New South Wales Court of Criminal Appeal CITATION: CVETKOVIC, Dragan v R [2010] NSWCCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 19-22 July 2010 JUDGMENT DATE: 21 December 2010 JUDGMENT OF: Campbell JA at 1; Simpson J at 421; Whealy J at 421 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed – CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 (Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 (Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination – CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder – CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] – APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] – EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence – CRIMINAL LAW – procedure – whether a "prescribed sexual offence" within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a "prescribed sexual offence" being tried with other charges [278] – STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of "except in so far as the context or subject-matter requires" [272]-[276] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether "judgment" in s157 includes reasons for judgment [306] – EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] – EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes "evidence of reputation" under s73 [353]-[354] Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 LEGISLATION CITED: Evidence Act 1995 Interpretation Act 1987 Mental Health Act 2007 Uniform Civil Procedure Rules 2005 CATEGORY: Principal judgment Andrew John Hawkins v The Queen (1994) 179 CLR 500 Bratty v Attorney General (Northern Ireland) [1963] AC 386 Chief Commissioner of State Revenue v Qantas Airways Ltd [2009] NSWCA 163 Conway v R (2000) 98 FCR 204 Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 Floor v Davis [1980] AC 695 Ha v The Queen [2010] NSWCCA 83 Hall v R (1988) 36 A Crim R 368 Hawkins v The Queen (1994) 179 CLR 500 House v The King (1936) 55 CLR 499 Kevin Barry Nolan v The Queen (WACCA, 22 May 1997) M v R (1994) 181 CLR 487 McKinney v R (1991) 171 CLR 468 CASES CITED : Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Murray v The Queen (2002) 76 ALJR 899 National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223 Qualtieri v Regina [2006] NSWCCA 95 R v Falconer (1990) 171 CLR 30 R v Ford [2009] NSWCCA 306 R v Leonboyer [2001] VSCA 149 R v Mrish (NSWSC, Hidden J, 4 October 1996 unreported) R v Radford (1985) 42 SASR 266 R v Serratore [1999] NSWCCA 377 R v Singh [2003] SASC 344; (2003) 86 SASR 473 R v Suteski (No 4) [2002] NSWSC 218; (2002) 128 A Crim R 275 Steven Vernon Hall (1988) 36 A Crim R 368 The Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839 The Queen v Falconer (1990) 171 CLR 30 TEXTS CITED: Pearce & Geddes, Statutory Interpretation in Australia, 6th ed 2006 PARTIES: Dragan Cvetkovic (Appellant) Regina (Crown) FILE NUMBER(S): CCA 2009/231349 COUNSEL: In Person (Appellant) M Cinque (Crown) SOLICITORS: In Person (Appellant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/21/12 LOWER COURT JUDICIAL OFFICER: Sweeney J LOWER COURT DATE OF DECISION: 7 August 2009 TABLE OF CONTENTS Para No. The Charges 4 Factual Outline 6 Uncontroversial Matters 6 Matters Not Common Ground 47 Relationship Between Appellant and Mrs Cvetkovic 47 Bad News From Mr Diamond 59 Circumstances of Stabbing 63 GROUND 1 – CONVICTION UNREASONABLE OR UNSUPPORTED BY EVIDENCE 84 Ground 1(A) – Charge Not Proved Beyond Reasonable Doubt 86 Dr Westmore's Evidence 95 Dr Nielssen's Evidence 107 Dr Hay's Evidence 123 Reasonable Doubt from Various Symptoms of Automatism? 125 Reasonable Doubt Raised by Some Fragments of Expert Evidence? 139 Matters Making Implausible Voluntariness and Intention to Murder? 147 Use of Left Hand 151 The Glasgow Coma Scores 154 Ground 1(B) – Inadequate and Tainted Evidence 161 The Ambulance Officers' Evidence 162 Unreliability of the Police Interview 166 Contamination of Audio Record of Police Interview? 170 Tainting of Evidence About Voicemail Messages? 172 Inconsistencies in Eyewitness Evidence 176 Mrs Cvetkovic's Evidence 182 Injury to the Neck 183 Cuts to the Clothing of the Victim: Jacket and Jumper 184 Position of Cars at the Exit of the Carpark 188 Dr Nielssen's Evidence Wrong 191 Significance of Leaving the Alternative Verdict to the Jury 193 Conclusion on Ground 1 195 GROUND 2 – WRONG INTERLOCUTORY DECISIONS 197 Ground 2(a) – Refusal of Adjournment Application 198 Ground 2(b)(i) – Evidence of Character and Tendency of Victim and her Daughter 219 Ground 2(b)(ii) – Failure to make Section 136 ruling Re Affidavits in Other Proceedings 236 Ground 2(c) – Admission of Relationship Evidence 242 Ground 2(d)(i) – Whether Part 5 Division 1 Criminal Procedure Act 1986 Applied to Trial 265 Ground 2(d)(ii) – Imposing Section 136 Limitation on Sexual Experience Evidence 278 Ground 2(e) – Refusal to Admit Reasons for Judgment in other Cases as Evidence 294 Previous Reasons for Judgment Admissible Under Section 65(3)-(6)? 295 Previous Reasons for Judgment Admissible Under Section 65(8)(b)? 301 Assistance from Section 157 in Showing Admissibility of Previous Reasons for Judgment? 304 Other Provisions Not Relied On 316 Ground 2(f) – Leave to Recall a Witness for Further Cross-Examination 318 Ground 2(g) – Rejecting Entry in Constable Foscholo's Police Notebook 324 Notebook Entry Admissible as a Business Record? 349 Notebook Entry Admissible as Reputation Evidence Under Section 73? 351 Notebook Entry Admissible as Res Gestae? 356 Application of Proviso in Section 6(1) Criminal Appeal Act 1912 357 Ground 2(h)(l) – Rejection of the "Never Sent" Email 359 Ground 2(h)(ll) – Failure to Admit Certain Medical Records and Correspondence with Lawyer 368 GROUND 3 – SUBSTANTIAL MISCARRIAGE OF JUSTICE 375 Ground 3(A) – Unfairness of the Trial? 376 Ground 3(B) – Misdirections or Inadequate Directions 386 McKinney Direction 386 Inadequate Directions on General and Specific Intent? 392 Inadequate Direction on Extent of the Evidence Required to Raise Reasonable Doubt 398 False or Misleading Directions? 402 Inadequate Directions on Medical Evidence? 405 Inadequate Direction on Glasgow Coma Scale? 407 Other Unspecified Inadequacies 408 Failure to Direct on Difference Between Insane and Non-Insane Automatism 411 Failure to Direct on Voluntariness of Specific Intent? 413 Ground 3(C) – Nature of the Evidence and the Overall Effect 418 Order 420 IN THE COURT OF CRIMINAL APPEAL 2009/231349 CAMPBELL JA SIMPSON J WHEALY J 21 DECEMBER 2010 Dragan CVETKOVIC v The Queen Judgment 1 CAMPBELL JA: On Wednesday, 6 June 2007 the Appellant stabbed his wife, Sladjana Cvetkovic ("Mrs Cvetkovic") over 30 times with a gyprock saw as they sat in the front seats of their motor vehicle in the carpark of the Macquarie Shopping Centre, North Ryde. The stabbing occurred a little after 2:00 pm, wholly or partly in the sight of five eyewitnesses. By the time of the trial the Appellant and Mrs Cvetkovic were divorced. 2 As things transpired, her Honour Judge Murrell determined various pre-trial issues over six days in the period 9-17 March 2009. The trial itself occurred over 40 days in the period May 2009 to July 2009 before her Honour Judge Sweeney and a jury. The Appellant was convicted of a charge of wounding with intent to murder. There was no dispute at the trial that it was the Appellant who had inflicted the stab wounds on Mrs Cvetkovic, and little or no dispute about many of the incidents that led up to the stabbing. The Appellant's defence at trial, evidently rejected by the jury, was that he had acted in a state of non-insane automatism. The Appellant now appeals against his conviction. 3 There are no substantive rules of law relating to the manner in which automatism bears upon whether a person is guilty of a crime. Rather, whether an accused was in a state of automatism at the time of committing an alleged offence is a question of fact, that bears upon whether the act in question was performed voluntarily, and whether it was performed with any specific intention that constitutes an element of the crime: Hall v R (1988) 36 A Crim R 368 at 371-2 per Roden J. The Charges 4 The trial related to four separate charges: 1. Between 1 September 2005 and 30 November 2005 at Swansea in the State of New South Wales, detained Sladjana Cvetkovic without her consent and with the intention of obtaining an advantage, namely a psychological advantage, and that at the time of the detaining, actual bodily harm was occasioned to Sladjana Cvetkovic. 2. On 6 June 2007 at Macquarie Park in the State of New South Wales, did wound Sladjana Cvetkovic with intent to murder Sladjana Cvetkovic. 3. On 6 June 2007 at Macquarie Park in the State of New South Wales, did maliciously wound Sladjana Cvetkovic with intent to do grievous bodily harm to Sladjana Cvetkovic. 4. On 6 June 2007 at Macquarie Park in the State of New South Wales, did use an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself. 5 With the Appellant's consent, all four charges were tried together. Count 3 in the indictment was expressed to be in the alternative to Count 2. The jury gave a not guilty verdict in respect of Counts 1 and 4, and a guilty verdict in respect of Count 2. Factual Outline Uncontroversial Matters 6 A skeleton of facts that bear upon the charge of which the Appellant was convicted was not a matter of controversy at the trial. Some detail, that fleshes out that skeleton, was controversial. I shall start by recounting some of the uncontroversial matters. 7 The Appellant and Mrs Cvetkovic both qualified as medical practitioners in what was then Yugoslavia. They married in 1985 and had a daughter, Aleksandra ("Alex"), later in that year. After a period living in Sweden, they moved to Australia in 1998. 8 They lived in rented accommodation in Sydney until August 1999, when they moved to Swansea Heads, where they had recently purchased a house. 9 In the second half of 1999 both the Appellant and Mrs Cvetkovic became unemployed. They remained unemployed for substantially the whole time until February 2006. They obtained income from operating a medical research company which was not financially viable, from a government small business incentive grant and from social security benefits. They made an unsuccessful attempt to establish a business involving website design. 10 In February 2004 Alex moved to Glebe, where she was commencing studies at Sydney University. 11 In February 2006 Mrs Cvetkovic obtained employment with Novogen Laboratories at North Sydney. Apart from a period of about three weeks in June and July when she went to live with Alex, she and the Appellant lived together in a rented unit at Meadowbank on working days from that time until they separated in October 2006. 12 It was Mrs Cvetkovic who initiated the separation, and after it the Appellant repeatedly tried to persuade her to return. Various emails passing between them, predominantly from the Appellant, were in evidence. They contained professions of the Appellant's love for Mrs Cvetkovic, reminders of occasions when she had said she loved him, and also accusations that she had lied to him, been unfaithful, and had started an affair with her superior at work, Professor Husband. In volume, the emails contained more professions of love and attempts to persuade her to return (including by seeking marriage counselling) than accusations. There was a repeated theme of reproach of her for not returning his messages, or not returning them promptly. 13 After the separation Mrs Cvetkovic lived with Alex in Glebe until January 2007, when Mrs Cvetkovic rented a unit in Pyrmont that she shared with Alex. However, after Mrs Cvetkovic rented the unit in Pyrmont, there were still occasional face-to-face meetings between the Appellant and Mrs Cvetkovic. For example, when the Appellant went overseas in February 2007, Mrs Cvetkovic drove to Swansea, stayed the night, and drove him to the airport. On his return from overseas in mid-March 2007, she collected him from Central Station, and drove him back to Swansea. 14 Though Mrs Cvetkovic had not given the Appellant the telephone number of the landline connection at her Pyrmont home unit, he found it out by obtaining the bills of the mobile telephone that she was using. He telephoned the Pyrmont landline number on the morning of 27 April 2007. He accepted that he probably did that for the purpose of letting her know that he knew where she was. 15 The Appellant's driver's licence was suspended for a three-month period starting on 8 March 2007. He agreed to Mrs Cvetkovic using the car that he usually drove, a Mazda 626, during the period of that suspension. 16 After the separation, Mrs Cvetkovic indicated that she wanted a divorce. The Appellant and Mrs Cvetkovic had signed an application for divorce in 2004, but not lodged it. In mid-February 2007 the Appellant, faced with "your clear indication that your decision for divorce is unchanged and final" lodged that application. However, at the end of March 2007 he discontinued that application. In May 2007 Mrs Cvetkovic began her own proceedings in the Family Court seeking a divorce. Her uncontradicted evidence was that those proceedings were due to be heard in July 2007 (tp 53). 17 In early May 2007 the Appellant telephoned the wife of Professor Husband, and told her of his belief that Professor Husband and Mrs Cvetkovic were having an affair. The Appellant also, at that time, spoke to the CEO of Novogen, endeavouring to have a meeting with him to talk about that alleged affair, but the CEO was not prepared to meet the Appellant. On 14 May 2007 the Appellant sent to each member of the Board of Directors of Novogen a letter requesting the Board to conduct a formal inquiry into various matters related to the alleged affair. He also sent each board member a document, in the form of an affidavit suitable for filing in court proceedings, that gave his account, over 14 pages of single-space typing, of matters relevant to the breakdown of relations between himself and Mrs Cvetkovic. There were no extant court proceedings in which that affidavit could be filed, but the coverpage identified the Appellant as the prospective plaintiff, and Professor Husband as the prospective defendant. 18 Ms Lorraine Morgan, the receptionist at Novogen, gave evidence that Mrs Cvetkovic: "… used to park at the back of the building until one day Dragan came and – with some papers for her. After that she – that day she said she was feeling uneasy and could I walk her to her car? After that she always parked her car in the front car park." (tp 1265) 19 She put this incident as occurring "one or two months before" the stabbing incident. She was not cross-examined about that evidence. 20 Since June 2003 (tp 230) the Appellant and Mrs Cvetkovic had been conducting Supreme Court litigation against their former employers. They were self-represented in that litigation until some time in the late May to early June 2007 period, no later than 1 June 2007. Then Mr Mark Diamond, solicitor, agreed to act for them on a pro bono basis, to seek to negotiate an end to the litigation on a basis that did not involve the Appellant and Mrs Cvetkovic paying any legal costs. 