New South Wales Court of Criminal Appeal CITATION : REGINA v GOSLING [2002] NSWCCA 351 FILE NUMBER(S) : CCA 60683/01 HEARING DATE(S) : 26 July 2002 JUDGMENT DATE : 29 August 2002 Regina PARTIES : v Amos Gosling JUDGMENT OF : Heydon JA at 40; Levine J at 45; Adams J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 70201/01 LOWER COURT JUDICIAL Howie J OFFICER : COUNSEL : R A Hulme (Crown) D G Dalton (Appellant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appellant) CATCHWORDS : Murder - conviction appeal - adequacy of directions - defence case of intoxication and mental disturbance - whether risk that jury only considered intoxication - appeal dismissed Crimes Act 1900 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Criminal Appeal Rules CASES CITED: Murray v The Queen [2002] HCA 26 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 68603/01 HEYDON JA LEVINE J ADAMS J Thursday 29 August 2002 REGINA v Amos GOSLING Judgment 1 ADAMS J: This appeal arises out of the killing of one Graham Withington at Banora Point on 15 November 1999 by a shotgun blast in the back. It was the prosecution case that the gun was fired by the appellant, Gosling, who was present at the time with Scott John Denton, Paul David Singleton and Adrian Luke Stelfox. Stelfox had pleaded guilty to manslaughter and was a witness for the prosecution. Gosling, Denton and Singleton were charged with Withington's murder. In the result, Gosling was convicted of that murder but Denton and Singleton were convicted only of his manslaughter. The trial commenced on 18 July 2001, at which time the appellant pleaded not guilty to the indictment. However, on 26 July 2001, the trial having gone for some days, the applicant was re-arraigned on his own application and pleaded not guilty to murder but guilty to manslaughter. Amongst other things, it followed from the plea that Gosling admitted that the act of firing the shotgun was voluntary and not accidental (cf Murray v The Queen [2002] HCA 26) as distinct, of course, from the issue whether he intended to kill or cause grievous bodily harm. The plea was not accepted by the prosecution in discharge of the indictment and the trial proceeded. Following his conviction, the appellant was sentenced to imprisonment for sixteen years with a non-parole period of twelve years. 2 A significant amount of the evidence at trial was not in dispute. Matthew Denton, the elder brother of the accused Scott Denton, had received a sum of money by way of compensation for injuries he suffered in an accident some time in 1998. He used this money to purchase a house and moved out of home. There was some evidence of disputation between himself and his mother, the latter believing that her son was unable to care for himself or manage his own affairs. Matthew Denton's house contained a granny flat that Mrs Denton wished to occupy with Scott. Matthew Denton, however, installed a friend (Matthew Kickbush) as a tenant and, a few weeks before his death, the deceased moved into the granny flat with Mr Kickbush to assist in paying the rent. Mrs Denton repeatedly attended the flat to abuse the tenants and demand that they should leave and often told her son, Matthew, that he should expel them. On the afternoon of 15 November 1999, Mrs Denton went to the premises and an altercation occurred between her and the deceased at which, she alleged, he verbally abused her, assaulted her and then exposed himself to her. Mrs Denton told Scott about this later that day, and complained about it to her partner. There was a dispute in the evidence as to whether Mrs Denton's account of what occurred was truthful and there is good reason for believing that she had, in a number of significant respects, grossly exaggerated. 3 Shortly after 10 o'clock on the night of the incident involving the deceased and Mrs Denton, Matthew Kickbush, the deceased and a friend of theirs, Jai Masterson, began working on Kickbush's motor vehicle in the driveway of the property. Masterson saw a red car drive past with its lights off and shortly after that three men walked towards the property. One of them started walking up the driveway holding one or possibly two pipes. This man was Adrian Stelfox. Gosling and Singleton were on the grass in front of the house. Gosling raised a gun to his shoulder, aiming at the men at the motorcar in the driveway and fired it. Kickbush and Masterson ran into the premises. When they noticed that the deceased was not with them they went back outside by which time the three offenders had left the property. The deceased was lying on his back, dying. 4 Singleton gave evidence in his own case, which was relied on by the Crown in its case against the appellant. He said that Scott Denton arrived at his house around 5 o'clock on the day of the murder and told him about the incident involving his mother, adding some further details. The two agreed to go to the house and ask the tenants to leave. The appellant then telephoned Singleton who told him what they planned to do and asked if he would join them, to which the appellant agreed. Scott Denton and Singleton then went to pick up the appellant from his home where he appeared to be arguing with his parents. He seemed agitated and got into the car. The appellant then asked if he could pick up a shotgun he was thinking of purchasing from one Craig Coulthard, which could be used to intimidate the deceased. The three men then drove to Coulthard's house where the appellant obtained the shotgun and three shot shells. They then drove to get some food for Scott Denton, driving past Matthew Denton's home so Scott could show Singleton and the appellant where it was. Four long neck stubbies were bought and they went to a nearby beach where, according to Singleton, the appellant consumed three of them. They decided that the shotgun was to be taken to the premises but it was not to be fired. Nevertheless, the gun was test fired by the appellant who offered the others a turn, but they declined because of the noise. The three of them then went on to buy petrol at a nearby service station, where they met Adrian Stelfox who joined them and suggested that they should go to his home to obtain clothing to conceal their identities. At Stelfox's home, Stelfox, Singleton and the appellant smoked some marijuana. They agreed that when they arrived at Matthew Denton's house, Scott Denton would remain in the car and the other three would confront the tenants. The gun was to be taken to the house to intimidate them. I should mention at this stage, although somewhat out of order, that Singleton, who was standing beside the appellant when he lifted the gun, said that he "lined him