New South Wales Court of Criminal Appeal CITATION : R v Maxwell [2001] NSWCCA 362 FILE NUMBER(S) : CCA 60206/2000 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 14 September 2001 PARTIES : Regina - Respondent Brian Maxwell - Applicant/Appellant JUDGMENT OF : Simpson J at 1; McClellan J at 59; Ireland AJ at 60 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70105/92 LOWER COURT JUDICIAL Grove J OFFICER : COUNSEL : B Maxwell - Applicant/Appellant - in person P G Berman SC - Crown /Respondent SOLICITORS : B Maxwell - Applicant/Appellant - in person S E O'Connor - Crown/Respondent LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act R v Maxwell (1994) 74 A Crim R 330 Maxwell v R (1996) 184 CLR 501 CASES CITED: R v Maxwell unreported 12 September 1996 R v BMW unreported 14 March 1997 R v Maxwell unreported NSWCCA 23 December 1998 DECISION : 1 Appellant granted whatever extension of time is necessary for the institution of the appeal, and whatever leave is necessary to reinstate the appeal against conviction previously abandoned; 2 appeal against conviction dismissed; 3 appellant be granted leave to appeal against the sentence imposed; 4 appeal against sentence be dismissed. IN THE COURT OF CRIMINAL APPEAL 60206/00 SIMPSON J McLELLAN J IRELAND AJ 14 September 2001 REGINA v Brian William MAXWELL Judgment SIMPSON J : 1 In this matter Brian William Maxwell, who represents himself, appeals against his conviction for murder, and applies for leave to appeal against the sentence subsequently imposed. The convenient course is to set out something of the very unusual course this long protracted matter has taken, before considering the numerous grounds of appeal the appellant has advanced. The history which follows is non controversial and is drawn from a number of sources, including reported and unreported decisions of the Supreme Court, this Court, and the High Court. 2 On 24 August 1992 the appellant's wife, Marilyn Maxwell, died from a gunshot wound. The appellant was immediately arrested and charged with her murder. The trial was fixed to commence in the Supreme Court on 25 October 1993 before McInerney J. On that date, when indicted for murder, the appellant entered a plea of not guilty to murder, but guilty to manslaughter. Pursuant to (then) s 394A of the Crimes Act 1900, the Crown accepted the plea of guilty in full satisfaction of the indictment. Sentencing proceedings ensued, and McInerney J heard evidence, including psychiatric evidence. Having heard that evidence, his Honour purported to reject the appellant's plea of guilty. McInerney J having certified, pursuant to s 5F of the Criminal Appeal Act 1912, that the matter was a proper one for determination on appeal, the appellant appealed to this court, which held; (i) that the Crown could withdraw acceptance of a plea of guilty after it had been accepted; and (ii) that, when a plea of guilty has been accepted by the Crown in full satisfaction of an indictment, the judge, nevertheless, retained power to reject the plea. The court accordingly dismissed the appellant's appeal: R v Maxwell (1994) 74 A Crim R 330. 3 The appellant was granted special leave to appeal to the High Court. On 15 March 1996 that Court upheld the ruling that, even after it has accepted a plea in full satisfaction of the indictment, the Crown may (with the leave of the Court, and before conviction) withdraw that acceptance; but the High Court also held that a judge has no power to review the election of the Crown to accept a plea of guilty to a lesser offence than that originally charged, nor to intervene and reject the plea: Maxwell v R (1996) 184 CLR 501. 4 To that point, the Crown had made no application for leave to withdraw its acceptance of the appellant's plea of guilty in full discharge of the murder indictment. The High Court remitted the matter to McInerney J to proceed in accordance with its reasons for judgment. 5 The Crown applied for leave to withdraw its acceptance of the plea. On 12 September 1996, after a contested hearing, Adams AJ (as his Honour then was) granted leave: R v Maxwell, unreported, 12 September 1996. The appellant sought leave to appeal to this Court against that decision. On 14 March 1997 this Court (Gleeson CJ, Hunt CJ at CL and Hidden J) refused leave: R v BWM, unreported, 14 March 1997. 6 The trial (for murder) was listed before Bruce J and commenced on 19 May 1997. With the consent of the Crown the appellant elected, pursuant to s 32 of the Criminal Procedure Act 1986, to be tried by judge alone. The appellant again pleaded not guilty to murder but guilty of manslaughter. On this occasion, the Crown declined to accept the plea in full satisfaction of the indictment and the trial proceeded. Only two issues were litigated: firstly, whether the Crown had established the specific intent necessary to support the charge of murder; secondly, whether, if intent had been proven, the appellant had established diminished responsibility (as the partial defence provided for by s 23A of the Crimes Act 1900 was then known). 