21 Hall J delivered a judgment in the Supreme Court proceedings on 30 May 2007. In a way not gone into in the evidence, it was adverse to the Appellant and Mrs Cvetkovic. In connection with those Supreme Court proceedings, the Appellant and Mrs Cvetkovic attended conferences with Mr Diamond on both 1 June 2007 and 4 June 2007. The Appellant agreed that before 4 June his belief about settlement of the civil litigation was 20-30% concern that it would not settle, and 70% hope that it would be settled (tp 1790). 22 After the conference on 1 June 2007 Mrs Cvetkovic and Alex accompanied the Appellant while he purchased a guitar, and Mrs Cvetkovic and Alex had dinner with the Appellant at the Opera Bar, then walked with him to Central Station. The next day he completed a sailing course. 23 Hall J's judgment fixed a directions hearing for the morning of Tuesday, 5 June 2007. The Appellant booked into a Travelodge hotel in central Sydney on Monday, 4 June 2007. His room was on the 14th floor. The initial booking was for only one day. However, it was extended, day by day, to the morning of 7 June 2007. The hotel booking confirmation form, which was in evidence, nominated the checkout time as "prior to 10.00am". When the Appellant left his hotel on the morning of 6 June 2007 he left various personal items, including clothes, in the hotel room. 24 Mr Diamond's efforts to settle the litigation of the Appellant and Mrs Cvetkovic without a costs order were unsuccessful. By 4 June 2007 the Appellant was aware that one of the defendants had not immediately returned an executed copy of a deed of release. At some stage on 5 or 6 June 2007 Mr Diamond told the Appellant that one of the defendants refused to settle the litigation without receiving some money. 25 For some months prior to the stabbing, the Appellant and Mrs Cvetkovic had been discussing what should be done about their matrimonial property affairs. On Monday, 4 June 2007 the Appellant and Mrs Cvetkovic discussed specific terms concerning how to deal with their matrimonial property. They provided for the Appellant to receive the Swansea Heads house, and for Mrs Cvetkovic to take out a loan for $250,000 and to pay that $250,000 to the Appellant. The Appellant later drafted on a computer a one-page document to give effect to that proposal. The draft included provision that Mrs Cvetkovic would be co-operative and proactive to finalise this agreement by the Friday, 08 June 2007." 26 On 6 June 2007 the Appellant rang Mrs Cvetkovic at her work and asked her to meet with him so that they could go to the bank to make arrangements in relation to the loan, and so that he could print out the form of agreement that he had drafted. Before the Appellant went to Mrs Cvetkovic's workplace he went to Chatswood, where he made enquiries about buying some shoes. He had with him at the time of his arrest the business card of a Chatswood shoe shop, and Mrs Cvetkovic agreed that he had told her, in the telephone conversation, that he was going to buy shoes. 27 The Appellant arrived at the building in which her workplace was located at about noon, and telephoned her to let her know that he was there. She met him outside the building, and he gave her a flash drive containing the draft agreement in electronic form. She left him outside the building while she went away to print it out. The Appellant telephoned her several times while she was engaged in the printing, and came upstairs to the Novogen reception area. 28 Novogen maintained a system whereby the receptionist kept a note of the time that people left the office and came back. That record showed that Mrs Cvetkovic left the office at 12.25. 29 She then drove him in their car to the Macquarie Shopping Centre, where the branch of the Commonwealth Bank with which they usually dealt was located. The Appellant was carrying with him a leather satchel bag. They went to McDonalds, and ate lunch. He endeavoured to persuade her to return to him, but she said, as she had said before, that the relationship was over. 30 They had returned to the car by 2.00pm. Mrs Cvetkovic sat in the driver's seat, the Appellant sat in the passenger seat. He placed the leather satchel at his feet. 31 The leather satchel contained the draft document that Mrs Cvetkovic had printed, various other documents, and a gyprock saw. The saw and the draft document were both in the back pocket of the satchel, which was its most accessible part. The gyprock saw had a handle like that of a knife, and a 20 centimetre-long blade with saw-like serrations along one edge of the blade. Those serrations were cut so that the saw was capable of cutting on an in-stroke, and also capable of cutting on an out-stroke. Though there were some differences of evidence about the precise sequence of events, it was common ground that the Appellant removed the saw from the satchel, and soon afterwards was stabbing Mrs Cvetkovic with it. 32 Screams coming from the car attracted the attention of various passers-by. Two of them independently telephoned the police. Ambulance authorities received a message to attend the scene at 2.10pm. 33 Though Mrs Cvetkovic was trying to get out of the car, she was impeded by her seat belt. The Appellant kept on striking at her with the saw blade, though she was twisting, endeavouring to protect herself with her hands, and pleading with him. She suffered injuries on the left shoulder, chest, back, neck and hands. The police officer who conducted a forensic investigation concerning the car did not observe any damage to the front driver's seat that could be consistent with cuts (tp 1592). 34 She ultimately managed to escape. Witnesses to the incident assisted her to lie down, and tried to stem her bleeding. 35 The Appellant remained in the passenger seat of the car. He used the knife to cut himself on the throat, on the chest and in the stomach. He then moved across to the driver's seat. The keys were still in the ignition. The Appellant started the car and revved the engine loudly for a time. When some sirens were audible nearby he set the car in motion, crashing into a golf buggy that shopping centre staff had deliberately placed in front of his vehicle to obstruct his path. 36 By that time, two police constables had arrived. One of them, Constable Roberts, drew his service pistol and pointed it at the Appellant and instructed him to stop. The vehicle did not stop: it continued towards Constable Roberts and hit him on the leg, causing him to lose his balance and fall towards a concrete pylon. It is this incident that formed the subject of the fourth charge. 37 The Appellant's vehicle then headed for the carpark exit, bumping into several vehicles on the way. Then it hit into the back of a vehicle that was blocking the way out from the carpark. Police and other bystanders were able to drag the Appellant from the vehicle. He was sprayed with capsicum spray, then arrested. 38 Then some ambulances arrived. One arrived around 2.22pm, another around 2.38pm. An ambulance officer assessed the Appellant by reference to the Glasgow Coma Score at 2.22, 2.37 and 2.49pm. On each occasion the officer rated the Appellant at 15 (indicating the highest level of consciousness on that scale). 39 Both the Appellant and Mrs Cvetkovic were taken to Royal North Shore Hospital. Hospital records show that Mrs Cvetkovic was admitted at 2:55pm. Both Mrs Cvetkovic and the Appellant were treated for their injuries. Mrs Cvetkovic's treatment involved surgery taking somewhat more than nine hours. 40 Police recorded an interview with the Appellant at Royal North Shore Hospital at 5.50pm on the same day as the stabbing. Sergeant Andrew Kable recorded the interview on a device called an ERISP machine, that recorded speech onto three audiocassettes simultaneously. Detective Senior Constable Morena Connell was present at the same time. She took handwritten notes as the Appellant spoke. She read those notes in court. They included an account of the Appellant being given the usual warning, and continued: "Sergeant Kable said 'Would you like to tell me anything about what occurred earlier today at the Macquarie Shopping Centre?' the Accused said 'Oh, undo my hands, what can I say, I cannot believe that this is happening, it's, I cut myself, my throat'. The accused said 'It was, what can I say'. The accused raised his arms to about 15 centimetres off the bed, his palms were facing upwards. The accused said 'I can only believe that this is happening, it's a nightmare just I can say'. The accused moved his hands upward again. Sergeant Kable said 'Can you remember what happened today?', the accused said 'I believe, yes. I met my wife at 12 o'clock to discuss court case, to discuss settlement us in relation to property. I then writ an agreement, conversation, I tried to sort out possibly to reunion with my wife. We had lunch, my wife told me that it's definitely over. I understood that I had lost everything, my daughter, my wife, why to live was my thought. I want everything to disappear, my wife's problems my problems. For the last eight years my wife, myself were trying to sort out problems we encountered during first years of marriage and all this was going through my head. Also about 11 o'clock today I was advised that defendant would ask for money so not only we had lost everything we shall be in – it was nothing to live for. I am really sorry that I caused a public disaster. I wish is didn't do this outside meaning". At 6.03pm the accused asked the nurse for a tissue. The nurse handed the accused a tissue. The accused said 'It was nothing to live. My was dropped the house so I wanted to cut pain and suffering that we exposed for years and terminate our lives. I do realise that this probably from someone else's perspective is wrong but I felt that this is only option for my life. I wish to ask these people to terminate my life'. He pointed at the nurse. 'That's all I wish to say'. (tp 825) (emphasis added) 41 Sergeant Kable gave evidence to substantially the same effect (tp 1292-1293). Sergeant Kable's evidence identified 6.06pm as the time that the recording ended. His evidence also included: "whilst speaking with the accused I note that his speech was quite slow and deliberate. He spoke with a strong accent and at times he spoke very softly making it difficult to hear him. He paused on many occasions whilst giving his answers. He did not make eye contact with Detective Barnes or myself. He appeared to be looking directly at the ceiling." (tp 1293) 42 As well as having evidence from these two police officers, the tape recording of the conversation was played to the jury, and the jury were given what was said to be a transcript of it. The transcript had been prepared by someone other than Sergeant Kable and Detective Connell, and omitted some words that they had noted. At the time the transcript was being distributed the judge said to the jury: "… when you see the transcript and when you listen to the recording you should keep in mind the transcript is someone's best effort at transcribing what they hear on the tape. … But if you notice any differences between what's on the recording and what's on the transcript then you should give preference to what you hear on the tape, because the tape is the best evidence and as I said sometimes when people make transcripts they leave things out or they might mis-record a work [word?]. So bear that in mind when listening to the audio." (tp 826) 43 Detective Connell gave evidence that at 8.30pm a nurse (who she named) told her and Sergeant Kable "he wants to speak to you". They went to the Appellant's bedside, with the ERISP machine. Her evidence continued: "The accused said 'No, turn don't machine on, it's got nothing to do with case'. The accused said 'Staying in Travel Lodge in Goulburn Street in Wentworth. The room number is 1418'. Sergeant Kable said 'How did you get there?' The accused said 'What do you mean?' Sergeant Kable said 'How did you get to Sydney?' The accused said 'By train, I've been staying for three days. I have extended for a few days, I have things to organise and get my things'. Sergeant Kable said 'Where you are?' The accused said '10 o'clock tomorrow, it was a bag of mine in the car, keys'. Sergeant Kable said 'Which car?' The accused said 'Mazda 626'. Sergeant Kable said 'Yes'. The accused said 'That's all'. Sergeant Kable said 'Whose care [sic] is it?' The accused said 'Mine, my wife was using the car since I lost my driver's licence'." (tp 828) 44 Sergeant Connell made notes of the conversation on a piece of paper. Those notes were tendered. Sergeant Kable also gave evidence of a conversation in substantially the same terms. It appears that the conversation was a request to retrieve his things from the hotel room before the checkout time at 10.00am on the following day. 45 The telephone that Mrs Cvetkovic used at work was connected to an answering machine that could record messages if she did not personally take a call. If a message was left on the machine, the machine contained both a recording of the message, and a note of the time at which the message was left. Two messages were recorded on the answering machine on 6 June 2007 before lunch. Detective Senior Constable Robyn Bartlett attended the Novogen offices on 7 June 2007. She listened to two messages on Mrs Cvetkovic's answering machine. Her evidence, on which she was not cross-examined, was: "The first message was a male voice, non-English speaking, recorded at 11:31am on the 6/6/07. The second call was from Bob Jennings, the Commonwealth Bank recorded at 12:08pm on 6/6/07." 46 She requested the IT manager of Novogen to save those messages. When police returned to the Novogen premises on 15 June, they found it was not possible to retrieve the messages. However, the company secretary, Mr Ron Eratt had recorded one of the messages on his mobile phone. Detective Senior Constable Connell gave evidence that Mr Eratt played that recording to her. She said that the message "was dated 6 June 2007 at 11.30am and was from a male person speaking in an eastern European language." She recorded it, from Mr Eratt's mobile phone, onto an ERISP machine. That same day, she played the message to Alex, who told her "That's my father, I can't understand some of it but he is talking about an interview." It was uncontroversial that, while the Appellant had been in Chatswood he had gone to the Commonwealth Bank and talked to an officer there about borrowing money, and someone from that branch of the bank was supposed to call him back (tp 523). Matters Not Common Ground Relationship Between Appellant and Mrs Cvetkovic 47 Mrs Cvetkovic gave evidence that the Appellant had been violent to her on occasions from the time when they were living in Sydney in 1998. 48 Mrs Cvetkovic gave evidence that after the move to Swansea the Appellant's violence to her increased: "Oh, became much, much, much, much worse. Suddenly he started, the, the violence was seem both in it, it, it, like it was more and more frequent. From being once a month having really severe occurrences, a severe beating and everything would happen suddenly. He started blaming me for everything, for the whole life, for losing jobs, for buying this house, for not being successful in, in, in our family business because we decided to have a private business when we move to Swansea so we have some finances. I was to be blamed, I just was everything, that I'm a bad mother, bad wife, bad person, everything was bad enough. And so he started, when, whenever he would feel pressured, whenever we couldn't get any project done it would be me to be punished, it would be me to be hit so, so, so he could relieve himself. There were occasions that I had to run from home, there were occasions that I had broken nose, broken ribs, he would hit me with his fists, he would kick me, he would throw me on the floor and then kick me and sometimes that, that, once he hold my hands and he hit me, my stomach so I had my broken ribs. He, he used whatever, he use chair to hit me, he took once a shower from, from garage, which is downstairs, he run downstairs, came upstairs and I didn't expect, he came hit my hit [sic: head?]