up", meaning, of course, that he aimed at the deceased although this may have been qualified somewhat by saying, "he lifted it straight up and went bang" when attempting to explain why, when he saw the appellant lift the gun, he did not try to stop him from discharging it. 5 Scott Denton's evidence was broadly in line with that of Singleton. As to the gun, however, he said that the original idea was that the appellant would take it back to his own home after purchase and that it was the appellant who then suggested that the gun should be taken to the premises to scare the tenants. Adrian Stelfox's evidence added some further details not presently material. However, he said that, whilst at his house, the appellant and Scott Denton talked about the gun, although he could not recall what was said except that he thought that the appellant was to have the gun for the purpose of intimidation. Stelfox also recalled Denton saying to the appellant in the car, "If you have to use it, do him in the leg", speaking of the shotgun. Stelfox confirmed that whilst at his place the appellant smoked two cones of marijuana. 6 There are a number of accounts of what happened at the scene. It is sufficient for present purposes to take that of Stelfox. He said that the four of them travelled in Scott Denton's vehicle to the premises where they parked a few blocks of land away. Scott Denton stayed in the car, whilst the others alighted and walked to the premises. Stelfox walked ahead followed by the appellant and Singleton. He saw three people working on a four-wheel drive vehicle motor vehicle in the driveway. Stelfox heard one of the men behind him – either the appellant or Singleton – call out, "Who's Graham?" There was a reply to the effect of, "Who the fuck wants to know?" from one of the men at the car. Stelfox was about to hit one of them with a broomstick that he had brought with him when he heard a loud noise. He saw a man drop to his knees. Stelfox turned around and saw the appellant with a gun. Three of the men ran away towards the car. They entered and the car was driven away quickly. Shortly after this the appellant said words to the effect of, "I just shot someone". They then went to the home of two acquaintances where the gun was left. One of these persons was Chad Meha who said that the appellant, Stelfox and Singleton arrived between 10.30 and 11pm on the night in question, the appellant carrying a gun and saying, "I've shot someone in the stomach" and "It's a small town, I don't want to get caught for this". A little later on the appellant said, "I've got bad karma, I've just shot somebody, I need to go, let's start walking home" and the three visitors left. They had been in the house about twenty to thirty minutes. The appellant and Stelfox returned to the house the next morning where the gun was disassembled by the appellant who wiped it with a tea towel. The appellant then went with Mr Meha to a nearby swamp where they disposed of the gun in three parts. Shortly after their return to the premises, the police arrived and arrested the appellant and Stelfox. Mr Meha showed them where the gun had been disposed of. 7 The appellant said when he was arrested, "I didn't shoot him. I knew this was wrong. I didn't think the gun was loaded. Paul had it." Except for the second sentence, these were lies. Police interviewed the appellant on 16 November 1999 and 28 July 2000. In the first of these interviews, although he made a number of admissions about his involvement in the attack, he denied that he fired the gun, asserting that Singleton did so. The account that he gave, however, was coherent, detailed and in many ways calculated, self-serving and cunning. He said, as to intoxication, that he had drunk two long neck bottles of beer and smoked "a tiny little bit out of a joint". The interview took about one and a half hours and was played to the jury. In my view, they were entitled to act upon the view they formed of the appellant as he appeared in the interview, especially since it occurred on the day after the killing. 8 On 25 June 2000, police were handed an envelope by the deceased's father, which had been written by the appellant. He described the crimes and his attitude to it in the following terms - "When we arrived at the premisis (sic), Adrian Stelfox began hitting people with a stick. I saw a man running towards Adrian and I shot at him because I wanted to stop him from hitting my friend. I have also been informed it appeared to be the dog he was running for. The ordeal and pain for the loss of your son I can never make up to you. But please believe me that I only wanted to stop him, not kill him . Nothing can erase the guilt and repentance I have for the death of a very innocent man. No words can possibly be enough to help give you peace, but if ever there was a word it would be 100% from my heart – I am so, so sorry. I am for the rest of my life indebted to you and will always be ashamed of what I have done." (Emphasis added.) 9 Shortly after this, on 28 July 2000, the appellant agreed to a further interview with police, which occurred at the Malabar Correctional Centre. Amongst other things, the appellant told police that he had written the letter to the deceased's father because he thought "he had a right to know exactly what happened on the night and what happened to his son". His account of the shooting was in the following terms - "Adrian Stelfox started hitting a guy with a bat and this all happened within, within 20 seconds of getting up there. It was, it was very, very quick. Adrian started hitting this guy with a stick. Another man came towards him with a shifting spanner. I put the gun up to my shoulder and I really don't know if I meant to shoot or not, I've got to be honest about that . I did hit someone, it's the deceased, and I think I was as shocked as everyone else was. The guy put his hands up in the air and fell down on his knees. I looked at Paul Singleton, Paul Singleton, started, started running. I looked at Adrian, Adrian was just staring at me. I ran away and then Adrian followed…" (Emphasis added.) 