7 Evidence and submissions concluded on 3 June 1997. Bruce J reserved his decision. On 2 April 1998 his Honour delivered judgment, finding both issues in favour of the Crown. He therefore convicted the appellant of murder. On 12 June 1998 he sentenced the appellant to penal servitude for sixteen years comprising a minimum term of ten years and an additional term of six years. 8 The appellant appealed to this Court against the conviction. Pursuant to s 5D of the Criminal Appeal Act the Crown appealed against the sentence, asserting that it was manifestly inadequate. On 23 December 1998 this Court allowed the appeal, set aside the conviction and ordered a new trial: R v Maxwell, NSW CCA, 23 December 1998, unreported. 9 The second trial commenced before Grove J on 5 October 1999. Evidence and submissions concluded on 21 October. The issues in dispute were identical to those that had been litigated before Bruce J, that is, intention and diminished responsibility. On 5 November 1999 Grove J rejected the appellant's contention in respect of both matters and convicted him of murder. On 10 March 2000 he proceeded to sentence, imposing a sentence of identical length, and in identical terms, to that imposed by Bruce J. 10 On 12 April 2000, the appellant filed a notice of appeal against the conviction and an application for leave to appeal against the sentence. The time for appealing having expired, he sought an extension of time in which to do so. 11 On 24 August 2000 the appellant advised the registrar of the Court of Criminal Appeal that he abandoned his appeal against conviction, but wished to pursue the application for leave to appeal against the severity of the sentence. The application was listed for hearing on 22 November 2000. On that day the appellant appeared unrepresented. The Court embarked upon the hearing of the application, but it became apparent that the appellant was without certain relevant material, including a copy of Grove J's remarks on sentence. The application was therefore adjourned and a fresh hearing was fixed for 13 December 2000. 12 On 7 December 2000 the appellant wrote to the registrar, requesting a further adjournment. Specifically, he indicated that he wished to reinstate his previously abandoned appeal against conviction. The hearing of the sentence appeal application was accordingly vacated. 13 It is pertinent here to note that, on initially being charged, the appellant was refused bail and held in custody. On 24 December 1992 he was released on conditional bail. The conditions included a residential condition, daily reporting, and a substantial cash surety. By subsequent variation to the conditions the appellant was required to accept medical treatment, and, perhaps significantly, not to attempt to contact his son (born March 1989). 14 The appellant remained at liberty on bail until 25 October 1993, when he was first indicted. Having at all times signified an acceptance of his guilt of manslaughter, he has remained in custody since that date. It seems that he has made no application for bail. He has told this Court that, as an unsentenced prisoner (until 10 March 2000) he was subject to what he asserts are the more onerous conditions of remand incarceration, and has been deprived of access to various rehabilitative programs or low security classifications. Given the extraordinary history I have recounted, and the consequent extraordinary time he has spent in custody as a remand prisoner, this is a matter of some significance. FACTS 15 The relevant facts on which the Crown case was based may be stated briefly. The appellant and his wife were married in 1985 and their son was born in March 1989. The marriage failed. In August 1991 Mrs Maxwell permanently left the matrimonial home taking the child with her. There followed a continuing dispute about the appellant's entitlement to access to the child. The child was enrolled in a day care centre at Blacktown. The appellant opposed his enrolment. An issue arose concerning a medical condition with which the child had been diagnosed. 16 On 24 August 1992 the appellant travelled to the day care centre, in a vehicle he had only recently purchased, and which would not have been familiar to his wife. He was wearing a yellow raincoat with a hood over his head and carrying a towel. Inside the towel was a sawn off rifle. He approached a white Sigma which was his wife's car. She emerged from the car, shouting at the appellant, who occupied the driver's seat of the car and drove off. He drove the Sigma into a gutter, hit a sign post and alighted from the vehicle. At this time there was blood on his raincoat. A woman who was nearby heard him say "I had to kill her. I had to kill her. I haven't seen my son in twelve months". 17 Mrs Maxwell was lying across the front seat of the vehicle, covered in blood. The woman nearby asked the appellant why he had done it and he replied: "I had to do it. It was the only way. I haven't seen my son in twelve months. I had to kill her." Subsequently, he said: "I love her and I love my son. She has to be dead. It's the only way." (The assertion, which was repeated, that he had not seen his son for twelve months, was untrue.) 