. He threaten me, he said to me that one day he cut my face and no-one is going to look at me ugly, so bad that no-one would be looking at me anymore . He tried to strangle me, kept holding his hands and try to strangle me telling me that, and also holding my head and telling me I, like to, to turn the head and finish off with you. He, like, when we were being in the car driving he used to hit me in the car and then threaten that he can drive into, the car into the wall or off the cliff, kill both of us because he, he used to say that oh there is nothing, 'I haven't any, anything to lose anymore', he doesn't care, he didn't care. He used to say that one day he feel the police who would sort out, that I would ask for help from them because that's what he's going to do to me and I was really scared for my life. I always thought that, you know, if something, maybe the last moment that wouldn't happen, this scene wouldn't happen but did happen unfortunately. So—" (tp 40-1) (emphasis added) 49 She gave evidence of an occasion when there was an argument between the Appellant and Alex, about Alex wanting to have boyfriends. She said that when she intervened in the argument he hit her and broke her nose. Mrs Cvetkovic and Alex stayed at a women's refuge for five days, before returning home. She placed this incident as being in May 2001. The Appellant agreed there had been such an incident, but said her nose had been bleeding, but not broken. 50 She gave evidence of other instances of violence, and other instances when she had left home, but returned. Her evidence included: "… when I ran away from home and then when I was talking to him then he would say 'I know, you see, you know where you are. I'm just – I just want you to come but I know where you are I can just come now. Like, I know. I can check your payments where you pay your accommodation and …'." (tp 43) 51 Her evidence-in-chief included: "A. … he would hold my hand – my head tightly my jaws and like say 'It takes only a minute' and he will do this 'a minute and I'll finish off with you because, you know, how much does it take to break someone's neck?' Q. Just for the record as you've given that evidence you've put both your hands on your head. A. Yes. Q. On the side of your face. A. Yes. Q. And shown your head being moved. A. Yes. He would say like 'Just a minute now, just a minute and you're gone'. Q. Just for the record so it's on the transcript you moved your head to the side quite sharply with the hands. A. Yes. Q. And that's what you demonstrated. A. Yes. Q. That gripping of the face and saying that, is that something that happened once, or more than once? A. That happens more than once , and also happen that he would try to squeeze my neck as hard as he can that after then I will have bruises and sometimes I will than have pain in my throat here because of squeezing and that happened also many times." (tp 43-4) (emphasis added) 52 She gave evidence of an occasion in 2005 when he hit her repeatedly "with his belt all over my body and then my feet, mostly my feet", until they became swollen and black. Sometimes he used the buckle of the belt. She said: "… he would like start in the morning, early, and then in the afternoon, late afternoon and evening he'll give me something to eat, he'll give me something to drink and say 'Now go to bed asleep. I'm – like we are starting that again tomorrow morning'." (tp 46) She said that that continued for five days. It was this incident that was the subject of count 1 at the trial. 53 She gave evidence of another incident, later in 2005, when he hit her head and back in a street near Wentworth Park. Someone called the police. 54 She gave evidence about three incidents of violence after they had moved to Meadowbank. She gave evidence about an occasion, after they had visited Alex's place, when he was blaming her for various things that had gone wrong, and said, "I cannot stop thinking about strangling you". During the time at Meadowbank there was a period, she thought the last week of June and two weeks in July, when she moved out and lived with Alex. 55 In cross-examination, concerning remarks that the Appellant made to her when they were living at Meadowbank, Mrs Cvetkovic said: "Comments are related to me ruining every single piece of his life, me killing his parents, who died of old age in Yugoslavia, of me being the worst mother in this world, the worst wife, I ruined everything, business, everything. That's always the same story, the same accusations on and on. So they were not only related to what happened two days before, that's just my whole life, everything I ruined. That's what he said to me." (tp 201-202) 56 Alex gave evidence-in-chief that confirmed, though in much less detail than Mrs Cvetkovic's evidence, that there had been violence between her parents before the move to Swansea Heads and that after the move to Swansea Heads "there was increasing violence which increased in frequency over the time" (tp 547). Her evidence included: "Q. Well, no, you do actually, if you can recall words that were said, you've got to say what you recall being said. A. Okay, well he would call her a whore and a prostitute in Serbian of course. He would say that he would kill her and that the police would be involved and that she's garbage and that she's a dog and things like that. Q. In relation to things like that being said, are you able to say if it was once, more than once, if it was many times? A. It was definitely every single time there was an argument." (tp 548) (emphasis added) 57 She gave evidence that, after she had moved to Glebe in 2004, she returned home to Swansea maybe every second weekend. She said that on some of those visits there were incidents where she saw the Appellant hit Mrs Cvetkovic, and others she just heard arguments. 58 The Appellant's evidence accepted that there had been incidents of violence in the marriage. However, he denied that they had started as early as Mrs Cvetkovic and Alex said, denied that they occurred as frequently, denied the detail of the many of the incidents about which they had given evidence, and in particular specifically denied that he had ever threatened to kill his wife. Bad News From Mr Diamond 59 The Appellant gave evidence that it was on the morning of 6 June 2007, when the Appellant was travelling by bus from Chatswood to North Sydney, that Mr Diamond telephoned him with the news that one of the defendants in the Supreme Court litigation would not settle without receiving money. The Appellant said this news "was like sledge hammer in my head" (tp 1726). Mr Diamond was not sure whether it was on the 5th or the 6th that such a conversation occurred. His account of it was that there was one conversation in which Mr Diamond told the Appellant: "… that we'd hit a wall with Middleton's client and at that point I could not settle the matter the way you and your wife wanted, that we would have to keep trying and I would try to buy some more time for you in the Supreme Court." (tp 1823) 60 He gave evidence of a second conversation: "… about the same subject matter, my inability to convince the lawyers for the other pharmaceutical company to settle the matter and not expose you to costs." (tp 1823) 61 Mr Diamond said the Appellant's response to the second conversation was: "You were silent for a long time on the phone and I remember having to ask you whether you were still there and you said very quietly that you were and I said a couple more things to you about me getting back to you and you were silent again and then I rang off and I remember the silence very well. And in your second conversation with me, whenever that was, I remember you again being – I'm trying to think of the right word here but you were extremely quiet and your voice was very low, I remember that." (tp 1823) 62 Mrs Cvetkovic gave evidence: Q. When he met you at 12 o'clock, he told you that Mark Diamond from Ebsworth & Ebsworth had just called him advising that the second defendant wouldn't settle the case without money, is that right? A. No, that never happened." (tp 513) Circumstances of Stabbing 63 Mrs Cvetkovic's evidence was that about 10.00am on 6 June 2007 the Appellant telephoned her at work to say he was in Sydney and wanted to meet to discuss the property settlement urgently. Her evidence continued: "And I told him that well it's not that urgent maybe because we have to go to the bank so I should call the bank and see if we can get any appointment because the fact for me is that I have to see if I can get – how much money I can get and see the whole of my situation and if we need to sign anything then what had to do with the bank because if that is going to happen. But he just said that no we have to and he said he's going to Chatswood to buy shoes and then I said 'Okay, I'll call the bank and see if we can get any appointment today' because for me it's better to do it formally and properly than just – so we ended the conversation and then I called the bank because we usually go to Commonwealth Bank in Macquarie Shopping Centre so I called them. They couldn't have – they didn't have any time for us so I called him back telling him sorry, that I couldn't get an appointment and I think we should – the best thing is to have appointment with the bank and then we solve everything. But he didn't want, he just said 'No, it has to be – it cannot be delayed anymore, we have to do it now, we have to do it today'. And he said 'I'll come to your work' and then he said he had prepared the document and I knew that it was a document he was talking about how to put – what would happen if we come to an agreement then that would be our agreement." (tp 135-6) 64 Her account of the drive to Macquarie Shopping Centre was: "I parked right in front of the building because there are two spaces, parking spaces, in front and the back of the building and I parked at the time the front and he wasn't pleased with that. I just – we went to the car, he put the bag on the backseat, I put the paper, because I had this paper with me. I had the paper in my hand so I put also on the back seat and I was the one to drive. We went in the car and then he started 'Why did you park car in front? You usually do the back'. But I told him that it's dark and I feel more safe and the reason I changed was actually because I felt more safe in the front. I was afraid that he may turn up and on the back it's dark and the front is always with lights and would be people, a lot of people going home so I wouldn't be alone and I felt safe, so I said 'Well I feel safe to have car here'. And then I start reversing and then he – he was very angry and he started directing me how I should reverse and he said 'You changed absolutely – you changed and you changed everything', like me, how I look, I changed everything. And then became a little bit scary for me, I was very – felt very uneasy and I was shaking and I just told him 'Please, let me drive, just let me drive'. I wasn't sure, I didn't know I can continue driving so I just said 'Just let me drive'. So I drove--" (tp 136) 65 Mrs Cvetkovic's evidence about events at the shopping centre after parking the car was: "… then we decided because we didn't have an appointment so we decided we are going to have lunch and then after lunch we will go into the bank and see if we can talk to anyone. We went to McDonalds, that's where the food court is. There was a table in the corner I remember so we sat there and there was a lot of people there, kids and we were talking. I ate my food, he didn't eat much and he was just talking about the past and how he would want us to come – to get back together and then we shouldn't forget when we were students and all the good things that happened and – but I didn't want to talk about that, I kept saying to him that 'I don't want to talk about that. We are here to discuss this document and that's why I met you'. But at some stage he even took my hand and said 'Oh, hold my hand so remember when we were at uni'. It was so scary, so he's pulled out of my hand after maybe a minute or less, I just couldn't, my hands were sweating and I didn't – I did not – like I didn't want to talk about the past or anything because there wasn't us anymore. I just wanted to finish what he want – what he said that he want to talk to me and that's all, and go back to work. So we just like talking and talking on and on and on about the same thing and in the end we finished lunch and we left McDonalds and then he said that – I remember him saying that people that he called the bank when he was in Chatswood and he said that they are going to call him back, but they didn't so he decided 'Okay, that's enough, we are not going to the bank today' basically. So we continue walking towards car park. We came like the car, I was – like but at that stage I really felt I just wanted to go back to work and I didn't feel comfortable anymore and I was really tired and I said 'Oh, I'm so tired and I have to drive. I had enough today'. He offered to drive but I said no, I said because he doesn't have a licence, it was suspended, and the other thing that I was just thinking 'Woah, if he drives then he will be the one in control and he'll be driving the car and I wouldn't know what's going to happen'. I don't want to let myself without the – into his control because I know he tread on me so many times so I – so I said 'No". I was in driver's seat and he opened the door and then he's a tall man and he had his briefcase with him and he put briefcase in the front which he never does. Like he's always everything is on the backseat. He put it in the front seat, he tried to squeeze in. He sat in the bag, tried to squeeze his legs and because there is not much space. CROWN PROSECUTOR Q. When you say he put the bag in the front, whereabouts did he put it? A. He put it in front – in front of front seat, in front of his legs basically because he was in the seat and then the bag is in front of his knees, so it was like really not enough so he tried to squeeze the bag and I was looking thinking 'Why is he doing this? This has never like happened before'. But it didn't occur to me like what is going to happen, I just was surprised. So I put the belt and I wanted to start the car thinking this is time for me to go to work because we'd been at McDonalds for a while, an hour or more, just so I thought that 'Well this is time for me to go back'. I was just about to start the car and he says 'Oh, don't do this, don't start the car. We have to talk, we have to resolve our financial situation'. And I said 'Well, you know, I have to go to work' and then he kept – he kept asking me – I told him again that this – 'I can be friend to you, we