … Easily distracted by internal thought. Derails and adds irrelevant detail to speech. Referential delusions. Auditory hallucinations. Accepts they may be an illness. Account of offence is disjointed and thought disorder makes it difficult to follow. Oriented. [Impression] Recent onset psychiatric [symptoms] present prior to incarceration but exacerbated now. Schizophreniform Disorder … Brief psychotic episode." 1. Dr Ellis immediately ordered commencement of the appellant on Risperidone, an antipsychotic indicated for schizophrenia. According to the doctor's notes of 10 February 2003, the appellant's wife, Ms Alicia Richards, phoned him and said she had not observed any unusual or psychotic symptoms in the appellant, such as voices or delusions. Otherwise, she confirmed the appellant's history. Evidence of Psychotic Disorder from 9 February 2003 1. In their evidence at trial both psychiatric experts accepted the correctness of Dr Ellis' diagnosis as at 9 February 2003. They both accepted that the appellant experienced psychotic symptoms on that date and thereafter, and that he had, for over two years up to the date of trial, been treated in custody with antipsychotic medication as a schizophrenic patient. 2. In his report to the Crown dated 27 July 2004, Dr Nielssen said that he diagnosed the appellant at that time as suffering "probable schizophrenic illness". In his evidence in chief at trial, when asked whether he adhered to that view, Dr Nielssen said: "I still think it's a strong possibility. I put probable. It is quite difficult for me to make a firm diagnosis but the early accounts, particularly of Dr Ellis, whose opinion I respect, of some signs of disorganisation of thinking typical of psychosis and more typical symptoms elicited at that time made me say it's a strong possibility that he does have that mental illness." 1. Importantly, that was the probable diagnosis at the date of the report and at trial. 2. Dr Nielssen gave evidence in chief of the history he had taken from the appellant in examinations on 29 June and 27 July 2004. That history, referred to in more detail below, included that the appellant said he had heard the voice of a young boy since September 2002, increasing over time up to 1 February 2003. The voice had asked him to do things and told him that he was being watched. He suspected that people outside his house were watching him and that he was being followed. He thought his house might be "bugged". In the weeks prior to 1 February 2003, the voice prevented him from sleeping. He had thought that he was being watched by the television and that it was sending messages to him. Dr Nielssen gave the following answer concerning the basis for his probable diagnosis as at 27 July 2004: "Q. What weight did you attach to the medical records that you had been provided with when you came to that probable diagnosis of a schizophrenic illness in June of 2004? A. I base everything on the medical records really because I found the history elicited from Mr Adanguidi to be unreliable and there was very little in the way of objective evidence in the interview with Mr Adanguidi of mental illness and hence I have really relied completely on the St Vincent's and the Corrections Health medical records and relating that to my experience with the way people with mental illnesses behave." 1. In cross-examination at trial, Dr Nielssen expressed a reservation about whether the appellant's probable schizophrenic illness should be regarded as chronic, viewed prospectively from the date of the trial. That reservation was not significant having regard to his acceptance that the disorder was reliably diagnosed from 9 February 2003. He gave these answers in cross‑examination: "Q. Now if I understand you, you say you accept on the balance of probabilities that Mr Adanguidi was acutely psychotic, at least by the 9 February 2003? A. Yes, on the balance of probabilities, yes, I accept that. […] Q. You, based on the material you had and your interviews with him on the 27 July [2004], came up with the probable diagnosis of schizophrenic illness? A. Yes, based on the observations and opinions of other psychiatrists more than anything. Q. And from what you have said what impressed you was not just the reports that Mr Adanguidi made to doctors but also their objective observations about him? A. Yes. […] Q. Do you accept on the balance of probabilities that in the year 2003 Mr Adanguidi had a chronic psychiatric illness? A. I think on the balance of probabilities that is more likely than not. He was acutely unwell at the time Dr Ellis [on 9 February 2003] and Dr Reznik [on 10 July 2003 (Ex 8)] saw him." 1. The expert witnesses' acceptance of Dr Ellis' post-homicide diagnosis of psychotic schizophreniform disorder meant that the first step for the jury in resolving the factual issue in this part of the case was to determine whether the appellant was experiencing acute psychosis or prodromal symptoms of a schizophreniform disorder, eight days prior to Dr Ellis' examination, when the homicides took place. The second step was for the jury to determine whether any acute psychosis or prodromal symptoms that he may have been experiencing at that earlier time substantially impaired his mental capacities thereby giving rise to the partial defence. At trial Dr Nielssen Did Not Accept Acute Psychosis at the Time of the Homicides 1. In his pre-trial report to the Crown dated 27 July 2004, Dr Nielssen accepted that the appellant had an underlying psychotic illness at the time of the homicides that would likely have impaired the three capacities set out in the legislation. The relevant parts of that report are as follows: "Mr Adanguidi reported symptoms of psychotic illness from the time of his assessment in St Vincent's Hospital, which he said began in the weeks prior to the offences. Assessments after his arrest elicited a history of moderate depression after his separation from his wife [on 10 January 2003]. Mr Adanguidi was assessed by several psychiatrists and trainee psychiatrists in the weeks after his arrest, who elicited a consistent history of symptoms of psychotic illness and also recorded objective features of psychotic illness. The persisting nature of the symptoms and the pattern of symptoms reported was consistent with the presence of schizophrenia, rather than transient psychosis. [...] Mr Adanguidi may be able to raise the defence of substantial impairment by reason of abnormality of mind, as he has an underlying condition within the meaning of section 23A of the Crimes Act, as amended, that on the balance of probabilities resulted in an abnormal state of mind at the time of the offences. The presence of underlying psychotic illness is likely to have affected his perception of events, as he probably experienced hallucinations of voices disturbing his concentration and affecting his reasoning ability. His abnormal state of mind would also have affected his ability to judge right from wrong, in that he may have experienced delusional beliefs arising from the symptoms of illness. His capacity to control his actions is also likely to have been impaired, as acute psychosis is known to be associated with impulsive and irrational behaviour." (Emphasis added). 1. The appellant's lawyers had a copy of that report prior to and during the trial. They cross-examined Dr Nielssen upon its contents. Nothing in it constitutes fresh evidence on the appeal. 2. In his evidence in chief, Dr Nielssen in substance retracted his opinion that the appellant had been suffering from "an underlying psychotic illness" or auditory hallucinations, delusional beliefs or "acute psychosis" at the time of the homicides. The Crown prosecutor's questions were directed to whether or not Dr Nielssen considered that the appellant had suffered from a mental illness, including hallucinatory symptoms, or delusional beliefs on 1 February 2003. When the doctor's answers were negative, the prosecutor did not proceed to ask any questions about substantial impairment. 3. In his evidence at trial Dr Nielssen recounted the history he had taken from the appellant in his examination on 29 June 2004, as follows: "[He] told me that he intended to plead not guilty on the grounds that he was 'sick at the time', that it was a mental sickness. He said, 'If I was not sick I would not have done it'. Mr Adanguidi said that he had experienced hallucinations of voices of a young boy beginning around September of 2002. He said that the voices increased over the months and particularly in the days before the offence. He said that the voice was 'asking me to do things, telling me they're out to get me'. He said the voices told him, 'We are watching you', and commented on his movements. When asked about his explanation of the experience, he said that he 'couldn't say', but when offered a range of explanations he said, 'I thought it was witchcraft'. Witchcraft was one of the alternative explanations I offered to him. He said that he suspected that people standing on the street outside his house were watching him, although he did not know who they were or who might be behind it. He said he often thought cars were following him and pulled over several times to let suspicious cars pass. He said that he wondered if his house was bugged and bought a bug detector from a security company in Burwood for $220 to check his flat. Mr Adanguidi said that in the weeks before the offences, the voices prevented him from sleeping and that he got out of bed and sat in the loungeroom with the lights on. He said that he became 'angry at little things' and screamed at his wife. He said that he told his wife that he 'thought someone was watching me' and said that 'she wanted me to go to a doctor'. He said that he did not tell her about the voices and said that he did not seek help or have any kind of assessment until after his arrest. He said that in the weeks prior to the offences he continued to work as a computer technician for Hewlett Packard and in a second job as a cleaner. He agreed that he also investigated buying a newsagency. When taken to the alleged assault of his son in the days before the offence, Mr Adanguidi said that the extent of the assault and the reported injuries were exaggerated. He did not describe an association between the auditory hallucinations and persecutory beliefs and the assault of his son, although he agreed that his mental … instability, contributed to his behaviour. […] When taken to other symptoms reported in the medical records, Mr Adanguidi said that he felt that he was being watched by the television and also that the television was sending him messages. He said he also thought that strangers were looking at him and knew about him. When asked, he said he thought that he was in danger, although he did not say who he thought may have been threatening him and denied ever believing he was in danger from Eastern European gangs as reported in Mr Shen's statement. He denied believing that he was under threat from Mr Shen. […] [Dr Nielssen said that the appellant denied various particulars of the offending that were proved in the file by other witnesses]. He maintained that Mr Shen gave him the gun and also the key to his home and asked him to go to his flat to kill his family. Mr Adanguidi said that he killed Mr Shen's family because 'I felt it was what he wanted me to do. He told me that they would ruin his life'. When asked why he felt he had to help, Mr Adanguidi then said, 'I don't know. I didn't know what I was doing." 1. Dr Nielssen expressed scepticism about the reliability of the appellant's history, as follows: "A. He was assessed to be fairly suggestible in that he did not offer spontaneous accounts of symptoms but readily agreed to symptoms that had been present when they were described to him. Also he agreed to the likely explanations put to him. He told me that auditory hallucinations had abated and did not offer a delusional explanation for the experience agreeing that they were symptoms of an illness." 