18 Police quickly arrived. The appellant was still at the scene. One of the police officers asked the appellant what had happened. He replied: "I shot her, it was just crazy, I haven't seen my son in ages, I wanted to see my son but she wouldn't let me, you don't understand what it's like." 19 When he was searched the appellant was found to have in his possession a pair of black pantihose. When asked to explain this possession he said that he was going to put it over his head "like in the movies" but had not done so. 20 The appellant made other remarks which were incriminatory. He was interviewed, and the interview electronically recorded. Again, he gave answers that were incriminatory. Inter alia, he said that he had test fired the gun in the early hours of the morning to ascertain how noisy it was; he said he had dug a hole under his house, in which he intended to put a safe, but that he had kept the gun there. There was also evidence that the appellant had secured the rifle in such a way as to ensure that, when fired, it did not eject a cartridge. 21 Much of the evidence that was put before Grove J was put before him in the form of statements or transcripts from the previous trial before Bruce J. Again, the appellant elected for trial by judge alone. He had made an unsworn statement in the earlier trial, and the transcript of this was tendered in the trial before Grove J. Evidence on his behalf was given by a general practitioner and three psychiatrists. In reply the Crown produced its own psychiatric evidence. All psychiatric evidence went to the issues relevant to the s 23A defence. The judgment 22 Grove J delivered judgment on 5 November 1999. He briefly reviewed the history outlined above, and confirmed earlier advice to counsel that he believed that he had not had access to extraneous material and had not read the judgment of Bruce J. He then, as required by s 32 of the Criminal Procedure Act, directed himself as to the legal principles to be applied, and following this he reviewed the evidence before him. He noted that the issues were whether the appellant's act that caused the death of his wife - that is, presenting the weapon in the circumstances in which he did - was deliberate, and his intention in doing so. He gave reasons for rejecting the appellant's claim that the firing of the gun was accidental, brought about by Mrs Maxwell's response to his own conduct. Having made relevant findings of fact about certain matters that had been argued before him, he resolved the issue of intent against the appellant. He therefore declared himself satisfied beyond reasonable doubt that at the time of the killing the appellant intended to cause the death of his wife. His Honour was therefore satisfied that, subject to the partial defence of diminished responsibility, the prosecution had discharged the onus of proving the necessary ingredients to support a conviction for murder. 23 His Honour then turned to the issues raised by the s 23A defence, and again, in compliance with s 32 of the Criminal Procedure Act, stated the legal principles relevant to the determination of those issues. Again, he reviewed the evidence, and made necessary and relevant findings of fact. As a consequence of those findings of fact, he held that the appellant had failed to discharge the onus of proving that the appellant was at the time suffering from a relevant abnormality of mind. He further held that, even if the appellant did suffer such an abnormality of mind, it was not substantial as required for the defence to be established. 24 The consequence was that he convicted the appellant of murder. Sentence 25 On 10 March 2000 Grove proceeded to sentence the appellant. Counsel who then appeared for the appellant urged upon Grove J that, consistently with the practice that applies where a person, whose initial conviction has been set aside on appeal, but who is subsequently re-convicted, can reasonably expect that the sentence imposed following the second conviction will not be any lengthier than the sentence imposed following the first, the applicant should be re-sentenced as he had been sentenced by Bruce J. . With some obvious reluctance, Grove J acceded to that submission. He sentenced the appellant to penal servitude for sixteen years with a minimum term of ten years, dating from 25 October 1993. Naturally, this sentence recognised the unusually lengthy period the appellant had spent in custody prior to sentence. In doing so, his Honour referred to material tendered which supported the contention that, by reason of his status as a remand, unconvicted, prisoner (during most of that period), his period of incarceration had been more onerous than would otherwise have been the case. As to this, Grove J said: "Nevertheless, I do not regard the circumstances of custody as being shown to have been so unusually onerous as to require me to take into account any particularly weighty discount against otherwise assessed proper sentence." The appeal against conviction for murder 26 In support of his appeal against conviction, the appellant has presented the court with a document, consisting of eighty closely typed pages, which he entitled "my appeal points". Given his unrepresented status, it is a matter of little surprise that much of this material lacks close adherence to legal formulae. Because of the length of his argument, and the extent of the factual matters to which he has referred, it is simply not practicable to deal with each individual matter raised. I have closely examined the matters raised by the appellant. 