are not going back so that's it. It's finished between us'. Then he asked me 'So what do you want to do with the house? Like it's not fair deal'. And I said "All I want is to have that house, to keep that house so Alex can have some security because you never know what can happen and it would be good for her to have something. He said yes, that's what he wanted. And then I started like – I remember the time – I was getting really nervous because I wanted to go back and I looked at the car – the clock, and I think it was two past two. I remember, you know, what I saw and I said "Oh, it's already 2 o'clock I really have to do – to go'. And he said 'God, give me a couple of more minutes, what's a couple of minutes compared with your whole life?' And I said 'Look if I don't go – like I want to go'. He said 'We must resolve our financial situation' and then I thought well if I don't go I can lose my job and my financial situation is going to be even worse so I wanted to go. And I said 'Oh, look I have to go'. And then we stopped talking because I didn't have anything else to say. I just wanted to go desperately. And then I saw him, he leant down, reaching towards his bag. And because the bag was standing so I could see the piece of paper that I gave him sticking out in the pocket and I thought because he was reaching his bag and I thought that he wants this piece of paper so I said 'Look, we can do this some other time. I really have to go. Like let's do it another time and sign and finish'. And then he turned towards me and then I just saw the knife blade coming towards my stomach and I – I just couldn't believe what was happen so I tried to stop and then I realised that this is happening; this is not like nothing that I'm dreaming, this is happening because then I felt – I tried to stop it and then I felt blood running from my neck on my top was a lot of blood and then I wanted to go out so I turned to open the door but I kept like this belt was here and I couldn't – I tried to let the belt off, I tried to open the door, I couldn't and whenever I would turn I could feel him like stabbing me, hitting me, hitting me in my back, like I could feel – and then – then I realised well that's not dreaming, that's like my life I'm going to end up like this, that's not happening. And I tried to protect myself because whichever way I turned, if I turned to open the door, if I turned to tell him to stop like he'll constantly – he'll continue hitting me so I try and hold the knife and – I remember trying to hold the knife away from my face, from my body, and I – at some stage I like was trying to open the door and I could feel his hand holding my hands for a short time and then he like, like my hand go – you do just hold tight and that's it. And then I turned again to him saying 'Please, stop this. If you want me I'm back'. Because at that stage I realised that what he was saying – like the reason – I don't want to die. I was almost ready to give up but then I thought I have my daughter and that's the only thing and I kept thinking about her and thinking that I have to live for her so that gave me kind of strength to go back and say 'Please, if you want me just – I'm back. Take me, I'm back'. Because I thought if he wants me he'll let me live, or he'll stop doing that. And then I remember that at some stage I saw someone coming towards the car and I could hear him 'Oi' or something 'Stop' or – and then I start screaming for help and I kept telling him 'Please stop. Please stop, we have our child. Just look please stop for our daughter. Stop this. Don't do this'. But he wasn't saying anything, he just kept hitting me all the time in the front and my back without saying anything and then I don't remember – I know I went – I got out the car but how I do not remember but I remember being out of the car and just a man coming and picking me up, helping me and he put me lying on the ground." (tp 137-139) 66 Her account of the Appellant's manner of speaking when they were in the car was: "Calm. He wasn't yelling, he wasn't argumentative, he was trying to talk to me normally as, you know, he appealed to resolve things, a little bit nervous and, pushy because he kept saying 'Now we have to separate' but this was conversation he wasn't yelling at me because if he started yelling I probably would run out before it happened but he was just talking to me." (tp 140) 67 Her evidence also included: "Q. Whereabouts was the knife when you first saw it? A. When I first saw it, it was in his hand going towards my stomach, so it was the height of, when he stood up with his hand because I was just watching, looking at him and he stood up and I could see the blade coming to my stomach, so that was then how I saw it. I tried to somehow push but, for me it was kind of something not real, I saw it but it didn't occur to my mind what's happening, it was just a blur. Q. As you've demonstrated that, you've shown yourself putting your two hands out with your-- A. Yes. Q. --fingers and palms facing upwards at about stomach height or rib height? A. Yes. Q. When you did that did you actually touch something, what did you do with your hands? A. Well I tried to push the knife and his hands to stop but then I, I use, I also did that after, after that happened when I tried to, to stop him from stabbing but at that time I literally caught blade so I have, I cut my, my hands and my fingers but I, I was holding the blade to just." (tp 141) 68 It also included: "Q. At any stage from when he'd first taken the knife out of that bag, do you recall if he said anything in the car? A. No, he didn't say anything because he wasn't talking at all, he was just hitting me. Q. Are you able to say anything in relation to how his facial expression appeared? A. Not much, I noted, I, I looked at him and was trying to stop him but just kind of nothing in particular that I would remember, just looked calm, like. And I, I tried actually, I tried not to be looking at his face and I tried to see where his hand with the knife is going so I can protect myself." (tp 159) 69 In cross-examination Mrs Cvetkovic confirmed that it was unusual for her to drive the car with her husband as passenger, "… [W]henever I drop him, whenever I would drop him off he could never ever put things in front of his legs, he's taller and there is no place. He usually puts things on the back of the seat even when I drive him." (tp 525) 70 She confirmed the correctness of a statement that she had made in her police statement: "Dragan was not saying a word, Dragan just continued to try and stab me. Dragan was stabbing me which ever way I was facing." 71 She also confirmed the correctness of a statement that she had made in an affidavit to the Family Court: "Mr Cvetkovic reached for his briefcase and pulled out what appeared to be a 20 inch serrated knife. I froze in terror, it was surreal. Mr Cvetkovic then drove the knife into my stomach. He remained silent the entire time. He then slashed my neck with the knife horizontally across my throat and then started to repeatedly stab me on my upper left breast and my upper left shoulder. I tried to grab the knife from Mr Cvetkovic with my hands." (tp 531) 72 She rejected a suggestion put to her that she touched the blade before she had sustained any injury (tp 535). 73 Another portion of her evidence was: "Q. … In your statement and the affidavit, as well as in your oral evidence to this court, you left out the faze [sic] when your husband had both his legs up and was kicking you, didn't you? A. Because I don't remember if that happened at all, that he was kicking me with his legs up." 74 By comparison with the elaborate cross-examination that had taken place concerning collateral matters relating to the general credibility of Mrs Cvetkovic, and the circumstances of the incident that was the subject of the first charge, the cross-examination of Mrs Cvetkovic concerning the events at Macquarie Shopping Centre on 6 June 2007 was extremely brief. 75 The Appellant's evidence was that on the evening of 4 June, after a meeting in which Mr Diamond told the Appellant that he had not received a deed of release from the second defendant in the civil action, he went back to his hotel room, and contemplated jumping from the window. His evidence was that he had contemplated suicide the previous May, by taking sleeping tablets, and had procured the tablets, but did not carry the plan through. His evidence about the evening of 4 June was: "Even if I could open the window I wouldn't dare to jump. So I went back to bed and I continued thinking I should go the next morning to Ashfield and buy a tool to open the window. I could have smashed the window with a chair, I could have jumped from anywhere, the point being, and my feeling and it was not to end life, but to ease or to release the pressure that I was feeling at that particular time. So in the morning I went to Ashfield, my going to Ashfield, whether that was going to Ashfield or whether that was new morning or new day, it released the pressure, but since I was anyway in the Ashfield I went in the shop, into Bunnings, and I didn't have clear idea what to buy. I went around looked several things, and on my way out from the tool section it was a table selling cheap things, or on sale things, and I found out this device, it was in quite large box with window. I thought that would do, I thought even that I could stab myself. But again, that was neither my focus was on opening the window, neither my focus was on using that knife. Probably one of the reasons why I bought that tool was that it was cheap, it was less than $10 if I could remember, $7, $8." (tp 1724) 76 He agreed his sole purpose in going to Ashfield on 5 June was to buy a tool (tp 1788). 77 His account of the immediate circumstances of the stabbing was: "At that time, when she was to start the car, I asked her to stay, not to go. I ask her I hoped that I would be able to say something more and to probably change something. She said that she has to go, she said that she cannot stay any longer and for a while both of us were quiet. The representation that at that time she said to me that she would go – she would sign document and that was representation that basically was during the lunch time. But it didn't matter. But I was not finding what else to say, simply all I had I told my wife and at that time the document, that agreement, was protruding a little bit from the back pocket and I wanted to take the document and just to reinstate conversation to have something to talk about and probably that last link about that property which was issue from February. I hoped that it would keep our conversation or keep our relationship or whatever. At the time when I went to the bag I saw the knife behind the document. I pushed the pocket open and I took the knife. That was something that happened in that second, second going for that document, second seeing the knife and getting idea to tell her why I got the knife and probably to use this as a further argument to either maintain or to get sympathy – maintain the relationship or get sympathy from her or – and when I took that knife, the knife I was holding in my left hand, the blade was pointing upwards, it was close to me. It never went towards Sladjana. I did not make any movement with that knife, it was just like this, that was all. It was a second or two from the time that I took the knife to the time that she grabbed for the knife. And the last what I remember, the last feeling, the last impression that I was trying, it is not fear, it is not, it is a feeling of, there is no word that I can find in English. It is something when, when it happens, it, you, you have that reaction, you're stuck or you're, and I remember her firmly holding for the knife. That is last what I remember. I remember the next thing is huge pressure on my back and it was on the right-hand side, me having difficulties to breathe, I tried to move, I couldn't. I remember someone saying to me not to move that I slashed my throat and all the sudden I got images of my wife and I sitting in the car, me having the knife, my wife grabbing the knife and I was, that is a feeling of I should run, run, that is the feeling that I, I can describe." 78 In cross-examination he gave a somewhat more detailed account of events immediately after he had taken the knife from the bag: "Q. So your wife is on your right hand side in the motor vehicle, you're saying you're holding the knife in your left hand-- A. Yes. Q. --right in front of your left arm. A. Yes. Q. Your wife has reached across-- A. Facing-- Q. --from the driver's seat to that knife and grabbed it; is that what you're telling this court? A. Facing my wife with the knife, my wife being 40, 50 centimetre or how – that is the position of the knife, that is the position of my wife so the – or it is shorter even if you think the seats are 10 centimetres away, my wife sitting here, the knife sitting here, that would be probably between my wife and the knife 60 centimetres. Q. So are you telling the jury that you're not sitting straight in your seat you've turned and angled towards your wife in the car; is that what you're saying? You've got to stay near the microphone; is that what you're saying, yes or no? A. Taking the bag was aside my left leg, left knee. I went to the bag, I took and I turned, that was all. And the distance in the car you can imagine so the whole from the bag that was probably distance of half a metre and that is all." (tp 1801) 79 He said again that the last thing he remembered was his wife grabbing for the knife, "grabbing and holding it firmly" (tp 1802). 80 Concerning his interview with police on the afternoon of the stabbing, he said: "… from that interview I know bits and pieces. What I expressed to them was what I believed at that time was happened. What I expressed to them was either my belief or my fear that this had happened. I knew that I was suicidal, I knew why I bought the knife, or one of the reasons why I bought that knife, although at that time it was, I would never say that I would be ever in my life to, to harm myself in that way. I am the person that I would use poison, I am the person that I would use drugs to kill myself but I would never use knife or anything similar. And when I said about sleeping tablets and taking sleeping tablets and going for drowning the reason was that I would be sedated and easily accept going for swimming and drowning. So my, what I told to police and what is in that interview, it is the state of mind that was at that time, which is also relevant and that would solve one issue in these proceedings, was about me and my ability to understand whether harming anyone was right or wrong. To the very point of the incident, and to the very point after I, I regained my consciousness when I was at the floor there was no doubt that to harm anyone was wrong. It was wrong to think it was, it was wrong to do, so it was not something that could be ascribed to depression or to the fact of my thinking or the fact of my thought. Since that day, in my memory I had gape [sic: gap?] for the whole day after the incident." (tp 1728) 81 His evidence also included the following passages: "During that time in hospital I had few flashbacks from the, from the incident itself. One of flashbacks was my wife rushing out of the car, the other one was me seeing white skin of my stomach. … my wife's grabbing for the knife and screaming, I wouldn't describe as causing me fear or any type of emotion that would be equivalent to what now I would consider as appropriate emotion seeing someone grabbing with a bare hand for the blade and that was the puzzle from the – for all these two years for me. In the hospital, as I said, I had, and that is the only memory that I have of that event, is her rushing out of the car and me then seeing white skin of my stomach then in the car leaving and a policeman pointing with the gun at me and me crashing. Then they spraying me and these are memories that I get – I got in terms of flashbacks during that hospitalisation in the Royal North Shore Hospital and then later on whilst being in the hospital in prison in D ward." (tp 1729) 82 He said he only learnt about the extent of his wife's injuries by being told it when he was in the prison hospital. 