1. At trial Dr Nielssen adhered to his probable diagnosis of the appellant, as at the date of his examination on 29 June 2004, namely, schizophrenic illness. He was not able to support an opinion that the appellant had suffered that or any other mental illness at the time of the homicides. Significantly, Dr Nielssen said that his inability to support such a conclusion was affected by unreliability of the appellant's account of his pre-homicide symptoms, and the absence of any independent support for the presence of symptoms that would constitute a psychotic illness at that time. 2. The following are extracts of the doctor's evidence in chief adduced by the Crown prosecutor: "Q. Were you able to see anything in the material that you were provided with having regard to your own professional experience that indicated to you that there was some evidence of him suffering from a mental illness before he committed the acts that caused the death of each person? A. Well, there was very little information that supported that. There was his own account of the onset of hallucinations in the months beforehand, although that was not a spontaneous account that was elicited in response to questions. There was also the incident involving his son which may have indicated some morbid change and change in his behaviour. Apart from that I couldn't find anything. There was nothing in his wife's statement at the time of his son's injury or in her other statements. There was nothing in the assessment by the training psychiatrist on the day after the offence. There was very little information to support that he was affected by symptoms of mental illness prior to the offence. Q. […] do you have an opinion as to whether or not he was suffering from a mental illness before the commission of these crimes? A. Well, I think with Dr Westmore in one respect. It's unusual to become mentally ill suddenly without a change, however, I haven't got anything to support that view and it seems, if he has become mentally ill, it's after the offences occurred. […] A. I base everything on the medical records really because I found the history elicited from Mr Adanguidi to be unreliable and there was very little in the way of objective evidence in the interview with Mr Adanguidi of mental illness and hence I have really relied completely on the St Vincent's and the Corrections Health medical records and relating that to my experience with the way people with mental illnesses behave. […] A. I thought that he may well have been malingering when he was describing symptoms to me because he was quite suggestible and readily agreed to things that I put to him. That doesn't mean that he was not mentally ill before, it just may have been difficult for him to describe that state. It certainly was not one consideration. […] Q. Doctor was there something in the way in which the accused reported the symptoms to you that you thought was significant. A. It was more of a lack of spontaneous account really, rather than that the kind of symptoms that he agreed to were inconsistent or atypical, but the other thing I thought was significant is that he didn't really offer a delusional explanation for the symptoms or delusional beliefs arising from the symptoms." 1. Dr Nielssen's answers during cross-examination by trial defence counsel confirmed his retraction of the opinion that the appellant suffered from a psychotic illness at the time of the homicides: "Q. [The] partial defence of substantial impairment is available to a person where at the time of the homicides his capacity either to understand events, judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, do you agree with that? A. Yes. Q. And having seen Mr Adanguidi twice and having looked at the material that was forwarded to you by the DPP, and more particularly the medical records that were forwarded to you, you concluded that Mr Adanguidi may have been eligible for such a defence, do you agree with that? A. Yes. Q. Implicit in that conclusion was an acceptance by you that Mr Adanguidi had an abnormality of mind at the time of the homicides, do you agree with that? A. Yes. Q. And at the time you prepared your report you believed, were of the opinion, that he had a psychotic illness at the time of the homicides, do you agree with that? A. Well I was of the view that he probably had a psychotic illness at least from two days after the event. Actually I didn't really know that, I didn't have the St Vincent's material, but from at least from the time of Dr Ellis's assessment, and hence I assumed that features of that illness were present at the time of the offence as well." 1. As can be seen from the passage of Dr Nielssen's July 2004 report quoted at [223] above, his conclusion that the appellant had suffered from a psychotic illness at the time of the homicides was not a mere assumption based upon subsequent hospital records and other psychiatrists' diagnoses, nor was that conclusion qualified by any doubt about the reliability of the appellant's description of pre-homicide symptoms. 2. Generally, Dr Nielssen's evidence given at trial and the additional evidence from him tendered on the appeal – consisting of his pre-trial report, his post-trial reports and his oral evidence at the appeal hearing – has been difficult to follow and has given rise to reservations about reliability because the doctor has, at a number of stages in his consideration of this case, failed to remind himself carefully of opinions that he expressed on earlier occasions, and has failed to confirm accurately what information was available to him when expressing previous opinions. It is understandable that Dr Nielssen would not have an immediate recall of such matters each time he has returned to the subject across many years. However, when he has proceeded to issue new reports and to give oral evidence without adequate review of the written records of what he has said in the past, contradiction and confusion have resulted. 3. At trial Dr Nielssen agreed that when he wrote his July 2004 report he had concluded that all three faculties relevant to the partial defence would have been impaired and that, therefore, the defence may have been available to the appellant. In explanation of what was in "the St Vincent's material" that he had seen after preparing his report, and which differed from the material he had seen prior thereto, Dr Nielssen said this: "A. Yes, well again I didn't have the specific notes from St Vincent's Hospital. The only St Vincent's Hospital material I had was within the Corrections Health Service records which was a discharge summary from I think a Dr Tomlinson, a neurology Registrar, who I think described the results of Dr McDonald's assessment, so I didn't have the observations made by the trainee psychiatrist [Dr Atherton] at St Vincent's Hospital on the 2 February or Dr McDonald's original notes or Dr Wilhelm's notes." 1. Dr Nielssen accepted at trial that the records of the examinations by Drs Wilhelm and McDonald were consistent with the appellant exhibiting symptoms of an acute psychotic illness on 3 and 4 February. His reason for retracting his conclusion of 27 July 2004, that the appellant had been psychotic on 1 February, was the revelation to him of Dr Atherton's finding that there were no signs or symptoms of psychosis on 2 February. Dr Nielssen did not purport firmly to exclude acute psychosis at the time of the homicides, but was unable to maintain his earlier written opinion in support of that conclusion. The doctor's reasoning is apparent from the following evidence: "Q. Well it's likely, isn't it, based on Dr Ellis's observations on the 9 February, that on the 1 February Mr Adanguidi was experiencing a psychotic illness? A. It's possible but I don't, I can't say that I think it's probable because the next day a doctor [Dr Atherton] saw him and didn't elicit any symptoms of that or find any objective features of it. Q. Sir it would be unusual, if Mr Adanguidi was not mentally ill on the 2 February, for him to be exhibiting the signs on the 3 February observed by Dr McDonald and Dr Wilhelm, wouldn't it? A. Again it's a little unusual to have such a sudden onset." 1. Referring to Dr Atherton's notes of his examination of the appellant on 2 February 2003, Dr Nielssen said this in answer to defence counsel at the trial: "I think the substance of my opinion perhaps changed a little after reviewing that additional medical material, I would have to say that." 1. The doctor's departure from his pre-trial opinion (see [223] above]) could not accurately be characterised as a "little" change. His oral evidence, that he no longer found support for the appellant having suffered from a psychotic illness at the time of the homicides, was an abandonment of his earlier conclusion in the July 2004 report that the appellant was affected by such an illness, which, while not depriving him of an understanding of the nature, quality and wrongfulness of his acts so as to engage the mental illness defence, nevertheless impaired his capacities in the three domains specified in s 23A, and left the partial defence available to him. Evidence of the Phenomenon of a Prodrome 1. At trial Dr McDonald explained during the trial prodromal symptoms of a psychotic disorder in the following terms: "Q. Those symptoms that [the appellant] reported to you which you observed, would you classify those as prodromal symptoms? A. No. Q. Why not? A. Prodromal has got a whole different connotation to it, prodromal symptoms. Q. Perhaps you could tell us what prodromal symptoms are? A. There are many different prodromal symptoms but that is a term which refers to the early stages, developing prior to the frank onset of a psychotic disorder, frequently in young people, which might include some social disorganisation, some inappropriateness of behaviour, some change in their normal characteristic way of relating to other people, perhaps at a later point the development of more frankly psychotic symptoms such as voices, namely auditory hallucinations or disturbances of thought form, possibly the development of paranoia leading on to frankly delusional material." 1. Both Dr Westmore and Dr Nielssen accepted before the jury that the onset of psychosis in schizophrenia is not instantaneous, at least where it is not induced by drug intoxication or trauma, which the doctors did not consider relevant to the facts of the case. The following are extracts of Dr Nielssen's evidence at trial, in cross-examination, concerning progress towards the onset of a diagnosable schizophreniform disorder (there is some repetition of the doctor's evidence quoted at [229] and [234] above, as the evidence overlaps two subjects): "Q. And you agree with Dr Westmore that it's unusual to become suddenly acutely psychotic? A. Yes. Q. Now you will agree, or you have agreed, that it's not the sort of illness that would suddenly arise? A. Typically not. It is known to arise and it's described as arising suddenly after traumatic events. Typically, there [are] some signs of a deterioration prior to the product of observing acute symptoms. […] Q. Sir, isn't it right that for a sudden development of psychotic illness you would expect factors like drug abuse or an intracranial event of some type to be involved? A. I would. […]. Q. You would expect, wouldn't you, the illness that was observed by Dr Ellis to have commenced before the 1 February 2003 in some form? A. Well again that was nine days later. I mean typically the prodrome of mental illness is for months beforehand, even years, so yes, I would have expected there to have been some morbid change at least some months before the 9 February. Q. Sir you accepted on the 1 February 2003, Mr Adanguidi on the balance of probabilities had had an abnormal state of mind? A. Yes, that was my recollection of the evidence and it's based on that he probably had the earlier phase of an illness that became an acute psychotic illness. Q. Well, from what you have said, the prodromal period, to your mind, lasts months or years, is that right? A. Typically it does but there are exceptions of people who have very acute onsets, say if taking drugs or having been subjected to enormously stressful life events. Q. Well it's likely, isn't it, based on Dr Ellis's observations on 9 February, that on 1 February Mr Adanguidi was experiencing a psychotic illness? A. It's possible but I don't, I can't say that I think it's probable because the next day a Doctor saw him and didn't elicit any symptoms of that or find any objective features of it. Q. Sir it would be unusual, if Mr Adanguidi was not mentally ill on the 2 February, for him to be exhibiting the signs on the 3 February observed by Dr McDonald and Dr Willhelm, wouldn't it? A. Again it's a little unusual to have such a sudden onset. Q. And by the 9 February you accept that he was acutely psychotic? A. Yes, I accept that." 1. The two doctors' acceptance in general terms of the phenomenon of a prodrome was, on its own, an insufficient basis from which to infer that this specific individual experienced, at the time of the homicides, prodromal symptoms of any particular nature and/or severity. As Dr McDonald explained, prodromal symptoms are quite different from frank psychosis. The generalised evidence that there would likely have been a prodromal stage, and that the schizophrenia diagnosed on 9 February 2003 would not have sprung from nothing, would not have been expected, on its own, to satisfy the jury that by 1 February 2003 the appellant must have been suffering any particular symptoms of a mental illness, let alone that his inferred and undefined prodromal symptoms must have been such as to have impaired his capacities or deprived him of an understanding of the nature, quality or wrongfulness of his acts (for the purposes of the mental illness defence). Evidence of Observed Pre-Homicide Symptoms, Possibly Prodromal 1. Apart from the doctors' evidence at trial that a prodrome usually occurs, the only other bases upon which they could give expert opinions about an underlying condition that may have impaired the appellant's capacities on the night of 1 February 2003 were: 1. the evidence of changes in his behaviour from mid-2002, given by Ms Richards and by his brother Jean; and 2. the appellant's own retrospective reports of auditory hallucinations, paranoia, delusions and ideas of reference, which he described to treating doctors and to Drs Westmore and Nielssen, commencing from his examination by Dr Wilhelm at St Vincent's Hospital on 3 February 2003. 