27 Again unsurprisingly, the arguments in some respects are misconceived. For example, the appellant has at times referred to discrepancies between the reasoning or the findings of fact made by Bruce J and those made by Grove J in reaching the same conclusions. By way of example, the appellant suggests that the two judges came to different views about the proper characterisation of the appellant's motive for killing his wife. He asserts that Grove J described the motive as "anger" over the disputed access to his son, but that Bruce J described the motive as "revenge" but did not identify the basis for the revenge. 28 This is not the only respect in which the appellant refers to the trial conducted before Bruce J. Indeed, he has also made criticisms of the proceedings before McInerney J. All these matters can be disposed of by noting that the present appeal is an appeal against the conclusions of Grove J. The trial which took place before him superseded the trial before Bruce J, and the proceedings before McInerney J. Any discrepancies between the conclusions of the two trial judges are quite immaterial, as is anything that took place before McInerney J, other than as an aid to understanding the present situation. No question of the admissibility of any of the evidence before Bruce J (and, therefore, before Grove J,) arose. 29 Another matter raised by the appellant is a contention that, to sustain a conviction for murder, it is necessary for the Crown to establish "five points", which the appellant identifies as "motive, intent, opportunity, advantage and one other". This contention simply demonstrates a misunderstanding of the elements of the crime of murder. Motive, opportunity, and advantage may be, and indeed frequently are, factual matters of which the Crown adduces evidence, and which frequently go to proof of the crime. However, none of these is essential. That which is essential, the relevant intent, was the subject of specific discussion and analysis by Grove J, and resulted in a conclusion adverse to the appellant. 30 The appellant has also referred to the Crown's acceptance of his plea of guilty to manslaughter in 1993, but it is not clear to me how he seeks to use this as a challenge to the murder conviction. It may well be that the appellant has some sense of grievance that the Crown departed from the course it initially took, but all of that has been fully resolved in the litigious history of this matter. 31 In a number of respects, the appellant has attacked findings of fact made by Grove J. Grove J gave detailed reasons for all relevant findings of fact and each is supported by adequate evidentiary material. To the extent that the appellant's argument is based upon his Honour's fact finding, I would reject it. 32 In one part of his argument, the appellant asserts bias against Grove J. There is not the slightest reason to consider that the trial judge was in any way biased, and I would reject this contention. 33 The appellant claims to have been denied "due process" as a result of what he describes as "eight years of media attention". He annexed a copy of one newspaper clipping, concerning proceedings involving Bruce J after the appellant's conviction. Although the appellant has produced no evidence to support his claim of undue media coverage, it may be accepted that the circumstances in which he was granted a new trial, and the unusual history that preceded that event, were the occasion for some media interest. However, particularly in light of the fact that the trial was conducted without a jury, there is no reason to think that media publicity impinged upon the fairness of the trial. 34 A number of matters raised by the appellant concerned material Grove J had, or had not, read. It will be apparent, from the history outlined above, that many judgments have been delivered in which reference would inevitably have been made to relevant factual matters. Grove J expressly said that, while he had read some of those judgments, he excluded their factual underpinnings from his consideration. The appellant also asserted that Grove J had read only edited transcripts, but provided no evidence to support this serious allegation. It must be rejected. 35 On another issue, the appellant attacks the psychiatric evidence tendered on behalf of the Crown. The criticism appears to be that the psychiatrist, Dr Milton, who, according to the appellant, only became involved some years after Mrs Maxwell's death, was based upon "edited police interview tapes". Further, the appellant asserts that, in the hearing of the appeal against the decision of Bruce J, Spigelman CJ asked for the tapes and was told by the Crown Prosecutor that they were "so much edited as to be unusable". 