10 A great deal of other ground was gone over once more, which it is not necessary to repeat. The appellant, however, said that he had smoked some cones of marijuana. Amongst other things, he repeated his account of the shooting but it is difficult to reconcile that account with the fact that the deceased was struck in the lower back with a shotgun blast. He said that most of what he had said in his previous interview was false but that he was now telling the truth. Towards the end of the interview, the following occurred. - "You mentioned earlier on you didn't know whether you meant to shoot or not, can you tell me what you meant by that question? A. I don't know if I meant to shoot it or not. I remember, like, I meant to put the gun up to my shoulder just to get his attention, and then bang, before I knew it. It was unexpected. I think I was as shocked as Paul and Adrian were. As soon as it was shot it was like everything stood still for a moment. I looked at Paul, Paul looked at me and he just ran for his life and that's when he put his arms up in the air. It's like, it's like he didn't feel it at first. I didn't know where it had gone. I think some of it might have hit the car because there was a metal on metal sound after it happened, it was like a, like a tinny noise. I can still remember it. But I really don't know whether I meant to shoot it or not. I still don't know." (Emphasis added.) 11 At the end of the interview, the following was said - "…Amos is there anything further you wish to tell us about the matter? A. Just that we didn't go there to hurt anyone. I don't know whether when I shot him I meant to or not, but it's not something I'm proud of, it's something I hate. Actually, I've actually tried to take my life over it…" 12 The suggestion that he may not have meant to shoot, if intended to convey that the act of shooting was involuntary, was, as I have pointed out, contradicted by the appellant's plea of guilty to manslaughter. This matter was not, therefore, a live issue in the trial. The interview took something over an hour to complete. Again, it was played to the jury and, again, the jury was entitled to form a view on the issues in the case so far as they affected the appellant having regard to what the appellant said and the way in which he said it. 13 The appellant's essential defence was that provided by s23A of the Crimes Act 1900 which, so far as is material, is in the following terms - "23A. Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. … (8) In this section: " underlying condition " means a pre-existing mental or physiological condition, other than a condition of a transitory kind." 14 The prosecution case, so far as s23A was concerned, was that the appellant's impairment, when considered apart from intoxication, was not such as to warrant a verdict of manslaughter. The prosecution called Dr Olav Nielssen, a forensic psychiatrist, who saw the appellant at the Metropolitan Remand Centre on 13 July 2001. His report was tendered in evidence without objection. That report included the following - "From Mr Gosling's accounts of his mental state around the time of the offence, it appears that the disabling effect of his psychiatric disorder was the abnormal mood that resulted, in which he felt more depressed, and also more angry and less able to control himself. He did not report the perceptual disturbances that contributed to the offence. The presence of an abnormal mental state was a contributing factor to the offence. Other factors that contributed to the offence, include Mr Gosling's impulsive and anti-social personality, which led to his willingness to participate in an act of intimidation, and also to his interest in weapons. He was also moderately intoxicated after drinking around 100 grams of alcohol and smoking some cannabis. His association with a group of young men who probably urged each other on, particularly Adrian Stelfox who apparently launched straight into an assault of someone he did not know, probably also contributed to the tragic outcome. It is difficult to separate the effect of Mr Gosling's psychiatric disorder from the other contributing factors. From Mr Gosling's accounts, it does not appear that he was suffering from symptoms that affected his capacity to understand the events, nor did the symptoms of the disorder greatly affect his capacity to judge whether his actions were right or wrong. The disorder may have affected his capacity for self-control, in that it is likely to have contributed to a heightened state of arousal and increased tendency to act on impulse." 15 The appellant had told Dr Nielssen, in addition, that on the day before the offence he was forced to leave work because of perceptual disturbances that he attributed to previous abuse of hallucinogenic mushrooms. He told Dr Nielssen that he was packing bags at the checkout when objects in the bag and also the walls of the building began to move. He said that he found this experience very distressing, because he had no control over it and it affected his ability to work. He said that he went from work to see his general practitioner, Dr Chapman, who had prescribed some medication for him and that he felt depressed after leaving the doctor and had several drinks of whisky after arriving home. He said that he then rang his friend, Singleton, and he then found about the complaint of Mrs Denton concerning the deceased. So far as his account of the offence went, he told Dr Nielssen that the account he gave to the police in the second interview was correct, as far as he could remember, but that he had no recollection of a short period of time from immediately before the shooting until he fled the scene and his account included information he had gleaned from other statements, as well as what he could remember. He told Dr Nielssen that his understanding of what had happened was that he saw the deceased move towards Stelfox and thought he was about to attack him and believes he raised the gun and fired as a reflex action although he could not explain why he did so as he said there was no plan to use the gun beforehand and Singleton had stopped him when they had got out of the car and specifically told him not to fire the gun. In his evidence, Dr Nielssen said that the auditory hallucinations that the appellant had reported were not influencing his actions at the time of the shooting and there was no suggestion that he was out of touch with reality at that time. This is not to say that his disorder was irrelevant in the sense that Dr Nielssen thought that there were associated symptoms of unstable mood and irritability and disorganised thinking that may have been operating at the time. Although Dr Nielssen thought that the appellant was, at the time of the shooting, in the early phase of a psychotic illness demonstrated by mood swings, he believed that the appellant fully understood the events and was not affected by perceptual disturbance. He summarised his view (in answer to questions from his Honour) in this way - "[His self control was diminished] mainly in the way that a depressed and particularly irritable mood would affect your tendency to act and also to prevent you from thinking your actions through". 