1. As to (a), the evidence at trial of Ms Richards and Jean Adanguidi is summarised at [57]-[70]. To recap, the essentials were that from about two weeks after the appellant's return from Benin, in June 2002, Ms Richards said that the appellant ceased to be fun-loving and easy to get on with as she had known him to be over the preceding three and a half years; that he withdrew from her and became uncommunicative; that he had nightmares, hardly slept, suffered deteriorating memory, became very vigilant and security conscious after a break-in to their home in December 2002 and that, on 10 January 2003, he uncharacteristically slapped one of their children. The appellant complained to Ms Richards of headaches and of pain in his eyes, particularly in January 2003. Jean Adanguidi said that after the appellant returned to Australia, in June 2002, he no longer made regular phone calls to Jean in Benin, as he had done before, and when he did speak on the phone in the months leading up to the homicides, he complained of nightmares, insomnia, headaches and rapid heartbeat. 2. At trial Dr Nielssen's responses in cross-examination to questions about the evidence of those witnesses included the following: "Q. Well if I can ask you to assume that her [Alicia Richards'] evidence was that he was, Mr Adanguidi, prior to about June 2002 and for the three and a half years she'd known him up until that point, a fun loving man who was good company, easy to get on with, was a caring father, if you could accept that from me that he was until the incident with the son […] not ever violent? […] Q. That he was a caring father who spent a lot of time with his kids, that up until the incident with [his son], he was not violent? A. Yes. Q. If you can assume those things, and if you can assume that the woman named Karen Keats who had known Mr Adanguidi for at that point about seven or eight years, described him as lively and especially animated? A. Yes. Q. If you could also assume that after about June 2002 he, according to Miss Richards, became withdrawn, he wasn't joking like he usually does, he got nightmares, he was hardly ever sleeping, he could stay up all night most nights and he appeared very tired and out of energy, if you could assume that that was her observation or they were her observations of his behaviour after June 2002, when he returned from Africa, up until the time that she left him on the 10 January 2003, is that the sort of behavioural change that might be described as that prodromal phase? A. Yes, well, that would be one explanation for that sort of a change, yes, not sleeping, being more withdrawn, troubled by nightmares. Q. Now you were of the view that the assault on [his son], I think you said, may have been evidence of a morbid change, is that right? A. I think I put it to Mr Adanguidi that it was a little instability and I think I also put it to him that he was experiencing symptoms at that time, but he denied that. His actual account was that the account of the assault was exaggerated and untrue. Q. So, he was actually not accepting the words that you were offering to him, is that what you are telling us? A. Yes, […] he was happy to agree that he was more unstable in that time, that he had become unwell, but he didn't attribute it to acute symptoms. A. […] The last question was that finding a bug detector in his flat was evidence of an abnormality of mind? The answer was that it could be. I was going to add that he was also a security guard. Q. It's consistent with him feeling paranoid at that time, do you agree? A. Yes, it is consistent with that." "Q. In your experience the sort of people who do kill people they have never met are either professional killers, people who suffer with an antisocial personality disorder, usually under the influence of drugs or alcohol, or people with a psychosis? A. Yes, I think they are the three main categories. Q. Now, Doctor, the fact that Mr Adanguidi killed three people he'd never met, the fact that the behaviour was extreme and extraordinarily brutal, the fact that he had no history, apart from the assault on [his son], of violent behaviour, and the changes to his personality that were reported by Alicia Richards, don't those things suggest on the balance of probabilities that on the 1 February 2003 Mr Adanguidi was suffering with a psychotic illness? A. I don't know if necessarily those conditions that you have put to me of themselves suggest that on the balance of probabilities. And we did forget one other category of people who kill strangers and that's people who are engaged in violent robberies. Usually antisocial – Q. There is no evidence, is there, that you found that Mr Adanguidi suffered with an antisocial personality disorder? A. No. Q. On the balance of probabilities sir, isn't it likely that Mr Adanguidi was mentally ill on the 1 February 2003? A. Well I think it's difficult for me to say from the information that I have but taking the balance of probability to be 51%, or more likely than not that I accept that he was mentally ill nine days later, I think it is quite probable that he was affected by some features of an abnormality of mind on the 1 February [2003]. […] Q. And the features that you reported in association with your conclusion or your opinion given to the DPP on 27 July 2004, are still your view, aren't they, that he had an abnormal state of mind at the time of the offences on the 1 February 2003? […] A. Well I think that probably, and again we are looking at a probably, and the balance of probabilities if he was acutely psychotic on the 9 February, then there was probably some change apparent by 1 February, just based on the typical course of these kind of illnesses. Q. And given what you have just said, the presence of the underlying psychotic illness is likely to have affected his perception of events as he probably experienced hallucinations and voices disturbing his concentration and affecting his reasoning ability? A. Again, I am not as certain about that as I was at the time I prepared the report because in the interim I have read the assessment of the medi‑Registrar [Dr Atherton] who didn't elicit those symptoms and I am not sure that those symptoms were present on the 1 February." 1. In those answers Dr Nielssen clearly disclaimed an ability to express an opinion about the quality and severity of any prodromal symptoms that may have lain beneath the changes in the appellant's behaviour that were observed in him by Ms Richards and Jean Adanguidi over the months preceding 1 February 2003. In the last answer he reiterated his inability to conclude that on 1 February 2003 the appellant's symptoms included "hallucinations and voices" that affected his perception of events or his reasoning ability. The doctor's consequent inability to give an affirmative opinion that the appellant's capacities were substantially impaired, as the jury would have to find in order to give the appellant the benefit of the partial defence, was evident in the following further answers (again there is some repetition of evidence quoted above, because of the overlapping relevance to more than one subject): "Q. Sir you accepted on the 1 February 2003 Mr Adanguidi on the balance of probabilities had had an abnormal state of mind? A. Yes, that was my recollection of the evidence and it's based on that he probably had the earlier phase of an illness that became an acute psychotic illness. Q. Well, from what you have said, the prodromal period, to your mind, lasts months or years, is that right? A. Typically it does but there are exceptions of people who have very acute onsets, say if taking drugs or having been subjected to enormously stressful life events. […] Q. Now sir isn't it true that his abnormality of mind on the 1 February would have affected his ability to judge right from wrong? A. Yes, it may have had some [effect] on that, yes. Q. And wouldn't he have had trouble reasoning about the matter with a moderate degree of sense of composure? A. Again it would depend on how severe the abnormality affected his reasoning ability. It didn't affect his capacity to form purposeful action, hence I don't think the [effect] on his reasoning in other respects was very great." […] "Q. The fact is his ability to consider the moral wrongness of it would have been compromised, don't you agree? A. Yes. It may have been compromised to some degree, yes. Q. So that he could not reason about the matter with a moderate degree of sense and composure? A. Well, again it's a matter of degree. I acknowledge that there may have been some effect on his reasoning ability. Q. Are you able to answer that question? On the balance of probabilities could he reason about the matter with a moderate degree of sense and composure? A. Well, I think I've already explained the limitations that I have in making inferences about Mr Adanguidi's reasoning ability at that time. I'm saying there would have been some effect on his capacity to reason." The Appellant's Own Accounts of Pre-Homicide Symptoms 1. Reference has already been made (at [227]-[229]) to Dr Nielssen's evidence that he did not regard the appellant's post-homicide histories as sufficiently reliable to support an opinion that he suffered from acute psychosis at the time of the homicides. The same perception of unreliability prevented Dr Nielssen from relying upon the appellant's account of what he experienced up to 1 February 2003 as a basis for concluding that prodromal symptoms of a lesser order than acute psychosis were nevertheless sufficient to impair the appellant's capacities and provide a foundation for the partial defence. Without a reliable history from the appellant, Dr Nielssen could not express any expert opinion as to the nature or severity of any prodromal symptoms and therefore could not opine that they would have caused substantial impairment of any faculty. 2. This impediment to Dr Nielssen forming an opinion in support of the partial defence, or the mental illness defence, was made explicit in his evidence at trial that the appellant did not assert to him that he was caused to act in the way that he did by any symptoms that he attributed to the period immediately before or during the homicides. Dr Nielssen's evidence included the following: "Q. In the course of that history, you say that the accused told you that he had killed the Shen family because he felt it was 'something that he wanted me to do'? A. Yes. Q. Did you understand who he was referring to when he said 'he'? A. Yes, I understood it was Mr Shen. Q. Did he complain to you or say to you that at that time or at any time that there were voices operating either inside or outside of his head directing him at that time? A. No. Q. Did he ever make any mention to you of voices saying to him at that time that he had to help Raymond? A. No, I didn't elicit that history. […] Q. Were you able to find any relationship between his reported symptoms to you and to the other doctors, and his behaviour on the occasion when he killed these three people? A. In the symptoms he reported, no, I didn't find any relationship, neither as a result of the perceptual disturbances that were recorded, that is the voices and the content of the voices, or any delusional beliefs." 1. That evidence gave rise to a profound difficulty in the way of persuading the jury that the appellant was substantially impaired, in any relevant capacity, by any of the symptoms that he claimed to have suffered prior to his arrest, or that others had observed in him up to that time. Dr Westmore said that on only one occasion, on 24 March 2004, had the appellant suggested a connection between symptoms and his conduct, saying that "the voices were asking me to help Raymond [Shen]". Dr Westmore did not regard that element of the appellant's history as significant to his ultimate opinion. Apart from that inconsequential exception, the jury had no evidence that the appellant had ever asserted that any symptoms of mental disorder he may have been suffering had caused him to act, or interfered with his perception of circumstances, or disrupted his powers of reasoning or his understanding of right and wrong, or deprived him of self-control. 