83 The Appellant said unequivocally: "I never intended to harm my wife. I never intended, or I never consider before the incident any downturn in my life or anything that would affect my life detrimentally, even that purchase of that, that knife or too I did this as a, as an awkward way of dealing with the stress and feeling self-pity, you could say I was seeking attention, if not from anyone else, but from myself." GROUND 1 – CONVICTION UNREASONABLE OR UNSUPPORTED BY EVIDENCE 84 The first ground of appeal is that the verdict of the jury was unreasonable or unsupported by the evidence. The Appellant submits that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the Appellant was guilty: M v R (1994) 181 CLR 487 at 493. 85 The Appellant divides the ground into two sub-grounds Ground 1(A) – Charge Not Proved Beyond Reasonable Doubt 86 The first sub-ground is that the verdict of the jury was unreasonable or unsupported by the evidence because the prosecution has not proved its case beyond reasonable doubt. The principles an appellate court applies in deciding such a ground have recently been reiterated in Ha v The Queen [2010] NSWCCA 83 at [50] by Beazley JA, with whom Howie and Hislop JJ agreed: "The test to be applied by an appellate court in deciding whether a verdict of guilt is unreasonable was stated by the High Court in M v R [1994] HCA 63; 181 CLR 487. The High Court reiterated the test in MFA v R [2002] HCA 53; 213 CLR 606 where McHugh, Gummow and Kirby JJ said, at 623 [56]: 'The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred: "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."" (citations omitted) 87 The Appellant submits that the jury was unreasonable because the Crown has not negatived the possibility that the Appellant was acting involuntarily as a result of a mental state, namely dissociation, which may be experienced by a healthy mind. He further submits that the Crown has not negatived the hypothesis that holding the knife in the left hand, when he was right handed, is inconsistent with evidence of an intention to harm. He submits that that inconsistency is sufficient to displace the inference of intention to harm which ordinary human experience might otherwise draw from the events themselves. 88 The legal test implicit in the preceding sentence is derived from the statement of Deane and Dawson JJ in The Queen v Falconer (1990) 171 CLR 30 at 61: "The onus of proving guilt remains with the prosecution and that onus is not discharged if an accused is able to raise a reasonable doubt. Of course, common experience teaches us that a person's will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstance that an accused's acts occurred independently of the exercise of his will or to raise a doubt whether that was so. It is sometimes said in that situation that the accused is required to rebut an evidentiary presumption or to discharge an evidentiary burden of proof, but it is merely a requirement that there be evidence to displace ordinary human experience. And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised." 89 Similarly, in Falconer at 41 Mason CJ, Brennan and McHugh JJ quoted with approval the statement of Lord Denning in Bratty v Attorney General (Northern Ireland) [1963] AC 386 at 413: "… whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred ... The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity." 90 Gaudron J in Falconer at 83 quoted the last two sentences of that extract, again with evident approval. 91 Gaudron J at 83 said: "In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state." 92 At 83 her Honour also said: "And again in practical terms, because what is postulated is, of its nature, extraordinary, the evidence must be very persuasive even to raise involuntariness as a reasonable hypothesis such that a jury could find that the prosecution had failed to prove beyond reasonable doubt that the will of the accused accompanied the act charged." 93 In light of those statements of principle, the psychiatric evidence in the present case is of particular importance in deciding whether the jury ought not have been satisfied beyond reasonable doubt that the actions of the Appellant were voluntary. In my view, the psychiatric evidence provides no basis for the jury to have had a reasonable doubt about whether the stabbing was a willed act. 94 As well as the inference that would ordinarily be drawn that a person's conduct was the product of his will, there was other material from which the jury could infer that the Appellant's stabbing was a willed act. It includes the history of disintegration of the relationship between the Appellant and Mrs Cvetkovic, the imminence of the return date of Mrs Cvetkovic's application for divorce, the presence of the gyprock saw in this briefcase and the unusual story that he told about how it came to be there (the more unusual in light of his own evidence that even if he could open the window in his hotel room he wouldn't dare to jump), the evidence about his conduct during the course of the stabbing, and the statement he made to the police on the afternoon of the stabbing. Dr Westmore's Evidence 95 Dr Bruce Westmore is a psychiatrist who first examined the Appellant on 5 September 2007, and again in September 2008. He produced reports in September and October 2007, following the September 2007 consultation, and another following the September 2008 consultation. At the trial he was called by the Appellant. 96 Dr Westmore's account of the history he was given in September 2007 included: "At the time of the incident he told me he was in the car with his wife, he reached into his bag to get the document. The saw was in the bag. He said he then went to show his wife the saw and to tell her that he was going to kill herself [sic]. He said his wife grabbed the blade with her hand, he fought to get it out of her hand and she started to scream. He said 'I started to stab her'. I asked him was he angry with her at the time and he said 'No, not at all.'" (tp 1830) 97 After a review of available medical records relating to the Appellant, Dr Westmore's conclusion, in October 2007, was that the Appellant had a defence of mental illness, because he: "… suffered a depressive illness, probably a major depression, prior to the incident. He may have had paranoid or persecutory ideas towards previous employers but it is uncertain whether these arose from a paranoid personality structure or from his depression. Nevertheless, a history of depression pre-dating the incident with his wife by several weeks or months is consistently given and immediately after the incident he was diagnosed with depression, and later with melancholic depression with psychotic symptoms. Based on the history provided by Mr Cvetkovic and with the additional material I am of the view that Mr Cvetkovic, on the balance of probabilities, suffered from a major depressive illness at the time the incident occurred. This is a mental illness which would have, on the balance of probability, totally deprived him of the capacity to know that he ought not to do the act. He would have been deprived of the capacity to be able to rationally consider his behaviour towards the victim, probably at the time of the incident both in a moral and legal sense. I believe that the defence of mental illness should be raised on behalf of Mr Cvetkovic on the basis that he was suffering from a major depressive illness at the time he stabbed his wife." (tp 1849) That report made no reference to automatism. 98 Dr Westmore, who has more than 20 years of experience in psychiatry in relation to criminal proceedings said that it was likely that if he had seen any evidence consistent with the Appellant being in an automated state, he would have referred to it in his report (tp 1845). 99 In September 2008 the Appellant raised with Dr Westmore the issue of automatism, and suggested that he was in a state of automatism at the time he stabbed his wife (tp 1827). It was open to the jury to take into account that the suggestion of automatism came from the Appellant himself, and at a time that was of the order of 15 months after the stabbing. 100 Dr Westmore's 2008 report said, concerning dissociation: "Patients who suffer symptoms of dissociation frequently have recurrent symptoms of that type and unless there is a severe or specific trauma or some other significant trigger which might explain a single episode, it would be rare for a person to suffer one episode only in the absence of some other condition being present, such as an acute stress disorder." (tp 1831) The relevance of that remark was that there was no suggestion in any evidence at the trial that the Appellant had ever previously experienced a dissociative state. 101 In cross-examination Dr Westmore agreed with the proposition that "it was not your opinion that automatism was in any way relevant in this matter". 102 The prosecutor took Dr Westmore in cross-examination to the history that the Appellant gave him, that Mrs Cvetkovic started to scream and the Appellant started to stab her. His evidence continued: "Q. So from what he was telling you did you believe that he actually remembered the starting to stab her? A. I believed it at that point and that is one of the reasons why I didn't raise the issue of automatism or dissociation. He gave me a history at another time where he said later he had some flashbacks of the stabbing which might suggest any number of possible things from a psychiatric perspective but maybe that his memory was not as clear. But certainly when I took that history I thought he had recollection of it. Q. That history was taken on 5 September 2007, so three months after the day of the stabbing, just under three months after? A. Yes. Q. Doctor, is it the situation that you were not of the opinion that he was in a state of automatism at the time he stabbed his wife? A. That was my view, yes. Q. Was it the situation that the only time that automatism was raised was the fact that he said that he thought he was in a state of automatism? A. That's correct. Can I just add for completeness it is possible – I don't believe he suffered a pure state of automatism, automatism is a complex psychological condition and people act in certain ways, and simple ways or complex ways. When they act in complex ways, very repeated goal directed purposeful tasks, it's usually behaviours that they're very familiar with, that they've done many times before such as driving a – you're meant to be driving from Brisbane to Melbourne but you finish up in Perth and you don't know how you got there and why you got there but you had no accidents and you obeyed all the rules. When people have – that's a complex act. When people have simple acts in these states it's more directionless and less purposeless and others identify them as having something wrong with them. I didn't think he had automatism in the true sense; it is quite possible, though, that during the stabbing, which was multiple, there was an automatic component to it, a repetitive automatic component to it, not necessarily thinking each time a blow was struck. That's automatic but it's not a true automatism. I've also indicated in the third report that it is also possible during the stabbing that he may have had some degree of dissociation, that's not uncommon for victims and for perpetrators of severe aggressive acts, they become – their awareness of their environment gets altered because of the overwhelming nature of the trauma. So there may have been some automatic behaviour and there may have been a degree of dissociation during it, but I don't believe that is what precipitated it or was the cause of it." (tp 1886) 103 Dr Westmore said: "Mr Cvetkovic, as you're aware, is most unhappy with the evidence that I'm giving today, he does not want to hear my evidence, he does not want it presented to this court or this jury. He, for whatever reason, has chosen not to have the issue of mental illness raised ..." (tp 1887) 104 The prosecutor failed in all her attempts in cross-examination to persuade Dr Westmore to retreat from his opinion that the Appellant had been suffering from a mental illness that deprived him of the capacity to know that his action was morally wrong. It is unnecessary to recount those attempts, or Dr Westmore's reasons for rebuffing them. That is because the jury did not accept that a defence of mental illness had been made out, and the Appellant does not, on this appeal, submit that the jury were wrong in that respect. 