16 He accepted that the appellant's ability to control himself was impaired but thought that intoxication was the most significant contributing factor in this respect. Intoxication was important in this particular context since the jury had to put out of consideration the effects of self-induced intoxication, if any. In cross-examination by counsel for the appellant, no more was sought to be elicited than that the appellant had a mental impairment leading to a diminished capacity for self-control. The jury asked three questions, the third of which was - "Q. …At the time Mr Gosling pulled the trigger, did he know what he was doing in your opinion? Firstly, from all that you have seen read and heard, is there any suggestion at all that Mr Gosling did not know what he was doing when he pulled the trigger of the gun? A. No" 17 No questions were put to Dr Nielssen in cross-examination that attempted to procure a qualification of this answer, let alone that suggested it was wrong. 18 The defence called Dr Wilcox, a general and forensic psychiatrist, whose conclusion was stated as follows - "At the time of the alleged offence he was suffering from an abnormality of the mind, specifically a Hallucinogen Persisting Perception Disorder and a secondary depression. This abnormality of the mind would have substantially impaired his capacity to control himself. The underlying condition was not of a transitory kind and it is probable that permanent personality attributes were also relevant in the genesis of his depressed mood." 19 Amongst other things, Dr Wilcox took a history that, before the attack, the applicant had smoked a "couple of cones" and (as I read the report) had shared three long neck bottles of beer with the other men and later had smoked some more marijuana. He said that, when at Stelfox's house, "I was really, really stoned" and that he started seeing things again "just colours and stuff". The appellant told Dr Wilcox that he was unclear about what happened after they left Stelfox's house and his recollection of the sequence of events was patchy and very vague. He said that he recalled getting out of the car and at the time he was "pretty wild". He said that, although he was not sure, he thought Stelfox hit one of the men and that the deceased might have walked towards him and when this happened, "he pulled the trigger". He told Dr Wilcox he was unable to explain his actions and was unable to remember firing at the deceased because "a lot of his memory" was "scrambled". He told Dr Wilcox that he was "guessing" some of the events of the night as he had been trying to make sense of his actions. He told her that he was unable to see himself as "genuinely shooting at someone". Dr Wilcox commented, "his inability to recall the actual shooting may be related to his level of arousal, it could also be related to a reluctance to acknowledge his actions". In her evidence, Dr Wilcox repeated her conclusion that because of his abnormality of mind and anxious state, his ability to react was heightened and he had less control of his behaviour so that his judgment would have been impaired and he was less likely to consider the consequences of his actions. She then gave this evidence - "Q. Any other way in which this abnormality of mind would have, in a practical sense, have contributed to what happened on this particular night of the firing of the weapon? A. As I mentioned in the report, I believe his judgment would have been impaired and he wouldn't consider the consequences of an action; he was less likely to consider 'If I do this it would have this consequence'. He couldn't consider that, 'If I fire the gun it might kill someone'. I don't think he could consider the consequences of the action. Q. So it was more impulsive? A. More impulsive." 20 Dr Wilcox's report did indeed refer to impairment of the appellant's judgment but it nowhere suggested that he was unable to appreciate the consequences of his action. Indeed, the doctor's rejection of any defence under s38 of the Mental Health (Criminal Procedure) Act 1990 was inconsistent with any such suggestion. Furthermore, Dr Wilcox confirmed Dr Nielssen's view that the appellant was not out of touch with reality and there was no suggestion of psychosis, although alcohol and drugs "would not have helped his condition". The first answer quoted itself contains the qualification "less likely". I think that Dr Wilcox' evidence should not be understood as going any further than that the appellant's ability to appreciate the consequences of firing the shotgun was so impaired as to reduce his understanding and self control. This is obviously what counsel understood by it, as indicated by the second question, a summary accepted as accurate by Dr Wilcox. 21 After Dr Wilcox's evidence had concluded, his Honour invited the jury to write down any questions that they might like to have put to Dr Wilcox. A number of questions were produced – "1 How can you arrive at conclusions about a person's state of mind at the shooting when you only ask people with a vested interest in determining that person's innocent? For example, why didn't you also ask people who also know him or how were with him to help draw your conclusions? 2 How from interviews with him and his parents well after the event do you determine that Gosling's state of mind at the time of the event was other than normal? 3 How long would it take for the medication, Zoloft etc to wear off? 4 How long does it take for medication to start working again once taken? 5 Could the alcohol and drugs over the [preceding] weekend have affected his state on the Monday night and [been] the reason for him going home from work?" 22 There is no need for present purposes to advert to the answers given to these questions but the jury was apparently satisfied with the doctor's responses. 