36 On the hearing of the appeal the appellant tendered some extracts from the transcript of the appeal in this court. This was done in order to support his repeated assertion that the video and audio tapes of his interview with police had been edited in such a way as to give a misleading impression, thereby adversely influencing Dr Milton's assessment and diagnosis. The transcript shows that counsel who appeared for the prosecution on that appeal handed both video and audio tapes to the Court and said: "My understanding is, and it is hearsay, but my understanding is no, the video tape does not record all of the oral material. I watched it, and it does not record all of the material that is written in the written transcript. Now, the rest of the material must come from the tape. I do not understand the transcript to be inaccurate." 37 There is no passage in the transcript provided to this Court in which the Crown Prosecutor described the tapes as "so much edited as to be unusable". 38 The appellant, however, went further on the hearing of the appeal. He produced copies of a bundle of correspondence demonstrating that he had sought to obtain, from a variety of sources, what he described as "unrevised court audio tapes from my trial." This material seems also to suggest that he asserts that the transcript of the previous appeal was also inaccurate, and deliberately so. 39 No evidence was called from the court reporters who recorded the argument on the appeal. However, that part of the transcript which the appellant tendered is in the form familiar to judges of this Court. I see no reason to accept the contention that it has in some way been tampered with. 40 The appellant made similar allegations about the transcript of the proceedings before Bruce J, asserting that there were material omissions, these relating to questions asked by Bruce J of one witness. As far as I could make out what the appellant was putting, it was that, during the course of questioning, one witness, Ms Campbell, asserted that the statement from which she gave her evidence was not her own work, but was in words suggested by investigating police. A second witness, Mr Barry Bon, according to the appellant, made a similar assertion. 41 The appellant claimed that Bruce J asked Mr Bon: "This is your sworn statement and is it what happened or is it just what the police told you to say?" to which Mr Bon replied: "I wont say they told me what to say but they made sure only what they wanted went in." 42 Mr Bon gave evidence on the hearing of the appeal. When asked questions by the appellant, he said: "It was a long time ago and I can't remember the exact detail, but you are right in so far as, yes, I was at the court and I did appear. Justice Bruce did ask me some question directly. I was questioned by the police prosecutor and then Justice Bruce asked me some questions directly about the evidence, I guess. Does that help? I can't remember the exact question. It was - no, I can't remember the exact questions that were asked at the time. It was a while ago." 43 He said that Bruce J had asked him several questions concerning the way his statement had been prepared, and that his response was that the statement was written by the detective but he (the detective) put in it what he wanted to put in it and not exactly what Mr Bon was saying to him 44 In cross-examination by the Crown in this Court, passages from the transcript before Bruce J were read to Mr Bon. He agreed that these represented the incident of which he had given evidence. The passage was: "Yes, I wasn't entirely happy with the way that statement was taken. I don't like to say Detective Panich was putting words in my mouth because he wasn't, but he was very careful about the way it went into the computer." 45 It seems Mr Bon was in error in recalling that it was Bruce J who asked these questions, and that it was in fact the Crown Prosecutor at the trial. 46 The appellant maintained that an exchange involving a certain amount of hostility took place between Bruce J and Mr Bon, the hostility not being directed at Mr Bon, but indirectly at the police who had, allegedly, formulated the statement. However, I am satisfied that he is in error in this recollection, and that the transcript as put to Mr Bon correctly represents what took place. 47 In any event, it is difficult to see where this takes the appellant. As I have already observed, the proceedings before Bruce J, are relevant only in so far as the transcripts of those proceedings provided the foundation for the determination by Grove J. The appellant was represented at both trials by the same senior counsel, and, notwithstanding the appellant's strong criticism of that counsel, it was open to him, had he seen fit to do so, to have cross-examined any of the Crown witnesses, and to have put before Grove J any relevant material he considered appropriate. 48 There is no substance in this complaint by the appellant. 