105 In re-examination, Dr Westmore said: "Q. In terms of the symptoms of dissociation and automatism, could you tell us which symptoms would you expect in a patient? A. Yes. I briefly mentioned automatism earlier today. Both states are characterised by an altered awareness of one's environment. Automatism is defined as acting without conscious thought, so people act in a certain way without being aware that they're acting in such a way, and it can be complex or it can be simple; and as I've said the complex is usually a behaviour that the individual is very familiar with and they do it automatically without being aware. People have been said to have played concert concertos without knowing that they've done it and done it without fault. At the other end of the spectrum you get people behaving in a very simple and disorganised way and it's obvious to most people that there's something wrong with those people. When they come out of that state they don't have any awareness of what they were doing at the time. But they rarely act in a purposeful, goal directed way, it's a very disorganised behaviour. Dissociation refers to also an altered state of consciousness, the words used in many different ways in psychiatry, it's a condition, it's a symptom, it's a defence mechanism. In this case, the relevance is as a symptom. I don't believe you qualify for one of the dissociative states as defined in the DSM4, which is the diagnostic manual for psychiatrists. But as I said earlier to the Crown, it's not uncommon for people involved in very traumatic incidences to have a period of, some period of dissociation, that is during the period, the episode, they cannot recall and they are not aware of all the things that are happening to them. You see it commonly in victims but also in the perpetrators of aggressive acts. And it's probably a reaction of the body to try to block out some of the trauma and during that period people's memories might be partially impaired or sometimes totally impaired and they might act in a way when they're not fully conscious of what they're doing." (tp 1898) 106 When asked whether the Appellant kicking his wife and at the same time using his arm or hands to attack his wife was indicative of disorganised behaviour Dr Westmore said: "Well I can't say that on that description. I mean kicking and using arms to attack might be in a very coordinated fashion." (tp 1900) Dr Nielssen's Evidence 107 Dr Olav Nielssen is a psychiatrist called by the Crown. He was provided with two reports prepared by Dr Westmore in 2007, the various witness statements and medical records, and interviewed the Appellant in May 2008. His account of the history included: "… he pulled out the knife with his left hand while looking for some papers, and when he did so, his wife screamed and only then did he start to stab her. (tp 1524) 108 One of Dr Nielssen's conclusions was: "… it didn't seem that the symptoms of Mr Cvetkovic's illness affected his awareness of the moral wrongfulness of stabbing his wife. The main area where it may have affected him is in his capacity to control an impulse." (tp 1531) 109 His opinion dealing with automatism was: "A. … the situation described by Mr Cvetkovic didn't seem to, to be a state of automatism in the sense that the, the attack was quite purposeful and it was triggered by, by events which there seemed to be a sort of logical in him, from his point of view, relationship between what happened immediately beforehand and what he did. Secondly, he described a, a fairly complete memory of what happened which again is inconsistent with a complete lack of awareness and it did look as though it was in some ways planned, depending on whether one accepts that the, the weapon was in the bag with that possibility. Q. If the jury accepts the evidence of Sladjana Cvetkovic that the accused removed the knife from his bag and immediately went and attacked her in the stomach, stabbed her in the stomach at that stage, given that that is not the factual scenario that the accused says occurred, if they accept that he immediately stabbed her would that have any impact on this claim of automatism? A. Well, yes, the action would seem to be quite purposeful and also pre-planned which didn't seem to be consistent with automatism. For example, people's actions during epileptic seizures, which can sometimes be violent, are generally quite purposeless. Q. In relation to the fact that he suggests he's got a lack of memory of some of the episode but he seems to give a fairly detailed account to the police as to his thought process and his justification, would that appear to be consistent or inconsistent with the lack of memory that he says he has now? A. Well again I didn't elicit a lack of memory other than a transient lack of memory of some parts of the assault. And likewise, the account that he's given to Westmore is fairly consistent with my own, although there was a slight difference in terms of the sequence, but it could be due to the way the histories were taken. So it seemed that he did actually have a, a memory of the events." (tp 1538) 110 His report had expressed a view: "Firstly I do not accept that his actions were not under voluntary control as the attack was purposeful and apparently premeditated. However, any loss of voluntary control would have been at least partially due to the effect of an underlying depressive illness and would hence be considered as an insane automatism." 111 When cross-examined on that topic Dr Nielssen rejected a suggestion that it was disputable whether depression could cause an automatic state. He accepted it was possible for a single episode of depression to give rise to a dissociative state: "A. … but you would certainly be suspicious of a person reporting an episode of dissociation when they have done something wrong and they were being held accountable for it, and they had never reported a similar experience before. Q. Yes, so in case of depression being cause for dissociation and automatism in that case you would expect recurrent or repeated onsets? A. Yes, you would expect some previous account of it, and also you would expect an account of amnesia which wasn't the case here either." (tp 1541) As mentioned earlier, there was no evidence that the Appellant had previously experienced a dissociative state. 112 Dr Nielssen agreed that it was unlikely in the Appellant's case that depression caused dissociation and automatism. As to the suggestion that dissociation and automatism can be caused by an accumulation of stresses, he said: "… where there had been pre-existing trauma as well as the traumatic, the bad news, typically as I understand it there is the moment of bad news and then there is the instantaneous loss of awareness, that is how I understand it, not a cumulative effect of a serious of blow[s]." (tp 1541-1542) 113 As to whether the news that one of the defendants would not settle the civil litigation, received just a few hours before the incident, was the psychological blow that could trigger automatism, Dr Nielssen said: "I certainly accept the news of imminent financial ruin, if you like, would be an example of a psychological blow that could affect a person's mental state immediately on hearing that news." Because of the word "immediately" , that evidence is not supportive of the theory that bad news from Mr Diamond, even if it was as recent as a couple of hours before the stabbing, could be the psychological blow that triggered automatism. 114 The Appellant cross-examined Dr Nielssen about whether Mrs Cvetkovic's reaching for the knife and grabbing the blade could trigger automatism: "Q. Would you agree that that event of my wife coming for the knife could raise any of these state of minds or feelings? A. Well not necessarily, I mean it would seem a rational response really to see someone pull out a knife that you have been in conflict with, and it would be an understandable response so your job would have been to reassure her. Q. I haven't understand that. A. No I don't agree that it is necessarily a shock that would trigger some kind of loss of self control, I don't agree with that. (tp 1544) … Q. What is the ground for your opinion that me seeing my wife grabbing for the blade wouldn't cause or wouldn't be perceived as a dreadful and sudden shock? A. Well it is a common place event, it is not, the history that you gave me was that it was pulled out of the bag by accident while you were rummaging in the bag for something else, and it wasn't necessarily an event that would cause you to be shocked, more that you should notice your mistake." (tp 1545) … Q. I, I mean, if you would focus only on my state of mind and when I say perceived as a dreadful and sudden shock it, it, it will be my perception. But my perception of my wife grabbing for the knife could be reasonably be expected to elicit a shock. Would you agree? A. No, I don't think that's an example of the kind of psychological blow that's been described in these situations. Perhaps a more, a more likely example from the scenario was her telling you that the relationship was over, that could have been the kind of shock that might have produced that loss of self-control, but the scenario you're putting to me doesn't sound like the kind of shock that would result in loss of self-control." (tp 1546) 115 The Appellant put to Dr Nielssen that his actions in buying the guitar, and completing the sailing course, were not activities he would have engaged in "if I wanted or expected something bad to happen". Dr Nielssen replied "certainly at the time you performed the activities, yes." The Appellant put to Dr Nielssen that his activities on the day of the incident, of extending his hotel booking for another day, and visiting the Commonwealth Bank were: "Q. … activities I wouldn't have needed if anything was bad in my mind or anything that was wrong in my mind or if I was depressed or if I was in any way with guilty mind? A. Yes. I can't answer that. I have to leave that to you to answer what was on in your mind, except you did tell me that you did also plan to open the window of the hotel room to jump out of it, so it seems that there was two kinds of thoughts." (tp 1560) 116 The Appellant suggested to Dr Nielssen that in a major dissociative state a person can appear to be acting normally. Dr Nielssen replied: "A. Not typically. Not typically. There's normally a detached expression and a, and impaired performance. Certainly in epileptic states the behaviours usually quite purposeless and-- Q. You indicated that a football player played the whole match, so he might certainly be acting normally? A. I think the usual situation after concussion is they don't play quite as well. Q. I suggest to you that in a classical, in a, in a classical dissociative state a person can be acting normally? A. No. Well my, as far as I'm aware that's not the case." (tp 1566) 117 He also gave evidence about other symptoms of dissociative state: "Q. And when recovering from an automatic state, a person might look as if he had shock? A. Yes. Q. He might be staring? A. Yes. Q. Have complete or partial loss of memory? A. Yes, usually complete. Q. And the memory may be recovered later on? A. No. Q. I suggest to you that the memory can be recovered later on based on medication or spontaneously? A. That's not my, that's not my opinion." (tp 1567) 118 The Appellant put to Dr Nielssen aspects of his own behaviour at the time of the stabbing: "Q. If I were in a dissociative state and automatic state, what would you expect to see in my actions? If I could help, would you expect me to speak, shout, or be quiet? A. Typically be quiet. … Q. If there would be evidence from another witness that at this stage of the incident, I had my legs up and was kicking the victim and concurrently using my hands to attack without saying a word, would that be evidence of purposeless behaviour? A. It sounds like a purposeful assault actually, I can't really comment on whether that is purposeless or not." (tp 1574) 119 Ms Hayes was one of the eyewitnesses to the attack. When her observations of the manner in which the attack was conducted were put to him, in which the Appellant had at least one leg up during the seconds she observed it (see [126] below), the Appellant suggested that this showed it was a "purposeless action". Dr Nielssen's response was: "A. It sounds like a frenzied attack to me, using all available mechanisms of attack. Q. So at least it wouldn't be rational; would you agree? A. Well, it may not be the most efficient way of conducting an attack like that, but that's what it sounds like. Q. It sounds irrational, would you agree? A. It sounds inefficient is what I said." (tp 1575) 120 When one aspect of Mrs Cvetkovic's account of the manner in which the attack was conducted was put to him, his evidence was: "Q. Does it say anything to you about the manner and the behaviour? A. It sounds like a frenzied attack. Q. When you say frenzied attack, what do you mean by this? A. Attack with, by a person in a rage or determined to cause the most harm. Q. Does lack of any verbal expression have any meaning to you during that alleged frenzied attack? A. No. It's not uncommon in serious violence for people not to speak but just to act. It's also not uncommon not to have any memory of the attack either." (tp 1581) 121 When another aspect of her evidence about the manner in which the attack was conducted was put to him, his evidence was: "Q. Does this sound to you as directional and purposeful or organised? A. It sounds frenzied. It's, it's, the purpose is clear, which is to harm the person who is being stabbed. Q. So you believe that this attack was purposeful and the aim was to harm? A. Yes." (tp 1581) 122 The Appellant attempted a summary question: "Q. Taking all evidence together, including my wife indicating that I was holding knife in left hand, the evidence about legs up phase and how my wife described, whether that is more likely to be intention to harm or acting in an, without awareness? A. Well generally I'd infer the intention from the actions, so by stabbing, if you act by stabbing someone well then I'd infer that you intended to harm them and if it's done efficiently or inefficiently that's a different sort of question." (tp 1581) The end result is that Dr Nielssen did not agree that the attack had been conducted in a state of automatism. Dr Hay's Evidence 123 The Crown called Dr Jayne Hay. She is a psychiatrist who at the relevant time worked with Justice Health, and examined the Appellant on 12 June 2007. Her evidence was confined to the history she received from the Appellant, and her opinion about his mental state at the time she examined him. The history he gave her, and that she recounted to the jury, included an exculpatory statement: "Denied he intended to harm his wife, states she grabbed at the knife, plus did not intend to do self-harm in front of her but finds it difficult to explain how this came about." 124 No other part of her evidence bore upon the Appellant's state of mind at the time of the attack. Reasonable Doubt from Various Symptoms of Automatism? 125 The Appellant elicited from Dr Nielssen agreement that if the Appellant was "not aware of his action or was not purposely directing his actions, his behaviour would tend to be disorganised and random", and that "if a person is not aware of his actions, he wouldn't be highly directional". Dr Nielssen also agreed that in a dissociated state there is normally a detached expression, impaired performance, less eye contact, less emotional expression, a lack of communication, and a slowness to respond or a lack of responsiveness. The Appellant draws our attention to evidence of eyewitnesses concerning the manner in which he acted during the stabbing and shortly afterwards. He submits that those descriptions match the various indicia of dissociation and automatism that I have just listed. 126 Ms Hayes gave evidence: "A. … she had her arms up in front of her face and defending herself, and he had I am not sure if it was one or two legs up kicking her and also attacking her with his hands, but I couldn't see if he had anything in his hand or what but he was attacking yeah her with his hands and at least one leg. Q. If I can just ask you in relation to the legs, did you see if he was connecting with her, what did you actually see happening? A. It was happening very quickly, his hands were hitting towards her neck and his legs I think were hitting her arm that was closest to him and she was trying to push him off with her arms." 127 The Appellant submitted that this was symptomatic of disorganised and random behaviour. However, the other eyewitnesses, Mr Shear, Mr Homburg, Mr Thow and Mr Henderson, gave evidence that they did not see the Appellant's doing anything with his legs at any time. Mr Henderson's evidence in chief included: "A. … I, I think, I remember that he had one leg sort of out, outside his, his door was open, the passenger's door was open and he had one foot on, actually hanging out of the car. But what I could see is he was wearing like a, I could see his pants because he was sort of arching back over the seat and I think he was wearing like a sort of maybe pale coloured, cream coloured pants. Q. Sorry, can you explain. When you say arching back over the seat can you explain what you mean about that? A. Well he, he was trying to, he was sort of, if I can demonstrate, he was sort of up like this and he was obviously gripping the lady and he was like this here and I could see-- Q. Now just to try to explain that for the record, you've-- A. Yeah. Q. --sort of put the man stretching-- A. Yeah, stretching, yeah, yeah. Q. --so he was as tall as he could be within the seat? A. Yes, yeah. Yeah." 128 The Appellant submits that the use of his legs was more suggestive of a purposeless act rather than of goal oriented behaviour. The Appellant also points to evidence from eyewitnesses of the somewhat uncoordinated nature of the blows. One described them as "all over the place", another said "at least a half of the stabbing motions missed the victim". He relies upon the varied parts of Mrs Cvetkovic's body that were cut as confirmatory of the disorganised nature of the attack. 