23 The complaints put forward by counsel for the appellant concerning the learned trial Judge's directions to the jury concentrated on the evidence, such as it was, of his intoxication at the time in question. These grounds were formulated in the following way - "His Honour erred in failing to appropriately direct the jury regarding the law of intoxication: (i) His Honour failed to direct the jury they should consider the medical evidence in determining whether the appellant had the requisite mens rea for murder in accordance with s428C Crimes Act 1900 (NSW); (ii) His Honour failed to direct the jury that whilst they could not consider the question of intoxication in determining the defence of diminished responsibility there is no such restriction upon consideration of the appellant's psychiatric condition in conjunction with the effects of intoxication for the purposes of s428C and that they should specifically consider the medical evidence in this regard; (iii) His Honour failed to direct the jury that whilst the appellant bore the onus of proof with respect to the defence of diminished responsibility when considering the appellant's psychiatric condition in conjunction with intoxication for the purpose of determining whether the appellant had the requisite mens rea for murder it was the Crown who carried the burden of proof and the onus in this regard was proof beyond reasonable doubt; and (iv) His Honour failed to direct the jury that whilst the question of intoxication in conjunction with the appellant's psychiatric condition should be considered for the purpose of determining whether the appellant had the requisite mens rea for murder it could not be considered on the question of whether the appellant had the requisite intent for manslaughter, and therefore should they have a reasonable doubt as to whether the appellant had the requisite mens rea for murder as a result of his intoxication in conjunction with his psychiatric condition they should acquit of murder but convict of manslaughter." 24 Before dealing with each of these complaints, it is convenient to set out his Honour's directions on the question of intent and the impact of s23A of the Crimes Act 1900. I should, however, first point out that when the Crown prosecutor opened the case he informed the jury that it was the Crown case that the appellant shot the deceased and that when he did so he intended to kill him or cause him grievous bodily harm or, if the jury found that the deceased died as the result of the appellant's unlawful and dangerous act, then they would convict him of manslaughter. A few days into the trial, after what I might call the conventional evidence was called in the Crown case, the Crown called Dr Nielssen on the issue of the defence raised by the appellant arising from his alleged abnormality of mind. The learned trial Judge thought it appropriate to explain to the jury how it might come about that the prosecution was to call a psychiatrist concerning the mental state of one of the accused. He then gave some brief directions as to the relevance of the evidence. His Honour informed the jury - "As I understand it, the accused, Mr Gosling, is going to raise a defence to the charge of murder which is known as substantial impairment. You will learn more about it at the end of the trial when I give you some directions in relation to it, but just before the psychiatrist is called, it seems to me that you should have some understanding of why the psychiatrist is being called, otherwise it may seem a bit pointless but as I understand it, Mr Gosling is going to raise this defence. It's a defence to the charge of murder and it's the only matter upon which any of the accused has an onus of proof; in other words, it is the only matter which the accused has to prove to your satisfaction. Therefore, Mr Gosling will bear the onus of proving, if you find that the Crown has proved that he otherwise be guilty of the offence of murder, that he should not be convicted of murder but be convicted of the charge of manslaughter to which he has pleaded guilty on the basis of this defence that is available to him which relates to the question of whether he was mentally impaired on the night in relation to his ability to control himself or to understand facts and circumstances surrounding his firing of the weapon on this particular night. … So the Crown is going to call a psychiatrist who, as I understand it, is going to give you evidence material on this issue of whether or not, firstly, Mr Gosling was impaired in the way he could understand things on this particular night or could control his conduct or his ability to think rationally and reasonably and that is why the psychiatrist is being called at this time and I hope that that explains to you where the psychiatrist's evidence fits in…Don't be too concerned yet about the defence of mental impairment. If counsel believe I should tell you a bit more about it before the psychiatrist gives evidence, then I will do so. That's a matter counsel can consider while they are speaking to the psychiatrist and before we re-assemble." 25 In the absence of the jury, the Crown prosecutor raised the issue of intoxication, which was a matter he thought would be likely to come out and whether the jury should be told that, for the purposes of the defence, self-induced intoxication was not to be taken into account. With the consent of counsel, his Honour thought that he should read to them s23A(1) and s23A(3) of the Act. His Honour did this, explaining briefly what the provisions meant in particular, reminding them of other evidence about the appellant's alcohol and drug ingestion prior to the shooting and directing the jury that "when we come to this provision to determine whether or not this defence is applicable, you must disregard the fact that he may have been affected by alcohol or drugs." Counsel for the defence did not suggest that there was any error in these directions. 26 In dealing with the elements of the offence, his Honour gave to the jury a document in which he set out the elements required to be proved. It specified in conventional form the elements of the crimes of murder and manslaughter, specifying as to the former that the appellant's intoxication was relevant to the element of intent. The document set out the defence provided by s 25A under the heading Partial Defence to Murder, setting out the elements of the defence, the onus of proof and the result of a finding in favour of the appellant, pointing out (as was necessary, that, in considering this defence, the jury should disregard the possibility of the appellant's intoxication. Under the heading Manslaughter, the document set out the Crown case which was that, in the absence of proof beyond reasonable doubt of the elements of the offence of murder, the accused could be found guilty of manslaughter if the Crown had established beyond reasonable doubt that the deceased was killed by the voluntary act of the accused, which act was unlawful and dangerous. In dealing with the charge of murder in the course of his directions, his Honour directed the jury that the real issue was whether the Crown had to prove beyond reasonable doubt "that the shotgun was fired with either an intent to kill or an intent to inflict really serious injury" and that the "accused's intoxication by alcohol or drugs is relevant to a consideration of whether he had either of these intentions at the time of firing a shotgun". His Honour (rightly, in my view) indicated