2. The jury had evidence of the appellant's detailed planning and preparation for the homicides, including that he had acquired night vision equipment and a gun. They had evidence of his careful execution of the plan, such as using security codes for access to the victims' apartment and switching off the power to that and the adjoining apartments. The jury had evidence that the appellant asserted to Mr Shen shortly before committing the homicides that he was under duress from an Eastern European gang, that he needed money to pay a "Mascot cop" and that he had killed a pharmacist. After his arrest, he did not assert that he had acted upon any such delusional beliefs but denied involvement in killing the three victims and said he had been "set up". 3. The absence of any history from the appellant that pre-arrest symptoms had caused him to misperceive circumstances, or to misunderstand the wrongfulness of what he was doing, or to lose control of himself, left the psychiatric experts without any assertions from the appellant himself as to a relationship between any mental disorder he was suffering and the killings. That would inevitably have impressed the jury in a manner similar to the way in which it informed the following findings of Barr J in the SJ: "[62] ... The experts all agreed that psychotic illness tends to develop slowly. There is usually a more or less long prodromal phase during which symptoms emerge and gradually intensify until they become recognisable for what they are. [64] The intricate detail of his preparation and precaution shows that he was acutely aware of the legal wrongness of what he was doing and that he had the ability to reason and plan in great detail. Nothing about the objective facts of what the offender did suggests in any way that he was suffering from any mental illness or other abnormality of mind or inability to reason calmly or control himself. The degree of control he exercised over himself during the whole of the evening is quite remarkable. He was quiet and watchful when appropriate. He was ruthless and violent when it suited his purposes. [65] It is difficult to draw any conclusions from what the offender himself has said from time to time. He has given widely differing versions of the facts to different people on different occasions … . [66] I do not accept that the offender killed the Shen family because he believed that voices had told him to do so or because he believed that they had told him to help Mr Shen. I do not accept that he believed that Mr Shen had asked him to do so. I do not accept that the offender believed that Mr Shen wanted him to do so. The evidence for the offender's belief that voices were speaking to him at the time of the murders is weak. … [68] There were noticeable changes in the offender's behaviour during the weeks immediately before the murders. ... [69] These facts, which do not depend upon any history given by the offender, show that changes were probably taking place in his perception of events. The evidence supports the conclusion that the offender was developing an unreasonable belief that others might be watching him. [70] I think that what the offender's wife was witnessing was the prodromal phase of a psychotic illness. I think that that illness continued to develop after the murders. [72] At the time of the murders, however, although the offender was developing an illness, he was not badly affected by it in any relevant way. The evidence offers no recognisable connection, causal or otherwise, between the offender's state of mind and his commission of the acts causing death. He may have felt ill. He may have felt uneasy about people watching him. He may have been troubled in his mind. The difficulty is to understand how such feelings or beliefs could have affected the way he acted in any way that made him less blameworthy, less responsible for the consequences of his acts. There is no satisfactory evidence that his stories about the gang, the pharmacist, the cop and the photographs were the product of mental illness. His capacity for logical thought and planning was unimpaired. There is no ready distinction attributable to his probable state of mind between the legal and the moral wrongness of what he was doing. ..." (Emphasis added) The Putative Fresh Evidence 1. The putative fresh evidence consists of three reports of Dr Nielssen prepared after the trial at the request of the appellant's solicitors dated 29 October 2006, 11 September 2007 and 29 December 2014, a report of Dr Large dated 10 September 2009, and a body of academic papers concerning the results of research into the statistical relationship between first episode schizophrenia and the commission of violent crimes, particularly homicide. Dr Nielssen's Report of 29 October 2006 1. In his report of 29 October 2006 Dr Nielssen stated that he had reinterviewed the appellant on 10 October and that he had considered, inter‑alia, the following material: "4. The transcript of the evidence given by [the appellant's] brother, Jean Adanguidi. 5. The transcript of evidence given by [the appellant's] wife, Alicia Richards. 7. A Medical Certificate by a psychiatrist, Dr Pascal Agoncan, of the Centre De Sante De Jacquot in Benin, dated 2.6.06" (sic) 1. Dr Nielssen summarised the evidence of Jean Adanguidi and Ms Richards as follows: "[The appellant's] brother said in evidence that 'I noticed when he was around thirteen years old that he suffered from mental troubles'. He said 'his speech was not making much sense' and 'he became uncooperative and agitated'. He said that [the appellant] was admitted to Jacquot, the only psychiatric hospital in Benin. His brother gave evidence that in a telephone conversation in January 2003 [the appellant] reported experiencing nightmares and that he couldn't get to sleep. Alicia Richards gave evidence that [the appellant] had memory loss that 'got a lot worse near the end, to the point that I thought he might have … a medical problem'. She reported that he consulted a doctor over memory loss. She said that he also complained of chest pain and headache. After she complained to the police over the assault on their son, she said 'he needed extra help himself'. She did not report him complaining about hearing voices. She said that she tried to get him to see a counsellor, because she 'thought he needed extra help himself'. She said that before they separated 'he was very withdrawn' and that 'he would stay up all night most nights and he appeared very tired and out of energy'. She said that she noticed a change soon after his return from Africa in June 2002 and described him as 'very depressed, very upset'. She agreed that his behaviour in hitting their son was unusual." 1. Dr Nielssen's "Further Opinion" was then given in the following terms, so far as relevant to the conviction ground of the appeal: "[The appellant's] brother gave evidence of an episode of disturbance in communication and behaviour resulting in an admission to a psychiatric hospital in Benin when [the appellant] was thirteen years old. Ms Richards gave evidence of a change in [the appellant's] mood and behaviour in the period prior to the offences. This additional information, which was not available to me at the time I gave evidence in his trial, is consistent with the view that [the appellant] had a pre-existing mental illness and was in the early phase of a further episode of illness in the months before the offence. My opinion does not rely on the report of Dr Agonkan, although the report is consistent with the evidence given by [the appellant's] brother." (Emphasis added). 1. It is not correct that the information from the appellant's brother and wife was "additional" and "not available when [Dr Nielssen] gave evidence" at trial. Jean Adanguidi's evidence about the appellant's treatment at the psychiatric hospital in Benin during his early teens was to the same effect as what the appellant himself had provided to Dr Nielssen in June 2004, 10 months before the trial. That information had been recorded under the heading "Psychiatric history" in Dr Nielssen's report of July 2004. Ms Richard's evidence of the appellant's deteriorating memory in the weeks before 1 February 2003 had been led in the Crown case prior to Dr Nielssen giving evidence. Dr Nielssen had read Ms Richards' witness statement before preparing his July 2004 report. Prior to being called in reply, he was also provided by the Crown with an oral summary of her testimony. During cross-examination, defence counsel had put to Dr Nielssen the substance of Ms Richard's evidence (see [242] above). Dr Nielssen told the jury that he had read the transcript of Dr Westmore's evidence. Dr Westmore had recited the substance of Ms Richard's evidence, at length, for the purpose of contextualising some of his answers. That was pointed out to Dr Nielssen during cross-examination in this Court, and he accepted that in fact Ms Richard's evidence "must have been" available to him when he testified before the jury. 2. In Dr Nielssen's 29 October 2006 report, his opinions on the appellant's diagnosis and prognosis at that date have no bearing on the issues that the jury had to decide and do not advance the present appeal. On the questions of whether at the time of the homicides the appellant lacked understanding of the nature, quality and wrongfulness of his acts (the mental health defence) and whether he suffered a significant impairment of any of the capacities specified in s 23A, the closest that this report goes to expressing any opinion at all is the portion emphasised in the passage quoted at [252] above, namely: "[The evidence of Jean Adanguidi and Ms Richards] is consistent with the view that [the appellant] had a pre-existing mental illness and was in the early phase of a further episode of illness in the months before the offence." 1. Evidence of that opinion is not fresh merely because Dr Nielssen has expressed it on the basis of information that he says he only acquired after the trial. As explained above, that statement is not correct. Further, even if the information had not been provided to Dr Nielssen before he testified at trial, it could have been provided with reasonable diligence on the part of the appellant's legal representatives and the opinion he subsequently gave on 29 October 2006 could have been elicited in cross-examination. The true position is that the information was available to Dr Nielssen and so much of it as the appellant's counsel thought appropriate, was put to him and on that foundation he expressed the opinions that have been extracted from his trial evidence earlier in these reasons – which are unsupportive of either the mental health defence or the partial defence. Lack of Cogency in Dr Nielssen's Opinion of 29 October 2006 1. Understood as new (rather than fresh) evidence, Dr Nielssen's "further opinion" quoted at [252] is insufficiently cogent to satisfy this Court that the appellant's capacities were substantially impaired. The Court is not satisfied that if this opinion had been presented to the jury they, acting reasonably, would have to have found substantial impairment, and would have to have proceeded to the second stage of the partial defence – the evaluative determination of whether the impairment was of an order that warranted reduction of criminal liability. Still less does Dr Nielssen's further opinion persuade the Court that, if the jury had received it in the terms of his report of 29 October 2006, acting reasonably they would have been bound to find such a degree of impairment as to warrant verdicts of manslaughter. 2. Several aspects of the opinion deprive it of cogency. First, it is expressed in opaque and imprecise terms. The only substantive conclusion is that the appellant "had a pre-existing mental illness and was in the early phase of a further episode of illness in the months before the offence". What is the "mental illness" of which the appellant was having "a further episode"? Is this a reversion to Dr Nielssen's opinion of July 2004, that at the time of the homicides the appellant had an "underlying psychotic illness" involving hallucinations and delusional beliefs and amounting to "acute psychosis" (see [223] above). That is the opinion that the doctor was unable to support at trial, for detailed reasons then given, including unreliability of the appellant's history. If the doctor intends, by this report, to revert to his first opinion, by reference to information that he has had from the outset, then without coherent explanation the opinion can have no weight. 