129 However, it was a matter for the jury whether they regarded these features of less than perfect efficiency in the way the attack was carried out as indicative of either a lack of intent to murder, or of dissociation and automatism. As well, the jury could take into account that the attack was apparently not so random as to result in any cuts to the front driver's seat (see [33] above). 130 The Appellant also relies upon the fact that he said nothing during the attack, and had a calm facial expression, as indicative of dissociation. He relies upon an incident that occurred after he had stabbed himself, and was still sitting in the car, when Mr Sciancalepore, a security guard at the shopping centre, approached the car with a battery pack. Mr Sciancalepore gave evidence that: "I actually hit his arm, his hand with the battery pack. He retracted the hand and he reached for the ignition again, at which point I actually proceeded to hit him twice in the face with the battery pack to the side of his face." 131 The Appellant did not try to protect himself from being hit with the battery pack, and did not seem to flinch. (tp 891, 896) 132 Again, it seems to me that it was a matter for the jury what they made of these factors, particularly in light of the medical evidence. 133 The Appellant relies upon the fact that he did not leave the scene after Mrs Cvetkovic had escaped from the car as indicative of his having been in a state of compromised consciousness. He submits that this is particularly so when, during that time, he was acting slowly, had difficulty putting the car into gear, and did not make eye contact with any bystanders. It was, in my view, for the jury to evaluate the significance of those matters, along with the fact that he repeatedly stabbed himself, and later in the afternoon told the police that he wanted to "terminate our lives". It would be for the jury to evaluate the extent to which his behaviour during the time of his unsuccessful attempt to drive away from the scene of the stabbing, was indicative of his state of mind at the time he was stabbing Mrs Cvetkovic, or was affected by the quite significant injuries he had inflicted on himself after he had stabbed Mrs Cvetkovic. 134 The jury would also need to take into account that there was some evidence that he was not acting in a calm and deliberate fashion during his attempt to drive away. 135 Mr Daniel Onorato was an eyewitness to the Appellant's stabbing himself, but not to any of the earlier events of the day. He gave evidence in cross-examination of seeing the Appellant move inside the vehicle from the front passenger side, to the front driver's side. In performing that action, "I'd say he was in a rush because the sirens were coming" (tp 770). Before the Appellant moved across, both of the front doors of the car were open. In closing the passenger side door "he slammed it. He grabbed it pretty hard and then it was a pretty loud shut." He rejected a suggestion that the closing of the door "was slowly and quietly" (tp 771). Mr Jonathan Bout gave evidence of seeing the Mazda leaving its parking spot with "screeching of tires" and "driving away at a fast speed" (tp 73). When he first saw the Mazda, the driver "was shouting as well as attempting to drive" (tp 74). He later saw the Appellant lying on the ground handcuffed, "I could tell that he was in pain, so he was moaning and groaning, making groaning noises" (tp 75). Other witnesses at this time also gave evidence of the Appellant moaning and groaning. In cross-examination, Mr Bout rejected the suggestion that the Appellant had not been shouting. 136 The evidence that the Appellant was exhibiting symptoms of dissociation and automatism during the period of the attack was less than compelling. However, there is a more fundamental problem about the argument that the Appellant seeks to put concerning the symptoms. I do not accept that the matching of some of the indicia of dissociation with the observed behaviour of the Appellant is material that ought have raised a reasonable doubt in the jury's mind. Ordinary experience teaches that the various indicia that Dr Nielssen identified can sometimes be exhibited by a person who is intending to do what he or she is doing. When those indicia were specifically put to Dr Nielssen, he still did not support the hypothesis of automatism. As well, Dr Westmore's evidence did not support the hypothesis, and Dr Hay expressed no opinion concerning it. Thus, the Appellant was without the expert medical opinion that the judges in Falconer regarded as being of very great importance for raising a reasonable possibility of automatism. 137 In my view, it is hard to overstate the significance of this lack of expert medical opinion. The Appellant points to very many matters of detail, concerning the evidence in the case, but the fact remained that judges in Falconer said, at 61, "expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised", and at 83, "a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence", and "the evidence must be very persuasive even to raise involuntariness as a reasonable hypothesis". 138 Another way in which the Appellant seeks to make good the proposition that his symptoms were those of automatism, is by comparing the evidence in his case with statements in reported cases of the opinions of medical practitioners who had given evidence in those cases about indicia of automatism. Those reported cases had not been before the jury. For reasons given below in connection with ground 2(e) ([294] ff below) the judge was right in rejecting a tender of the reasons for judgment in those cases. Medical evidence that is reported in those cases cannot be a basis for concluding that, on the material that was before the jury, it was not open to the jury to be satisfied beyond reasonable doubt of the Appellant's guilt. Reasonable Doubt Raised by Some Fragments of Expert Evidence? 139 The Appellant's submissions draw attention to particular fragments of the expert evidence. When cross-examined about the view he had expressed in his report, that I have set out at [110] above, Dr Nielssen's evidence was: "Q. Dr Nielssen, according to your second report of 15 of March 2009, you allow possibility that my conduct was involuntary. If I could take you to the last sentence of your report. In that report you wrote 'However, any loss of voluntary control would have been at least partially due to effect of an underlying depressive illness and would hence be considered as an insane automatism'? A. Yes. Q. So basically you allow a possibility that I was in an automatic state during the incident? A. Yes. Q. But your opinion is that the cause of automatism would be depression? A. Well the cause of a, of a, of an overwhelming impulse and a loss of control of that impulse would be an abnormal mental state arising from depression, yes." (1539) … Q. … you used words 'at least partially due to depression'? A. Yes. Q. That indicates lack of confidence, the depression caused loss of voluntary control? A. Well as you say it is a concession that that is a possibility that I can't exclude …" 140 The items appearing in bold print are those on which the Appellant relies. 141 In my view, when seen in the context of the whole of Dr Nielssen's evidence, those statements do not amount to a qualification of his view that automatism was not made out. The first of the bold print passages is not of assistance to the Appellant, because the possibility of the Appellant being in an automatic state during the incident by reason of depression would give rise, in Dr Nielssen's view, to an outcome of insanity, not an outcome of automatism, and both Dr Nielssen and the jury rejected the possibility of insanity. 142 The second bold print passage needs to be seen in its context, namely: "Q. That indicates lack of confidence, the depression caused loss of voluntary control? A. Well as you say it is a concession that that is a possibility that I can't exclude because I wasn't there and it wasn't me who was doing it, so I can't exclude that. Having said that, I was fairly confident based on all the information that you were suffering from a depressive illness at that time, therefore that would be the likely explanation for this conduct, especially as it was followed by a serious suicide attempt. Q. Are you aware of something else that could be also cause for in addition, you use a word at least partially so it must be, you use the word at least partially that is smaller part of something else that is bigger part that could be also cause for automatism. A. Well perhaps I should have framed it, you make a good point, perhaps I should not have used that term referring to the loss of voluntary control because it seemed to me that the attack was the conclusion of a long history of domestic violence and antagonism towards your wife and not acceptance of the end of the relationship so perhaps that was the other part that I was referring to." 143 The balance of the answer in which "it is a concession that that is a possibility that I can't exclude" is qualified by the rest of the answer, and further qualified by the answer to the next question. 144 The Appellant also places particular emphasis on the final paragraph of the passage in Dr Westmore's evidence that I have quoted at [102] above. In the overall context of Dr Westmore's evidence, his statement that there may have been some automatic behaviour and there may have been a degree of dissociation during the course of the stabbing is, as Dr Westmore himself explained, insufficient to give rise to a conclusion that he was suffering a "pure state of automatism". 145 These fragments in the evidence were insufficient to give rise to a reasonable doubt about the Appellant's guilt. Another portion of Dr Westmore's evidence on which the Appellant relies occurred in the Appellant's re-examination of Dr Westmore: "Q. Would you agree that it was you who suggested, according to the evidence that I gave you during the second examination, that grabbing for the knife might be the trigger, in addition to my suggestion? A. Yeah, I may have suggested that, yes. Q. Yes. Could you perceive that grabbing for the knife and screaming whilst I was expecting to get sympathy from my wife could have triggered a state of dissociation, or could have been perceived as psychological blow? A. I would agree in some people, yes. Q. Given my particular circumstances, circumstances between my wife and myself, our relationship, the time spent together, our age, do you believe that it could cause, particular in my case, it could have caused, yes? A. It's possible, yes." 146 Whether that evidence gave rise to a reasonable doubt in the jury's mind depended upon the view the jury took concerning whether there had ever been an incident in which Mrs Cvetkovic grabbed for the knife at a time when the Appellant was not already in the throws of attacking her. As well, concerning both this evidence and the evidence at [142] there was no exploration or explanation of what Dr Westmore meant by "its possible". Some states of affairs are possible, but so unlikely that they are ignored for practical purposes. Even if the jury did not reject this evidence of Dr Westmore, it was open to them to regard it as insufficient to give rise to a reasonable doubt about whether the Appellant had acted voluntarily, and with an intent to murder. Matters Making Implausible Voluntariness and Intention to Murder? 147 The Appellant also relies upon some aspects of the facts to cast in doubt that he was acting voluntarily and intended to murder Mrs Cvetkovic. He points to the time and place of the attack, which was so exposed that detection was highly likely. He points out that Mrs Cvetkovic was about to drive them both back to the Novogen carpark, and a person intending to murder her would be likely to have preferred that less exposed location. He points out that his briefcase contained many items, including a heavy laptop computer and various documents and small items that would be of no assistance in carrying through an intent to murder her. He points out that the briefcase contained the draft matrimonial property agreement, and submits there would have been no point in preparing that agreement if he had intended to murder her. He points to various steps that he took, including his own visit to the bank on the morning of the stabbing, for the purpose of enabling Mrs Cvetkovic to borrow the money. He submits that the fact that under the agreement he was to receive an unencumbered house and $250,000 provided him with a motive not to harm Mrs Cvetkovic, and that the steps he took to facilitate her borrowing the money would be pointless if he was intending to kill her. He points to his own behaviour in extending his hotel booking to the morning following the stabbing, and leaving items in the hotel room, as being inconsistent with an intention to murder her. Rather, he submits there would have been no point in extending the hotel stay, if he had intended to murder her, because his expectation would have been that before he could return to the hotel to spend the extra night that he had arranged, he would be likely to be either dead (as a result of stabbing himself after stabbing Mrs Cvetkovic) or arrested. He submits that if he had been intending to murder Mrs Cvetkovic he would not have bothered with as mundane an activity as making enquiries about buying new shoes on the morning of the intended murder. Nor would he have taken steps in the week before the stabbing, like buying the guitar and completing the sailing course, or making an appointment to see his lawyers that afternoon, all of which were plans for his life continuing into the future. He points to his own evidence about the time of day at which he was informed that the Supreme Court proceedings would not settle, his own evidence that it was like a sledgehammer to his head, and Mr Diamond's evidence about his silence and being very quiet when given the news. He submits that had he been intending to murder Mrs Cvetkovic the refusal of the defendant to settle the court proceedings would not have been of importance to him. He points to his having not only gone to the Novogen premises to collect Mrs Cvetkovic, but also that he went to the reception area where he was visible to Novogen employees, and