to the jury that there was no suggestion in the trial that, when the appellant discharged the firearm, it was not an intentional act. His Honour pointed out that there was no suggestion that pulling the trigger was an involuntary act, as if the appellant were knocked or slipped and fell over and accidentally pulled the trigger. His Honour therefore suggested to the jury that the first matter that the Crown had to prove, namely that the act involving death was the voluntary act of the appellant, would not concern them greatly. His Honour said that the issue in the case (so far as murder was concerned) was - "…whether at the time of the firing of the weapon, are you satisfied beyond reasonable doubt that he intended either to kill Mr Withington or at least inflict grievous bodily harm upon him. You will see from that first page [of the document given to the jury] and as you have been told before grievous bodily harm means injury of a really serious kind. It is for you to determine in this particular case, that there has been no suggestion, as I understand it, that if the weapon was fired that it would cause really serious injury to another human being fired at a distance of some six to seven metres from that person. The real question is whether or not Mr Gosling intended that result to occur. So you are to try as best you can on the evidence to discover what was in his, Gosling's, mind at the time he fired the gun. What was his intention? Well, intention is an everyday word. It means no more in the context of a charge of murder than it does when it is used by people in ordinary, everyday life. You are concerned here with the intention of Mr Gosling to bring about a certain result or consequence when he fired the gun…" 27 His Honour then gave conventional directions concerning inferences about intention, in particular referring to the inference that arises from what the person does and the context and circumstances in which the act or acts occurred. His Honour said - "Now in some cases a person's acts may provide the most convincing evidence of what the person's intention was. Where a specific result is the obvious and inevitable consequence of a person's act and where the person deliberately does that act, you might readily conclude that the person did that act with the intention of achieving that specific result. So when I post a letter in the letterbox with a stamp and it being addressed, it can reasonably be inferred that I intended that letter to reach the person to whom it is addressed. It might not be so. I could be a letter bomber and could have rigged it so that the letter would go off because I had some reason to dislike the post office and I have organised so that it was never intended that the letter be received by the addressee. It shows you that this inference available is not the only inference to be drawn. Again, you look at it from the commonsense point of view and look at the circumstances in which it is occurring." 28 The example of the letter bomb was, if I may respectfully say so, rather far fetched and, indeed, may not be strictly correct so far as it suggested that, in the posited circumstances, there was no intention that the addressee should not receive the letter (see Murray v The Queen [2002] HCA 26 per Gummow and Hayne JJ at [53] and Kirby J at [89]). More importantly, the insistence on the application of commonsense may have deflected the jury from giving appropriate consideration to the significance of the evidence of the appellant's mental state, especially the opinion of Dr Wilcox (quoted above) to the effect that the appellant might not have been able to reason from firing the shotgun to the infliction of death or grievous bodily harm. This certainly did not accord with commonsense. The evidentiary basis for the opinion, as stated in Dr Wilcox' report, depended essentially on the appellant's account to her and there was very good reason for the jury to have rejected its truthfulness and, accordingly, the doctor's opinion. Indeed, the jury could well have considered that Dr Wilcox was not actually expressing the opinion that the appellant did not understand the consequences of firing the shotgun at the deceased. Moreover, such an opinion was at odds with her evidence and that of Dr Nielssen that the appellant was not out of touch with reality. It seems to me that, if the jury were left with the impression that it was right, indeed, necessary to evaluate the import of the medical evidence (if they accepted that it did indeed suggest that the appellant did not understand the consequences of shooting at the deceased with a shotgun) by reference to commonsense notions of what an ordinary person might understand or intend, this would amount to a serious misdirection. However, I am not satisfied that there was any real risk that the jury would have been left with such an impression. 29 In dealing with the Crown case on this aspect, his Honour said - "The Crown says, in effect, what better evidence could you have of what he intended to by what acts he intentionally performed at the time. The Crown says that looking at his general level of intelligence and sobriety at the time and the surrounding circumstances, that he must have known that as a consequence of firing the gun in those circumstances that whoever might be hit with the shot would at least be really seriously injured, especially when you consider that distance at which the gun was fired from the men at the jeep. The Crown's argument is that there can be no suggestion that he fired the gun other than intending to shoot someone and from what he had seen of the discharge of the weapon [when it was test fired] he must have known that anybody would be seriously injured by firing the weapon at that short distance in the direction of the person at the vehicle, particularly when there is evidence from both Mr Singleton and Mr Masterson that he took general aim with the rifle before he fired it. Further, Mr Gosling himself said to the police that the thing that caused him to fire the weapon was that he believed at the time that a person at the vehicle moved in a threatening way towards Mr Stelfox. You might infer that this was the act that he believed required him to discharge the weapon and that therefore he intended to shoot that person." 