3. One may also ask: what is meant by "a further episode of illness"? Dr Nielssen does not appear to be suggesting in his report of 29 October 2006 that the appellant had suffered from an episode of schizophrenia or any other mental illness prior to February 2003, relative to which his mental state at the time the homicides could have been "a further episode". If Dr Nielssen did intend to make that suggestion, he has not identified any basis for it. His report expressly states that he does not rely upon Dr Agonkan's certificate regarding the appellant's hospitalisation in Benin during his early teens. Further, the information from Jean Adanguidi concerning that event does not establish that it was an episode of psychosis, nor that the appellant had a psychotic illness. 4. Secondly, Dr Nielssen's use of the expression "early phase of a further episode" conflates the distinct concepts of a prodromal phase and an episode of psychosis. The distinction was made clear to the jury in the evidence of Dr McDonald (see [237] above) and it has been elaborated to this Court in Dr Large's report of 10 September 2009, tendered by the appellant as part of the further evidence. Dr Large's report includes the following: "… I rely upon some well-established definitions of schizophrenia, prodromal schizophrenia and first episode schizophrenia. Schizophrenia is a severe disabling and chronic mental illness characterised by abnormalities of cognition (impairment in thinking, memory and attention), perception (including auditory hallucinations), belief (including persecutory delusions), behaviour (including self-harm and violence). […] The prodrome of schizophrenia (sometimes called prodromal schizophrenia) is not defined in the official classification systems but is confirmed retrospectively after patient has developed the syndrome of schizophrenia. It is the period between the onset of behavioural and psychological abnormalities that predate psychotic symptoms such as hallucinations. Typically, the symptoms include depressed mood, social withdrawal, odd thinking and a decline in academic and occupational functioning. The prodrome of schizophrenia ends when more clearly experience symptoms of psychosis, such as hallucinations, delusions and marked disorganisation of thinking emerge. The period between the emergence of the symptoms of psychosis and the initiation of treatment with antipsychotic medication is the first episode of schizophrenia. Of relevance to the Adanguidi case is the recent meta‑analysis conducted by my research group that estimated that the average duration of the first episode schizophrenia is greater than one year […]. It is unusual for first episode schizophrenia to have a duration of hours or days. It can be difficult to distinguish the prodrome of schizophrenia and first episode schizophrenia especially if the patient does not recognise or conceals their symptoms and when their own language and cultural barriers that affect identification of symptoms. The period after the first experience of treatment with antipsychotic medication is referred to here as previously treated schizophrenia." (Emphasis added). 1. In light of the above "well-established definitions", Dr Nielssen's October 2006 opinion that the appellant "was in the early phase of a further episode of illness in the months before the offence" is obscure. By those words, Dr Nielssen appears not to accept that the signs and symptoms found by Dr Ellis on 9 February 2003 constituted the appellant's "first episode of schizophrenia" in Dr Large's nomenclature. If Dr Nielssen means to say that this "further episode of illness" was a second episode of schizophrenia, then it is not apparent what is comprehended by "the early phase" of that second episode. The putative fresh evidence before the Court does not suggest that there may be a prodromal phase relative to a second episode, or that there are medically recognised typical symptoms of an "early phase" of a second episode. 2. When asked about this during his oral evidence before this Court, Dr Nielssen said "I don't know enough about the first one", referring to the appellant's hospitalisation in Benin for a mental disorder at the age of 13. He said that the schizophreniform disorder diagnosed by Dr Ellis on 9 February "was the first severe episode of unremitting psychosis because it's persisted", whereas he thought the appellant had recovered from the disorder for which he was treated in Benin, "whatever it was at the age of 13", and that he had gone on to lead a normal life. Dr Nielssen's October 2006 opinion remains obscure in the context of his additional oral evidence before this Court. 3. Thirdly, the putative "Further Opinion" in the October 2006 report offers no expert opinion on the critical issue of whether the "early phase of a further episode of illness", that Dr Nielssen attributes to the appellant, involved symptoms of a nature and severity that would have disturbed his mental functioning at the time of the homicides to the degree necessary for the partial defence to be available. 4. Fourthly, the opinion is rendered highly doubtful and unreliable by the circumstance that Dr Nielssen says his departure from his opinion at trial is based upon new information that was not available at the time of the trial, whereas the information referred to was in fact known to the doctor when he gave evidence before the jury and, with that information before him, he expressed opinions in more detail than in the October 2006 report, adverse to the appellant's claimed defences. 5. The report of 29 October 2006 certainly would not justify setting aside the convictions if it were the only item of evidence additional to what was received in the trial. The effect of the report in conjunction with the other putative fresh evidence will be considered in conclusion when all items have been assessed individually. 6. We note that our assessment of Dr Nielssen's 29 October 2006 opinion is substantively the same as the assessment by this Court, differently constituted, in its judgment on the appellant's sentence appeal. Dr Nielssen's Report of 11 September 2007 1. The putative fresh expert opinion evidence in Dr Nielssen's report of 11 September 2007 is contained in the following paragraph (with numbers added for ease of reference): "1 … I believe that on the balance of probabilities [the appellant] did suffer from an abnormality of the mind arising from an underlying condition on 1.2.03. I believe his underlying condition was an emerging psychotic illness that has since evolved into chronic schizophrenia. 2 The abnormality of mind at the time of the offence was impaired reasoning and emotional regulation that is known to be associated with the early phase of psychotic illness. [The appellant] may also have been affected by false beliefs arising from symptoms of schizophrenia that he reported began about five months before the offence. 3 I believe [the appellant's] psychiatric disorder is likely to have significantly impaired his capacity to understand events, judge right from wrong and to control himself at the time of the offence. Emerging psychotic illness is known to be associated with unrealistic thinking, increased anger and hostility, grossly impaired social judgement and high rates of physical violence, particularly homicide offences. 4 I confirm that at the time I gave evidence in his trial on 12.4.05 that it was my opinion that [the appellant] suffered from an abnormality of mind as at 1.2.03 and that the condition substantially impaired his capacity to understand events, to judge right from wrong and to control himself. 5 My opinion is essentially the same as at the time of [the appellant's] trial in 2005. However, I am now able to put the opinion with greater confidence as a result of becoming aware of other evidence, the progress of [the appellant's] illness and the scientific advances in the understanding of the relationship between the early phase of mental illness and irrational violence." (Emphasis added) 1. Those paragraphs are followed by a description of four changes of circumstance that Dr Nielssen says explain the "greater confidence" he now has in his opinion. Before turning to those explanations, it is necessary to observe that paragraph 4 and the first sentence of paragraph 5 above are incorrect. The extracts of Dr Nielssen's trial evidence quoted above show that, while he then thought the appellant suffered from an abnormality of mind, he could not support an opinion that such abnormality substantially impaired any of the appellant's capacities. 2. When asked about this during evidence in chief on the hearing of the appeal, Dr Nielssen gave the following answers: "Q. Have you recently had the transcript of your evidence of the appellant's trial brought to your attention? A. Yes I have. Q. You have seen from the transcript that you did not give evidence at trial that the appellant was substantially impaired by an abnormality of mind from an underlying condition. Is that right? A. Correct, I wasn't asked so it didn't come out, even though it was in my written opinion." 1. The last answer is incorrect. In cross-examination before the jury, defence counsel asked Dr Nielssen directly about substantial impairment but he would not confirm the opinion in his July 2004 report that was favourable to the appellant. 2. The abnormality Dr Nielssen recognised at trial consisted of symptoms consistent with the prodrome of schizophrenia. In paragraphs 1-3 of the September 2007 report his terms "emerging psychotic illness" and "early phase of psychotic illness" do not conform with the conceptual distinction between the prodrome and the first episode of psychotic illness, as reflected in the "well‑established definitions" explained by Dr Large. Dr Nielssen did not, in his evidence at trial, support a retrospective diagnosis that the appellant had a psychotic illness when the homicides were carried out. In the report of September 2007, he does not refer to that position at trial or state that he departs from it. His terms "emerging" and "early phase" must refer to the prodrome rather than to a commenced first episode of psychotic schizophrenic illness. In this Court, Dr Nielssen said that he was referring to either the prodrome or first episode psychosis. 3. The putative fresh evidence from Dr Nielssen referred to in the above paragraphs and contained in the September 2007 report, is a partial reversion to his pre-trial report of July 2004, insofar as he supports substantial impairment of capacities. However, the newer report is based on a view that the appellant's underlying condition was the prodrome of schizophrenia, rather than a "psychotic illness" or "acute psychosis" as concluded in July 2004. 4. The four changes of circumstance by reference to which Dr Nielssen explains his acceptance, in September 2007, that the appellant's capacities were substantially impaired are as follows (with headings added for reference): "(i) St Vincent's Hospital records Firstly, at the time of the trial I had not examined all the notes from St Vincents Hospital, including an account of behaviour consistent with the presence of acute psychosis on 4.2.03 [reported] by Professor Kay Wilhelm, an experienced and highly regarded psychiatrist. (ii) Alicia Richards' evidence I am also now aware of the evidence of Mr Adanguidi's wife, Alicia Richards, who gave an account of memory loss that "got a lot worse near the end" and other symptoms that may have been consistent with the presence of anxiety symptoms, including chest pains and headaches. She also described him as very withdrawn, having nightmares and hardly sleeping. She said that "he would stay up most nights and he appeared very tired and out of energy". She said that he became withdrawn and stopped communicating around June 2002. Ms Richards also said in evidence that she observed Mr Adanguidi to be looking out the window on the balcony and that he was "very depressed, very upset, very quiet when he spoke". (iii) Subsequent course of appellant's schizophrenia It is also now clear that Mr Adanguidi has a severe and chronic mental illness for which he is receiving treatment with high doses of antipsychotic medication. The Justice Health notes show that there have been several exacerbations of illness for which he has required more intensive treatment and he has had at least one admission to the acute psychiatric ward of Long Bay Prison Hospital since September 2006, presumably because of an acute exacerbation of illness that could not be managed in the mental health areas of the Metropolitan Reception and Remand Centre. The relevance of the subsequent course of Mr Adanguidi's illness is that it provides support for the accounts of signs and symptoms of acute psychosis from very soon after his arrest, and also provides some support for Mr Adanguidi's account of the emergence of symptoms of psychotic illness several months before his arrest. At the time of the initial interview I was sceptical of Mr Adanguidi's account of his symptoms because his account of other