49 Possibly allied to that complaint is an assertion by the appellant of misconduct on the part of the solicitor who instructed the Crown Prosector at the trial before Bruce J, and, so far as I can tell, the trial before Grove J. The appellant has repeatedly referred to what he describes as a "full confession" made in writing by this solicitor. So far as I can tell from the appellant's written argument, he asserts that this "full confession" was made in the proceedings before Adams AJ, the application by the Crown for leave to withdraw its acceptance of the plea of guilty to manslaughter. In any event, the solicitor swore an affidavit, stating that she had never made "a full confession" as to any aspect of the trial, and had no idea of what the appellant was referring to. The appellant was, during the course of the appeal, given an opportunity to cross-examine the solicitor but he declined to do so. In my opinion this claim, or assertion, by the appellant, goes nowhere. 50 One more matter raised by the appellant should be mentioned. He asserts that Grove J "was too restrictive on definition of my mental state". However, the argument he produced in support of that assertion goes back to his complaint of the Crown's conduct in changing its mind about the acceptance of his plea. The appellant goes on to assert, in this respect, that Grove J was biased against him, and that his intention was to "fix up this sloppy work for the Crown". I have already stated that I see no evidence of bias on the part of Grove J, and there is nothing else in the appellant's material that points to any error on the part of the trial judge in the construction of the matters in issue in the determination of a defence of diminished responsibility. Having regard to the fact that the appellant is unrepresented, however, I have re-read those passages in the judgment in which his Honour deals with that question. I detect no error. 51 The appellant has also complained that the verdict of guilty of murder is "unsafe and unsatisfactory". However, the arguments he has advanced in support of this contention are re-statements of grounds, or factual matters, individually raised. There is no substance in any of the arguments individually, and no substance in them taken collectively. 52 I would dismiss the appeal against conviction for murder. Application for leave to appeal against sentence 53 It is pertinent here to observe that, as Grove J apparently considered, the sentence imposed by Bruce J was, in all the circumstances, a very lenient one. However, for the reasons to which I have already adverted, Grove J decided to adhere to the convention in re-sentencing following a second conviction after a successful appeal and reimposed the sentence imposed by Bruce J. He was not obliged to do so, and his doing so provided the applicant with an advantage, and resulted in a lower sentence than may have been imposed. 54 In taking this course Grove J did accept the psychiatric evidence that, while falling short of establishing diminished responsibility, was sufficient to show that the appellant had obsessional, discursive, narcissistic and suspicious personality traits; that he was in marked distress at the time he killed his wife, and perceived himself to be in crisis. He gave those circumstances little weight. I have already noted that he considered the circumstances of the appellant's custodial history also to be of little weight. 55 These matters were plainly taken into account in the initial sentence, passed by Bruce J and therefore influenced the sentence passed by Grove J. True, there was an additional period of unsentenced custody as a result of the successful appeal against Grove J's orders, but, in my view Grove J was correct in regarding this as in the circumstances, insignificant. In my opinion the sentence could not reasonably have been less. 56 In his final submission, the appellant suggested that the time he has already served would be sufficient punishment. In making this submission he observed that "nothing further will bring my wife back to life and I might have to believe I have lost my son forever." 57 This submission does not recognise the various important components in a sentencing decision, of which both specific and general deterrence are part. So also is retribution. The appellant has failed to identify any basis on which the sentencing judge was in error and has failed to demonstrate any reason for thinking that the sentence imposed was manifestly excessive. I would grant leave to appeal against the sentence but dismiss the appeal. 58 The orders I propose are:- 1. the appellant be granted whatever extension of time is necessary for the institution of the appeal, and whatever leave is necessary to reinstate the appeal against conviction previously abdoned; 2. the appeal against conviction be dismissed; 3. the appellant be granted leave to appeal against the sentence imposed; 4. the appeal against sentence be dismissed. 59 McLELLAN J: I agree with Simpson J 60 IRELAND AJ: I agree with Simpson J for the reasons given by her Honour. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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