30 Dealing with the defence case in this respect, immediately after these directions, his Honour said - "In this case, you have not heard from Mr Gosling in this Court except by way of police interviews…But he is entitled simply to take that course and he is entitled to rely on what he told the police and the psychiatrists that he had no particular intention when he fired the rifle…What he says in the interview with the police, particularly the second interview, and what he told the psychiatrist is important material and you must consider it as a possible version of the events and you can only convict the accused if at the end of the day you determine that there is no reasonable possibility that that version could be true." 31 There then followed extensive quotations by Howie J from the interviews with police giving the appellant's account of the shooting and what he was thinking at the time, summarising the position, in my view fairly, in the following way – "So, in effect, the accused says that it was an instinctive reaction that he had to what he had perceived at the time to be some sort of physical threat to Mr Stelfox and he raised the weapon and fired it without any specific intention as to the consequences of discharging the weapon. Well, before you can convict Mr Gosling of murder, you have to be satisfied beyond reasonable doubt that he did have the specific intention to at least inflict grievous bodily harm when he pointed the gun towards the deceased and fired the weapon. As I have said, if you have a reasonable doubt as to whether he did have that intention, then you must acquit him of murder and you would convict him of manslaughter if you found that offence proved beyond reasonable doubt. Now, it is on this question of Mr Gosling's intention at the time he fired the weapon that this issue of Mr Gosling's intoxication may become important in your deliberations. It is relevant when you consider whether the Crown has proved to you beyond reasonable doubt that he intended to inflict at least grievous bodily harm on Mr Withington or to kill him." 32 There then followed directions as to the relevance of the state of the appellant's sobriety in the context of the requirement that the Crown must prove specific intention and his Honour brought to their attention the evidence of intoxication both by alcohol and drugs together with what was said about this subject by Dr Nielssen and Dr Wilcox. His Honour also referred, quite properly, to the evidence that neither Singleton nor Denton noted anything unusual about the appellant's state and certainly formed no view that he was under the influence of drugs or alcohol. His Honour pointed out, rightly, that the mere fact that the accused was affected by alcohol and drugs was no defence even though it might explain why he might have acted otherwise than he would have done had he been sober and his Honour reminded the jury that the crucial question was, taking into account the level of intoxication of the accused, whether the jury was satisfied beyond reasonable doubt that when he fired the gun he intended to inflict really serious injury upon the deceased or some other person at the motorcar in the driveway. His Honour then reminded the jury that counsel for the appellant had stressed that the crucial question was as to what was in the mind of the appellant when he fired the shotgun and, in substance, that this was a subjective not objective question. His Honour reminded the jury that defence counsel submitted that it should have regard to the undisputed psychiatric evidence that the appellant was suffering from a mental disorder at the time of the shooting and commented that, even if that were true, the jury would have to consider the relevance of that disorder as to what he might have believed or intended, giving as an example the possibility that, as a result of this mental disorder, the appellant acted impulsively and had formed no specific intention when he discharged the weapon. His Honour balanced this line of reasoning by mentioning the evidence that the appellant's disorder led to increased irritability and reminding the jury of the appellant's description to the psychiatrist of experiencing what he called "the red" (as I understand it, an irrational and exaggerated sense of anger) which, as his Honour pointed out, might rather indicate that the appellant indeed did have a particular intention at the relevant time. His Honour also commented that there was nothing in the psychiatric evidence that would suggest that the appellant might have forgotten as a result of his psychiatric condition that the firearm was loaded. It seems to me that his Honour's comments on the defence submissions under this head clearly indicated to the jury that the appellant's psychological state and, hence, the medical evidence on that matter was relevant in their consideration of the question of intent. After dealing with conversation of the appellant immediately after the killing which was the subject of evidence by Stelfox and the appellant's own accounts to the police in this respect, his Honour reminded the jury again of defence counsel's submission that the question of the appellant's intoxication and mental state were relevant to the issue of his intent. 33 It is significant to my mind that defence counsel was asked by Howie J immediately after his Honour's conclusion of this part of the summing up whether there were any further directions that he sought from his Honour. Defence counsel declined to seek any further directions. On the following day, his Honour resumed dealing with the case against the appellant, moving to the defence under s25A of the Act and, of course, necessarily discussing the psychiatric evidence concerning the existence of any abnormality of mind under which he may have been suffering. His Honour gave directions as to the onus of proof on this question and the requirement that it was to be considered by putting his ingestion of alcohol and cannabis out of consideration. At the end of his Honour's summing up as a whole no application was made by the appellant's counsel for any redirections. 34 It will be evident from what I have set out above that the question of the appellant's mental state was fairly and squarely placed before the jury both directly by his Honour and his Honour's reminding them of defence counsel's submissions about the matter. The appellant's account to Dr Wilcox of his feelings when he smoked marijuana, making "the red powerful", interpreted by Dr Wilcox as meaning that "it made the bad side of him more powerful" and his telling her that "on that night his demon let loose" amounted to a fairly cogent evidence (especially when together with the other evidence of personality disturbance and irritability) of a willingness, however transitory, to kill or at least cause grievous bodily harm, by firing the shotgun at the deceased. I do not see how the jury could have been left in any doubt that the appellant's intoxication and psychiatric condition together formed a part of the evidence of his mental state which – together with all the other material in the case – they needed to consider to determine whether or not the Crown had established beyond reasonable doubt the requisite intent. Nor do I see that the jury could have been in any doubt that the prosecution bore the burden of proving the relevant intent. Moreover, as the evidence about the appellant's descriptions of his feelings and the psychiatrists' descriptions of his mood (mentioned above) shows, there were good tactical reasons for the defence to focus, so far as murder was concerned, on the appellant's intoxication rather than his mental state. 