events was so unreliable, and also because there was little in the way of objective signs of schizophrenia at that stage as he had been treated with antipsychotic medication. Hence my finding of a probable schizophrenic illness was largely based on the observations of other doctors, and the history elicited from Mr Adanguidi was not relied on. I am now more confident that Mr Adanguidi has a severe and disabling form of mental illness and that he was acutely mentally ill around the time of his reception to gaol. Moreover, schizophrenic illnesses generally do not begin suddenly and usually develop insidiously, with a prodromal phase of the illness lasting for months or even years. It is worth noting that although Mr Adanguidi offered an improbable explanation for his apparent involvement in the offences, and gave an account of symptoms of mental illness, he did not take up the opportunity during either of our interviews or during the interviews with Dr Westmore to explain his behaviour in terms of symptoms of mental illness. (iv) Research into relationship between first episode psychosis and violence My opinion has also strengthened as a result of the development of scientific knowledge and becoming aware of existing research about the relationship between the first episode of psychosis and serious violence. I found that 61% of those who committed homicides during psychotic illness in New South Wales between 1993 and 2002 did so during their first episode of mental illness, prior to receiving effective treatment. [Nielssen O, Westmore B, Large M, Hayes R. Homicide during psychotic illness in NSW from 1993 to 2002. Medical Journal of Australia (2007) 186:301-304]. This finding was supported by a review of studies in other countries that reported whether or not psychotic patients had received treatment prior to committing a homicide. We found 16 studies with a total of 1186 subjects, of whom 465 (39.2%) had not received treatment. [Nielssen O, Large M. Homicide during the first episode of psychosis. Submitted to the British Journal of Psychiatry, 2007] There are a number of studies showing high levels of non-lethal violence prior to the first admission for treatment of psychosis. The most compelling evidence comes from studies that link mental health records with criminal histories conducted in Denmark, London, Victoria, which all show a peak of violence offences by schizophrenic patients prior to treatment, a marked decline in violence after treatment and a very low level of new incidents of violence in patients who did not have a conviction for a violent offence prior to the first admission. These studies confirm that the greatest risk of serious violence is during the prodrome and first episode of schizophrenia. The relevance of the new scientific understanding of the phase of psychotic illness and serious violence to Mr Adanguidi's case is that it supports the opinion of the psychiatrists who have assessed him that his behaviour was at least partly due to the effect of symptoms of an emerging psychotic illness." (Emphasis added) 1. With respect to items (i) and (ii) above, it has already been noted that the St Vincent's Hospital records and the evidence of Ms Richards were available to Dr Nielssen when he gave evidence before the jury. Insofar as his conclusions of September 2007 are based upon that information, the appellant was in a position to adduce the opinions on that basis at trial and they cannot be said to be fresh evidence. Further, Dr Nielssen's September 2007 conclusion, that the appellant's capacities were substantially impaired on 1 February 2003, lacks cogency so far as it rests upon the St Vincent's Hospital records and evidence of Ms Richards because, with the same material before him at trial, the doctor said he could not be satisfied of a substantial degree of impairment. 2. Item (iii) above of the changed circumstances, is the post-2005 course of the appellant's schizophrenia. Insofar as Dr Nielssen seeks to explain his revised view of substantial impairment upon that basis, the opinion entirely lacks cogency. In the passages of his trial evidence quoted at [221] above, Dr Nielssen clearly accepted that the appellant had been reliably diagnosed with a schizophreniform disorder on 9 February 2003, and that, on the balance of probabilities, that diagnosis was still valid at the date of trial. He said that in reaching that conclusion he relied upon the medical records of assessment and treatment of the appellant in custody. Evidently his own examinations of the appellant in June and July 2004 had not disclosed any ground for rejecting the post-homicide, continuing diagnosis. The 2007 report does not explain how, in the period of two years since he gave evidence, the subsequent course of the appellant's schizophrenia could have any bearing upon determining the nature and quality of his prodromal or first‑episode-psychotic symptoms at the time of the homicides, or upon the question of whether those symptoms would have caused substantial impairment. For this change of circumstance to be a credible basis for the revised opinion, some explanation would have to be given, because the proposition is counterintuitive. 3. Item (iv) above of the developments said to have given rise to Dr Nielssen's changed opinion on the partial defence, consists of research that has identified a statistical correlation between acts of serious violence and first episode psychosis in the perpetrators of such acts. In the highlighted portion of the above quoted passage of this report, Dr Nielssen suggests that acts of violence are statistically correlated to both the prodrome and first episode psychosis. In contrast, Dr Large understands the correlation to apply only to first episode psychosis, which, as earlier noted, he distinguishes from the prodrome. Dr Large's view of the research is considered further below. 4. In his oral evidence on the appeal Dr Nielssen said this: "[The] data linkage studies, some of them must be referring to prodromal illness because […] they show a contact with the criminal justice system just before the contact with the mental health system." 1. However, he acknowledged that the two research papers cited in his September 2007 report do not make specific reference to the prodromal phase. The doctor's oral evidence to justify his reliance upon the research for a correlation between acts of violence and the prodrome of schizophrenia was not coherent or persuasive. 2. The unsatisfactory state of the evidence about whether violence has been found to be correlated with prodromal symptoms as well as with first episode psychosis, or only correlated with the latter, is of little to no significance for the purposes of determining the appeal. The real problem for the appellant is the attempt to use a general statistical relationship to prove a diagnosis of, or to draw a conclusion concerning, an individual accused at the specific time at which he committed particular acts of violence. 3. Understandably, the correlation identified in the studies leads to a scientific hypothesis of causality. The research does not constitute evidence that in any individual case the acts of violence were caused by the symptoms of mental disorder. Moreover, in a trial for murder the matters that must be established on the balance of probabilities to engage either the partial defence of substantial impairment or the complete defence of mental illness are much more exacting than mere causation in a general sense. Dr Nielssen does not purport to draw from the research any generally applicable mechanism of causation that is implied by the statistical correlation. He does not suggest that the research has identified that either prodromal symptoms or first episode psychosis will in all cases impair to a substantial degree any particular faculty, or that those symptoms will always deprive the affected person of an understanding of the nature, quality and/or wrongfulness of his or her violent acts. The research provides no cogent basis, even as a contributing factor, for Dr Nielssen's revised opinion that, in the specific case of the appellant, his capacities were substantially impaired on 1 February 2003. 4. In summary, the matters to which Dr Nielssen attributes his September 2007 opinion are either not post-trial developments (items (i) and (ii)) or they provide no relevant foundation for the new opinion (items (iii) and (iv)). The opinion in the report that the appellant's capacities were substantially impaired is new evidence rather than fresh and it lacks cogency, being a departure from the opinion expressed at trial without coherent justification. On its own the report would not justify a conclusion that there has been any miscarriage of justice in the jury's verdicts. Dr Nielssen's Report of 29 December 2014 1. In a further report for the appellant's solicitors of 29 December 2014, Dr Nielssen concluded that by that date the appellant's schizophrenia was in remission, although he continued to receive relatively low dose injections of antipsychotic medication. In this report, Dr Nielssen again referred to the research studies that he cited in September 2007. As background to his expression of opinion on the significance of the research, Dr Nielssen gave the following retrospective on the trial: "The effect of a severe and disabling form of mental illness was raised in [the appellant's] trial. From the information that was available, [the appellant's] offence was not thought to be directly related to symptoms of mental illness in a way that might have left open the defence of mental illness. Instead, the psychiatric experts agreed that he had the defence of substantial impairment by abnormality of mind available to him because of the effect of emerging mental illness on his perception of events in his capacity to control his actions. However, the court [scil, the jury] decided otherwise, and he was found guilty of the murders. Moreover, the effect of mental illness was not held to be a mitigating factor that might reduce the sentence imposed for the offences." 1. As can be seen in the passages of trial evidence quoted earlier, this is not an accurate summary. Dr Westmore, disagreeing with Dr Nielssen, did consider that the defence of mental illness was open. Dr Westmore was not asked, in terms, about the partial defence of substantial impairment. Dr Nielssen did not accept that the appellant "had the defence of substantial impairment by abnormality of mind available to him because of the effect of emerging mental illness on his perception of events in his capacity to control his actions". No such opinion was expressed orally by him to the jury. 2. In his report of December 2014, Dr Nielssen made the following observations on the research: "The reasons for the greatly increased rate of irrational violence during the first episode of psychosis include the absence of the experience of remission from symptoms after treatment, having never received a medical explanation for frightening symptoms and because people around the affected person do not realise that the person has become unwell. Another factor appears to be the gross disturbance of emotional regulation and the capacity for logical thinking associated with emerging psychosis, which greatly increases the propensity for irrational and disproportionate violence. […] In my opinion, the scientific research about the effects of the prodromal phase of mental illness and the first episode of psychosis on moral reasoning and behaviour, which was not available at the time of [the appellant's] trial and was only emerging at the time of his [2006] appeal, amounts to new evidence that is relevant to his offending behaviour and warrants a review of the outcome of his case." (Footnotes omitted) 1. Those observations are affected by the considerations stated at [280] above, concerning Dr Nielssen's September 2007 report. In December 2014 Dr Nielssen did not reiterate his 2007 opinion that the appellant's capacities were substantially impaired. For reasons already given, the research is not an available or cogent foundation for any such expert psychiatric opinion concerning an individual accused. Nor would the research be independently admissible. A body of research giving rise to general scientific conclusions about a class of mentally disordered offenders and the statistical correlation between their offending and first episode psychotic symptoms (or prodromal symptoms, if the research goes that far), could not be received as evidence to prove causation with respect to the appellant, let alone to establish the legal criteria of s 23A or the mental illness defence. Dr Large's Report of 10 September 2009 1. In his report of 10 September 2009, which was also put before the Court on the appeal as fresh evidence, Dr Large refers to the same research papers as cited by Dr Nielssen. The