35 The grounds of the appeal amount to different ways of making the same complaint, namely that the jury may have been left with the impression that the appellant's psychiatric condition was not material to the issue of his intention and that the defence bore an onus in respect of the materiality of the psychiatric evidence. It is obvious from my summary above of his Honour's directions to the jury on the question of intention that this was not the case. Moreover, defence counsel at the trial did not consider that the jury might have been left with this mistaken impression. 36 The appellant complains also that his Honour did not refer to the medical evidence in any detail with respect to the issue of intent for murder, noting in particular that the document submitted to the jury adverted only to intoxication. I consider that his Honour's directions were adequate in all the circumstances. It should be noted that the jury took with them when they retired the reports of both Dr Wilcox and Dr Nielssen, which had been tendered in evidence. His Honour did not bring to the jury's attention the specific evidence of Dr Wilcox as to understanding of consequences but, having regard to its true import and the omission by defence counsel to seek any such direction, I do not consider that this is significant. It is true that the issue of the defence under s23A of the Act complicated the jury's consideration of the appellant's guilt because of the changed onus of proof and the changed relevance of intoxication. That is no doubt why his Honour specifically reminded the jury of the materiality of intoxication when considering whether the appellant was guilty of murder. Of course, it was only in the event that they found the elements of murder had been established by the Crown beyond reasonable doubt that it was necessary to move to the partial defence. The mere fact that his Honour specifically brought to the jury's attention the relevance of intoxication on the question of whether the prosecution had established the elements of murder would not, in my opinion, have left the jury with the impression that the medical evidence about the appellant's mental state was immaterial. His Honour specifically told them that it was material, albeit by way of reminding the jury of counsel's submissions in this regard. 37 In light of the omission (I do not say failure, because I do not think there was any failure) of defence counsel to seek redirections along the lines complained of in this appeal, leave under rule 4 of the Criminal Appeal Rules is required to raise the issue in this Court. I would refuse such leave. Ground 2 - In all the circumstances, the verdict of the jury was unsafe and unsatisfactory such as to constitute a substantial miscarriage of justice. 38 This ground was abandoned in oral argument at the hearing of the appeal and it is therefore unnecessary to consider it. 39 I propose that the appeal should be dismissed. 40 HEYDON JA: Adams J has fully set out the background of this appeal. 41 The fundamental complaint underlying the appeal was as follows. It was said that while the trial judge correctly told the jury that in relation to a defence under s 23A of the Crimes Act 1900 his psychiatric condition was relevant, but any question of intoxication by drink or drugs should be left out of account, the trial judge incorrectly failed to tell the jury that not only questions of intoxication but also questions relating to the accused's psychiatric condition were relevant whether the Crown had proved sufficient mens rea in relation to the charge of murder. It was said also that the trial judge failed to indicate the burden and standard of proof of mens rea issues to the jury. 42 If the summing up is read as a whole, it cannot be said to have left the jury with the impression that the accused's psychiatric condition was irrelevant to mens rea. The only way the impression could have arisen would have derived from the trial judge's explicit exclusion of intoxication from s 23A questions. There was no real chance that the jury could have reasoned from the trial judge's explicit exclusion of intoxication on s 23A questions to an implicit exclusion of the accused's psychiatric condition on mens rea questions. 43 In any event, immediately after the trial judge gave a correct direction on the relevance of intoxication to mens rea, he said: "Mr Austin submitted to you that you should have regard to the undisputed psychiatric evidence that Mr Gosling was suffering from a mental disorder at the time. Even if that be true, you have to consider the relevance of that disorder as to what he might have believed or intended. For example, the evidence was that as a result of this mental disorder, if I can call it that, he was impulsive at the time, which might support the view that he formed no specific intention when he discharged the weapon. On the other hand, there was evidence that as a result of this disorder he had increased irritability and you have the evidence of the effect of what he called 'the red' upon him. That material might go the other way and indicate that he did have a particular intention at the time. But there is nothing in the psychiatric evidence which would support or suggest that Mr Gosling might have forgotten as a result of his psychiatric condition that the firearm was loaded as a result of this abnormality, whatever it might be." The first sentence of this passage summarises a submission, but the balance of it consists of directions. Those directions make it plain that on the question of mens rea, the jury was to take into account not only the evidence of intoxication but also the accused's mental disorder. Earlier directions made it plain where the burden of proof lay, and what its standard was. 44 For those reasons, and for the reasons given by Adams J, I agree with the order he proposes. 45 LEVINE J: I agree with Adams J and with the observations of Heydon JA. ********** 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.