sub‑headings in Dr Large's report, and the terms in which he summarises the research, are significant having regard to the distinction he draws between the prodrome of schizophrenia and first episode psychosis. Unlike Dr Nielssen, Dr Large understands the research as identifying a connection between violent conduct and first episode psychosis, but not prodromal symptoms: "New evidence about [t]he risk of homicide in first episode psychosis Three papers have been published indicating a greatly increased rate of homicide in first-episode psychosis, when compared to previously treated psychosis … . A fourth paper provided epidemiological evidence to support the contention antipsychotic treatment reduces homicide by the severely mentally ill and therefore supports the finding that a lack of treatment for severe mental illness is a risk factor for homicide … . The finding that untreated schizophrenia is associated with the highest risk of homicide has recently been confirmed by an independent research group from Denmark … . Hence, five papers have been published since 2007 indicating a greatly increased risk of homicide among people with untreated schizophrenia. This was unknown before this date." 1. Dr Large concludes from the above and from other post-trial research that "there have been three advances in the scientific literature with respect to homicide by the mentally ill after 2007", as follows: "New evidence about the factors associated with homicide in schizophrenia […] First it has been more firmly established by meta-analysis that patients with schizophrenia comprise approximately 6.5% of homicide offenders and that the risk of homicide by a person with schizophrenia is in the order of 20 times that of a person without the disorder. Second prior to 2007 there was no scientific evidence that the early and undiagnosed phase of schizophrenia carried any particular risk for homicide. In fact it was generally believed that patients who were known to suffer from schizophrenia and who had been unwell for some time carried the highest risk. [… ] It has now been established in multiple publications … that there is a greatly increased risk of homicide during first episode schizophrenia and that the order of magnitude of this increased risk is between 10 and 20 times when compared to later in the illness. This is in addition to the increased risk at any time and the risk of homicide in first episode schizophrenia is cumulative. The rate of homicide in first episode schizophrenia is 1 in 220 in NSW … and 1 in 630 worldwide … . Third, it is now clear that the sociological factors that determine rates of homicide by the mentally ill (and therefore the majority of such homicides) are not very different to [those] of other homicides and it is probable that the reason patients with schizophrenia are more likely to commit homicide is not solely because of the overt symptoms of psychosis such as delusional thinking, but because they are more vulnerable to social and other factors that determine the overall homicide rate." 1. Those advances in the scientific literature are concerned with first episode schizophrenia, not with any relationship between prodromal symptoms and homicide. Dr Large considers the latter topic under a separate heading towards the end of his report, as follows: "Homicide and the prodrome of schizophrenia There has been less progress in developing an understanding of the relationship between the prodrome of schizophrenia and violence, and less is known about the risk of homicide in the prodrome of psychosis. However, it can be difficult to determine when the prodrome of schizophrenia ends and when the first episode of schizophrenia begins. Schizophrenia is not an illness that emerges suddenly, without warning. Schizophrenia is the result of neurological processes occurring over years rather than months, weeks or days. Prominent in the process of schizophrenia is the presence of cognitive impairments that are believed to be one of the earliest, most important and enduring manifestations of the illness. These cognitive deficits affect memory, attention and decision making functions, and predate more obvious symptoms of psychosis such as hallucinations and delusions. Cognitive deficits would be expected to have some impact on moral reasoning and decision‑making although they might not deprive a person of knowledge of right and wrong in the same way as a bizarre delusional belief or the grossly disorganised thinking of acute psychosis. However, these deficits in cognition and thinking contribute to the increased vulnerability to social factors that are associated with the variation in the risk of homicide by people with schizophrenia." (Emphasis added) 1. The highlighted portion is the only expression of scientific opinion about whether a person's capacities may be substantially impaired (for the purposes of the partial defence) or whether the person may lack understanding of the nature, quality or wrongness of his or her acts (for the purposes of the mental illness defence). The report, including the highlighted passage, would not be admissible in proof of any of the requirements of either defence with respect to the appellant specifically, for the reasons already given in relation to Dr Nielssen's reports of September 2007 and December 2014. Neither the symptoms suffered by the appellant on 1 February 2003, nor the effects of those symptoms upon his actions and understandings can be proved by evidence of a statistical correlation between acts of violence and mental disorders amongst a large sample of perpetrators. Combined Effect of Additional Evidence – Partial Defence 1. In this appeal, the combined force of all the putative fresh evidence relied on by the appellant is no greater than the force of the individual items. The research papers constitute material that was not available at the trial because the respective studies had not yet been carried out or reported upon. However, while those papers and any accompanying expert evidence explaining them constitute fresh evidence, the evidence does not support the partial defence of substantial impairment. For the same reason, the papers cannot support a finding of miscarriage of justice by reason that the results of this research were not available for tender in 2005. The changed opinions of Dr Nielssen are new evidence rather than fresh. Taken together, they are not sufficiently cogent to persuade the Court that the appellant has been wrongly convicted, or even that he has been denied a fair chance of acquittal as a result of Dr Nielssen not having expressed those post-trial opinions on substantial impairment to the jury. Combined Effect of Additional Evidence – Mental Illness Defence 1. Just as the post-trial research evidence is not capable of proving that the appellant suffered from any substantial impairment of his capacities, it is also not capable of proving that his mental disorder had the still more deleterious effect that would have to be proved on the balance of probabilities to sustain the mental health defence. As for Dr Nielssen's post-trial opinions, they lack cogency to prove that the appellant lacked understanding of the nature, quality or wrongfulness of his acts, just as they lack cogency to prove substantial impairment of capacities. Indeed, the post-trial opinions of Dr Nielssen only purport to substantiate the availability of the partial defence, not the mental health defence. Dr Nielssen gave this evidence on the appeal: "A. […] I certainly now believe that he was significantly compromised in his ability to judge right from wrong, to exercise proper self-control and in his perception of events. Q. So what do you say now, you think that this new or fresh evidence that you're putting forward impacts on the mental illness defence as well, are you? A. No, I'm - I still don't believe he quite reached that threshold given all the circumstances but I do believe that he was significantly mentally ill and it affected those domains." 1. It follows from our earlier analyses and discussions that the additional evidence does not permit this Court to hold that there is any basis for the defence of mental illness to be established, nor that the additional evidence is new. Much less can it be concluded that there has been any miscarriage of justice in this respect. 2. These conclusions mean that there is no need for the Court to consider the evidence taken on the appeal from Dr Greenberg, a specialist forensic psychiatrist. Dr Greenberg was not an expert called at the trial. He was retained by the Crown for the purposes of the appeal. The conclusions we have earlier recorded about the nature and quality of the evidence of Dr Nielssen took no account of the evidence of Dr Greenberg. Accordingly, it is unnecessary for the Court to consider the disputed issue about the admissibility of Dr Greenberg's evidence or the way the Court is entitled to use it, if it is admitted. 3. We have not been persuaded that there is any sound basis to uphold Ground 1 of the appeal grounds. It follows that the three convictions of murder should stand and not be set aside. Ground 2 – The Sentence Ground 1. In his report of 10 September 2009, Dr Large records the results of a number of specific studies and papers. The details of his report have been earlier set out at [285]. Relevantly for the purpose of sentence, he notes these conclusions: 1. in these studies of which Dr Nielssen and Dr Large were co‑authors, in NSW, there is a greatly increased rate of homicide in first-episode psychosis when compared to the rate in previously treated psychosis. The difference is 1 in 220 patients per year for first episode psychosis, namely those who have not previously been treated, compared to 1 in 10,000 patients for those who have had effective treatment; 2. a fourth paper of Dr Large's in 2008 established epidemiologically that effective treatment with antipsychotic medication reduced the rate of homicide in mentally ill people. The study concluded that an earlier 1999 study to the opposite effect was erroneous; and 3. a study in Denmark found, in 2009, that untreated schizophrenia was associated with the highest rate of homicide. 1. These descriptions of, and conclusions about these studies, which were unknown at the time of the sentencing (including the CCA judgment) were not challenged by the Crown in cross‑examination before us. 2. In expressing his conclusions in the SJ about the reasons for the imposition of three life sentences, Barr J reached some factual conclusions about the appellant's mental state. He said: "68 There were noticeable changes in the offender's behaviour during the weeks immediately before the murders … 69 These facts, which do not depend upon any history given by the offender, show that changes were probably taking place in his perception of events. The evidence supports the conclusion that the offender was developing an unreasonable belief that others might be watching him. 70 I think that what the offender's wife was witnessing was the prodromal phase of a psychotic illness. I think that the illness continued to develop after the murders. …" 1. Justice Barr, in considering the imposition of life sentences, identified these features as being the relevant conclusions: "76 The offences were of great heinousness. … … 81 It is unnecessary to come to any conclusion about the future course of the offender's illness or about whether he will in the future constitute a danger to others. In any case, the evidence would not permit any confident finding about such matters. … 83 I am satisfied that the level of the offender's culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence for each offence." (Emphasis added) 1. We note that the conclusion expressed in [83] reflects the terms used in s 61(1) of the Crimes (Sentencing Procedure) Act 1999. 2. The parts of the SJ which have been the subject of added emphasis show that the question of the future course of the appellant's mental illness, and his future danger to the community, necessitating community protection being considered as part of the sentencing process, were each considered and taken into account as being relevant by Barr J. 3. The sentences of Barr J and the facts found by him were upheld by the Court of Criminal Appeal. In the CCA judgment, Hislop J (with whom Spigelman CJ and Sully J agreed) noted, that in some cases the existence of a mental illness, even though not a cause of the offences, may be a mitigating factor on sentence. However, his Honour concluded that the criminality inherent in the homicides was sufficient to justify the life sentences which were imposed: see [57] and [58] of the CCA judgment. 4. The Court of Criminal Appeal did not permit the appellant to adduce evidence of the opinion of Dr Nielssen contained in his report of 29 October 2006, on the appeal to it. 5. Relevantly for this ground of the appeal, Dr Nielssen in that report said: "With regards future dangerousness … [Mr Adanguidi's] risk of future offences could be reduced by consistent treatment for what is now a chronic mental illness with antipsychotic medication …" 1. Justice Hislop rejected the attempts to tender the report of Dr Nielssen saying that his "… additional comments do not impact upon the question of the applicant's capacity at the time of the murders" at [64]. He also concluded that had that evidence been admitted, it would not have led to the imposition of any different sentence and so, in accordance with s 6(3) of the Criminal Appeal Act 1912, assuming error had been shown, no other less severe sentence was warranted in law. 2. However, the evidentiary position is not the same on this appeal. It cannot be doubted that the evidence of Dr Large set out at [290], setting out the results of the studies and papers, all of which post-dated the imposition of the three life sentences, falls into the category of "fresh evidence". It was not evidence which was in existence at the relevant time, nor was it discoverable by reasonable diligence on the part of the appellant or his lawyers. 3. By application of the various legal tests outlined earlier to the sentencing process undertaken by a Judge (rather than a jury considering its verdict), it seems that the question to be asked when dealing with Ground 2 is, where there is fresh evidence which is credible or plausible, as the evidence here is, whether there is a significant possibility that the sentencing Judge, acting reasonably, would have imposed a different sentence for each offence, which was less than the three life sentences which were imposed. 4. Although the SJ has been referred to at length earlier, it is necessary to look at the proceedings on sentence to ensure that the whole context leading to the imposition of the life sentences can be understood. 5. In its written submissions to the sentencing Judge, in addition to addressing the question of whether a mental illness existed which may have impacted upon the moral culpability of the appellant, the Crown submitted as follows: "29 This is a case in which the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty. (See Garforth, Leonard [1998] NSWCCA 7, Rose [1999] NSWCCA 327, Fernando (1997) 95 A Crim R 5533 and Harris [2000] NSWCCA 469)." 1. Counsel for the appellant tendered a number of expert reports on sentence. 2. The first was a report of Dr Westmore of 2 May 2005. This report post‑dated the conviction. Dr Westmore said: "Thank you for your facsimile of 29 April 2005 requesting an opinion regarding Mr Adanguidi's future dangerousness. If Mr Adanguidi committed the offences as a result of a mental illness, and that is the view I hold, then his risks of reoffending will be significantly reduced if his mental illness can be treated to the point where it goes into remission. At that time, theoretically, his risks of reoffending should probably be no greater than the general population. If, however, he suffers a relapse of his mental illness, then his risks of reoffending may become high. If Mr Adanguidi was not mentally ill when he committed the offending behaviour, then I would consider him to be a potential ongoing risk to the community." 1. As well, the appellant tendered the report of Dr Tony Mastroianni of 16 May 2005. That somewhat lengthy report included the following opinions: "Mr. Adanguidi is a 27 year old, married father of two children who is currently in the Long Bay Prison Complex. He was recently found Guilty on three counts of Murder. It is my opinion, within reasonable medical certainty from the information available to me, that Mr. Adanguidi suffers from a chronic mental illness. His provisional diagnosis is Chronic Schizophrenia, although a Schizoaffective Disorder cannot be ruled out at this stage. A Schizoaffective Disorder is a schizophrenia-like illness with prominent mood symptoms. … Mr. Adanguidi's prognosis is guarded at this stage. Positive prognostic factors include his compliance with treatment, his at least partial response to treatment on medication, and his supportive family. Negative prognostic features include the persistence of some core psychotic features despite high dose medication, the ongoing stressors of Court and life in the main prison, and his potential for dangerousness based on his past behaviour (i.e. the Index Offences) and descriptions of unprovoked psychotic thoughts to harm others in prison. Whatever the Court decides, it is imperative that Mr. Adanguidi continues to receive ongoing antipsychotic medications to closely treat his mental illness, both to reduce his subjective distress and to reduce his risk of recidivism. It is as yet unclear whether his current medications will suffice in the long-term to bring his psychotic mental illness into remission or whether further hospitalisation and/or alternative medications might be needed in the future …" (Emphasis in original) 1. Dr Mastroianni is a specialist psychiatrist who, at the time he gave his report, was a consultant psychiatrist to the NSW Corrective Health, and was the appellant's treating psychiatrist. He conducted a general adult and forensic psychiatry practice in Sydney. 2. Counsel for the appellant, in her submissions on sentence, opposed the imposition of life sentences for the homicides of which the appellant had been convicted. In those submissions she invited the Court to accept the opinions as to the appellant's prognosis, including the positive prognostic factors referred to in the expert report of Dr Mastroianni. Counsel submitted that the appellant's risks of reoffending would be significantly reduced if his mental illness could be treated to the point where it went into remission. She submitted that the Court would accept Dr Westmore's opinion that, if that occurred, the risk of the appellant's reoffending would be "… no greater than the general population". 3. On sentence, Barr J needed to address the competing submissions by reference to these prominent issues, in addition to the usual sentencing considerations: 1. was the appellant at the time of the homicide suffering from a mental illness, if so, what was it and did it have any causal connection to those homicides or other relevance to his culpability; 2. how were the purposes of sentencing, namely adequate punishment, general and specific deterrence, community protection, rehabilitation, accountability, denunciation and recognition of the harm done to the community, to be balanced; 3. at the time of sentencing, was the appellant then suffering from a mental illness? If so, how would that impact upon the need for specific deterrence, rehabilitation and the protection of the community; and 4. in light of the Crown's submissions, was this a case in which the level of culpability in the commission of the offences was so extreme that the community interest in retribution, punishment, community protection and deterrence would only be met through the imposition of a life sentence. 1. Justice Barr resolved the first issue in [72] of the SJ by concluding that the evidence provided no recognisable connection "… causal or otherwise …" between the appellant's state of mind and his commission of the acts causing the three deaths. For reasons which we have earlier explained, there is nothing in the evidence on this appeal which could suggest that this conclusion was wrong having regard to any additional evidence. 2. The third issue, namely the mental illness, if any, suffered by the appellant at the time of sentencing, was a matter upon which Barr J could not reach any definite conclusion. At [81] of the SJ, he said that the evidence did not enable him to make any "confident findings" about the future course of the appellant's illness or about whether the appellant would in the future constitute a danger to others. At [46] of the SJ, Barr J noted the provisional diagnosis of chronic schizophrenia which had been reached by Dr Mastroianni, which is referred to at [310] above. Barr J also noted the uncertainty in Dr Mastroianni's opinion about the appellant's future course. 3. Accordingly, on the third issue, his Honour could not proceed to draw any conclusions relevant to sentencing about the appellant's future dangerousness, his rehabilitation and the need for community protection. 4. His Honour gave careful consideration to whether he should impose life sentences, as identified in the fourth issue above. The submissions of the Crown drew his attention to a number of authorities dealing with the imposition of life sentences. A number may be noticed. 5. In R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409, Wood CJ at CL (with whom Giles JA and James J agreed) said at [102]-[103]: "102 The level of heinousness involved in the three killings, and the future dangerousness of the respondent, it was put [by the Crown], meant that the subjective circumstances were of so little weight that they should have been entirely discounted, either as irrelevant or of no weight. 103 So far as this submission depended upon the proposition that, in some cases, the offence or offences for which an offender stands for sentence are so heinous, that the subjective circumstances should be disregarded either wholly or substantially, then it was, in my view, consistent with principle. In particular, there is support for this view in the decisions of … Leonard … Rose … and … Fernando." 1. Justice Wood concluded in Harris at [105], that that matter was one of such heinousness "… with the consequence that the subjective circumstances could not displace the need for life sentences". 2. In R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557, Wood CJ at CL (with the agreement of Tobias JA and Hidden J) said at [52]: "52 In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. … [T]he various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime." 1. As Barr J said in the SJ, it was unnecessary to come to any conclusion about the appellant's future. That was because, in accordance with authority, the offences were of great heinousness. They fell within the worst category of case, and the appellant's criminality was so grave "… as to make it impossible for the Court …" to allow any reduction in sentence. In those circumstances, his Honour did not have to consider and weigh up, even if the evidence permitted him so to do, the subjective case of the appellant. 2. The CCA judgment confirmed the correctness of this approach, Hislop J saying: "57 His Honour accepted the applicant had a psychotic condition subsequent to the murders. In some cases the existence of a mental disability or disorder, even though not contributory to the offence, may be a mitigating factor on sentence – see R v Engert (1995) 84 A Crim R 67. 58 However the criminality inherent in these offences, it having been found the offences were not the result of or contributed to by a mental or psychiatric condition, is of such a degree as not to permit of any mitigation of penalty on this basis – Engert at 68.7, Harris at [103]-[105]." 1. It can be seen from the SJ and CCA judgment that this matter, and the sentences imposed, fell into a very small cohort of sentences where such was the heinousness of the conduct and the inherent criminality that the evidence with respect to the subjective factors of the appellant was simply irrelevant and properly to be disregarded, or given very little weight, in accordance with the two-step approach to cases involving the application of s 61(1) of the Crimes (Sentencing Procedure) Act. 2. It follows from this analysis that as the fresh evidence was only directed at those subjective factors, regardless of its quality, it could have had no influence, assuming it existed at the time of sentence, on the sentences pronounced by Barr J which were upheld in the Court of Criminal Appeal. 3. The question posed in this appeal, set out at [305], with respect to this ground, must be answered in the negative. That is to say that, notwithstanding the existence of fresh evidence which is credible or plausible, there is no possibility (let alone any significant possibility) that the sentencing Judge, acting reasonably, would have imposed a different and lesser sentence for each of the offences. 4. For the avoidance of doubt, we have also concluded that the fresh evidence if given in the context of the sentencing proceedings would not have led to any doubt in the sentencing Judge's mind as to the appropriateness of the sentences imposed. Conclusion 1. We have not been persuaded by the appellant that we should quash his three convictions, nor that the three life sentences which were imposed ought also be quashed and the proceedings remitted for either retrial or else resentence. 2. We are of the view that the appeal should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2024