submits that making himself visible in this fashion is unlikely to have been the conduct of a person intending to murder. He points to evidence from Mrs Cvetkovic that he took the knife from his briefcase with his left hand, and the fact that he is right-handed, and submits that a person intending to murder would be likely to use his dominant hand. 148 Whether or not these matters might raise a reasonable doubt about whether at any earlier time than just after 2pm on 6 June 2007 he had an intention to murder Mrs Cvetkovic is not essential to whether the conviction on count 2 was justified. The questions for the jury were whether, at the time he was stabbing her, he was acting voluntarily, and intended to murder her. 149 In considering those questions, a jury should take into account not only the specific matters that the Appellant points to, but the rest of the evidence, including in particular, the terms of his confession and (as relationship evidence) Mrs Cvetkovic's evidence about previous threats to kill her. If the jury were to take the view that purchasing the knife at all, and having it in the most accessible part of the briefcase, and having it in ready reaching distance rather than in the spot where he usually placed objects in the car, were indicative of an intention to harm Mrs Cvetkovic, those matters could enable the jury more readily to conclude that he was acting voluntarily, and intended to murder her, but the conviction could be sustained even if the jury did not take that view. 150 The Appellant submits that it was Mrs Cvetkovic reaching for the knife when he first removed it from the briefcase in an attempt to win her pity that provided the psychological blow that tipped him into dissociation. Whether the jury accepted that defence depended in large part on whether they accepted the evidence of Mrs Cvetkovic (to the effect that the first time she saw the knife was when it was going towards her stomach and it was in her attempt to protect herself that her hand was cut) or regarded evidence of the Appellant about that particular sequence of events as sufficient to raise a reasonable doubt. It was open to the jury to not regard the Appellant's evidence on that topic as material that (alone or in combination with other evidence) was enough to raise a reasonable doubt. If the jury regarded Mrs Cvetkovic's evidence on this topic as evidence that should be accepted, and that did not give rise to a reasonable doubt about whether any of the essential elements of the offence charged had been made out, then on that view, the Appellant was in the course of using the knife in a way likely, at the least seriously, to harm Mrs Cvetkovic before Mrs Cvetkovic's hand was cut. Use of Left Hand 151 The Appellant places reliance upon Mrs Cvetkovic's evidence that when he took the knife from the briefcase he was holding it with his left hand. He argues that for a right-handed person to do that is strongly indicative of a lack of voluntariness and intention. 152 However, there was evidence, from eyewitnesses, that much of the stabbing was done with his right hand. The Appellant failed to put to many eyewitnesses that the stabbing had been with the left hand: Mr Henderson said in chief that the stabbing was with the right hand (tp 779). He repeated that evidence in cross-examination (tp 799) and it was not suggested to him that it was wrong. During the stabbing "he was holding her back with his left hand" (tp 780), and using "as much force as he, as he could possibly use, I would say" (tp 780). Mr Homburg said in chief that the stabbing was with the right hand, and that "the left hand was over like this, grabbing her in this direction and sort of holding her down" (tp 690). It was not put to him in cross-examination that he was mistaken, or that he saw any stabbing with the left hand. Mr Thow said in chief that he saw lunging with the Appellant's right arm (tp 715). In cross-examination he said that as far as he could recollect it was in the right hand, but he could not be one hundred percent sure (tp 723). Mr Shear said nothing in evidence-in-chief about which hand was doing the stabbing. It was not put to him in cross-examination that the stabbing was done with the left hand (tp 681-688). Ms Hayes said nothing in chief about the hand that was doing the stabbing, and was not asked about it in cross-examination. On his own account, the Appellant was turned towards Mrs Cvetkovic (see [78] above). It was open to the jury to take the view that, when he was positioned in that way inside the car, it was easier to reach for the knife with his left hand. It was also open to the jury to take the view that, even though he had initially taken the knife with his left hand, he later transferred the knife to his right hand. If that is the view the jury took of the evidence, the Appellant having initially taken the knife with his left hand is not, in my view, sufficient to raise a reasonable doubt about the stabbing being a voluntary action. 153 The Appellant draws our attention to various statements that he made, to Dr Hay, Dr Westmore and Dr Nielssen, in which he denied having any intention to hurt his wife. It was a matter for the jury what they made of those denials. The Glasgow Coma Scores 154 Mr Andrew Rofe was one of the ambulance officers who arrived soon after the stabbing. He explained that the Glasgow Coma Score was a means of assessing a person's level of consciousness. It is ascertained by "looking at their verbal response, their motor response which is their physical response and also their response to all their eye contact". (tp 1034) The score of 15, that was given to the Appellant, was the top score on the scale. It was indicative of: "What you and I would and most people in this room would be at, at this moment. So fully conscious and aware of their surroundings." (tp 1035) 155 Mr Rofe was asked some general questions about how the verbal response indicator was scored: Q. If you don't get verbal response you allocate one? A. Yes. If there's no verbal response at all, they would get a score of one. Q. If the language is incomprehensible, you would allow two? A. Incoherent yes, two. Q. If the language is comprising inappropriate words, you would allocate three? A. Correct. Q. And if the patient would be confused, you would allocate four? A. Yes. Q. In terms and if patient is alert, that would be five? A. Yes." 156 Mr Rofe was then taken to part of a police statement he had given: Q. You wrote "The male", that is the beginning of the sentence, "and speaking in an inappropriate voice"? A. Yes, that's what's in my statement. Q. And the category three about verbal response, it's inappropriate voice and it is scored three; would you agree? A. Yes. Q. Scoring for inappropriate words would be three? A Yes. Q. Not five? A. Not five, no. Q But in the record it was recorded five? A. Yes, it was." No attempt was made to clarify any distinction between "inappropriate voice" and "inappropriate words" with Mr Rofe. 157 The ambulance officer who actually carried out the Glasgow Coma Scores on the Appellant was Mr David Nolan. He was cross-examined about what was needed to achieve particular scores, and agreed that some behavioural attributes that eyewitnesses had described the Appellant as sometimes exhibiting in the time after the stabbing but before the ambulance officers arrived, such as "moaning and groaning", fitted below the top score on the scale. However, the cross-examination as a whole does not challenge the correctness of the score of 15 that Mr Nolan had attributed to the Appellant at the time Mr Nolan assessed him. Nor was there any attempt systematically to match any aspects that eyewitnesses had observed in the Appellant's behaviour at the time he was stabbing Mrs Cvetkovic with aspects of the Glasgow Coma Score scale. To the extent that the Appellant exhibited any symptoms that might be consistent with less than top score on one of the dimensions of the scale in the period before the ambulance officers arrived, the observations related to a time after the Appellant had inflicted quite serious stabbing injuries upon himself. As well, between the time the Appellant stabbed Mrs Cvetkovic and the time he was assessed by the ambulance officers, he had been subjected to capsicum spray. Further, it would be open to a jury to take the view that for the Appellant to exhibit a symptom like moaning and groaning at a time when no one was trying to engage his attention said nothing about his response about a time when an ambulance officer was actively trying to engage his attention for the purpose of assessing his level of consciousness. 158 Mr Nolan confirmed that "inappropriate words" would score a 3. The judge then asked Mr Nolan: "Q. What do you mean by inappropriate words? A. Inappropriate? Q. Yes. A. If you ask a patient a question and their answers are basically, if I asked you what day it was today and you said, "Oh, it's cat and dog." Q. So is unresponsive? A. No, that's not an unresponsive. Unresponsive is if you weren't actually verbalising at all. Q. So there's an answer but it doesn't meet the question? A. Well, yes, so if you have the (5) to (1), so (5) is orientated, so if I asked you for instance what day it was, what week it was, what month it was, and you answer all those correctly, that would be orientated. And if you're confused, if I said to you what day is it and you said, "Oh, it's Friday, it's July", you know, and you're aware of what the responses should be but they're not the correct responses. Then inappropriate is like I said, you know, if I say what day is it and say, "Cat and dog." If it was incoherent it would be just like a verbal moan or a grunt or unable to produce a word." 159 The Appellant submitted to us that the transcript was inaccurate in referring to Mr Roth as having said "and speaking in an inappropriate voice", rather than "speaking inappropriate words". Even if that were so, words can be "inappropriate" in all sorts of ways, ranging from being impolite, to answering a question by saying words that are quite unconnected with the question. Mr Nolan's evidence made clear that it is the latter sense that matters for the purpose of the Glasgow Coma Score. There was no evidence that the Appellant was speaking "inappropriate words" in that sense. 160 In all these circumstances, there was no basis in the evidence for the jury to doubt the correctness of the score of 15 that Mr Nolan obtained, at the time he obtained it. Ground 1(B) – Inadequate and Tainted Evidence 161 The Appellant submits that the evidence put before the jury contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force. No doubt that form of words is derived from M v R (quoted at [86] above). In consequence he submits that there is a substantial possibility that the jury may have been mistaken or mislead as to the evidence concerning his defence of automatism, and his case concerning voluntariness and specific intention. The Ambulance Officers' Evidence 162 The Appellant submits that the ambulance patient health care record that records his Glasgow Coma Scores is unreliable because it records the wrong time in relation to when evaluations were made. It shows that car number 1557 and assist car number 1941 were involved, that one of them arrived at the scene at 14:34, made patient contact at 14:36, and departed at 14:42, yet it also shows Glasgow Coma Scores being taken at 14:22 and 14:37. 163 Mr Nolan was the officer who completed the form. He said that he arrived in car 1941, and the arrival time of 14:34 was the time at which car 1557 arrived. He said that he had made the observations at 14:22 that are recorded in the form. 164 It was open to the jury to accept that evidence, and I see nothing in the cross-examination to provide a ground for them not to do so. I see no basis for concern about the patient health care record being in any way inadequate or tainted. 165 Another respect in which the ambulance officers' evidence is attacked is that it is submitted that they made a wrong record of the Glasgow Coma Score, because the verbal response item should have been recorded as a 3 instead of a 5. For reasons I have already given, no sufficient basis for doubting the correctness of the scores was laid. Unreliability of the Police Interview 166 The Appellant submits in this Court that the fact that he incriminated himself in the police interview is a reason for concluding "with high level of confidence that his representation that he wanted to terminate their lives was not true". He says that if he was planning to kill his wife, he would hardly tell the truth to the police, but then consistently tell treating doctors that he did not intend to harm his wife. He points out that he did not say anything in the police interview about remembering the incident itself, and insofar as there was any mention of injuries they were his own, not those of his wife. He says that his demeanour, as described by Sergeant Kable, was that of a person not telling the truth. 167 While the Appellant addressed the jury about the confession to the police (tp 2105-2107), and put to them that his demeanour was indicative of a person who was not telling the truth, the submission about the unreliability of the confession was not put to the jury as strongly as it was put to us. Rather, he referred to some evidence about his demeanour at the time, and said: "This can indicate a person who is not telling the truth, or something else but the fact is that I self-incriminated myself. I incriminated myself. So if – and that is the only issue. So it would be again up to you if you could find some value of that description and evidence." (tp 2107) 168 The evidence and submission of the Appellant concerning the statement to the police was accurately summarised by the judge in her summing up: "The accused seems not to dispute that he said those words. He said in his evidence that what he told the police in that interview was what he believed had happened, and in his closing address to you he identified a possible source of that belief as what he heard police officers say at the scene, that he had harmed himself." 169 Insofar as I am required to consider for myself whether the matters that the Appellant points to about his confession to the police lead to a doubt about whether the jury could have placed weight on them, I do not find the argument persuasive. Contamination of Audio Record of Police Interview? 170 The Appellant submits that there was contamination of the audio record of the police interview. He says that that is demonstrated by the fact that the audio recording played to the jury had been enhanced to improve its audibility, and that near the start of the recording it was possible to hear the Appellant saying "it's absolute madness", but that the transcript provided to the jury omitted his statement "it's absolute madness". He also submits that there is a line that does not appear on the audio recording, nor on the transcript, but that detectives Kable and Barnes recorded, namely "I can only believe that this is happening, it's a nightmare. Just I can say …". 171 When the audio recording, the transcript, the oral evidence of detectives Connell and Kable were all placed before the jury, the jury was cautioned about discrepancies in the way set out at [42], the contemporaneous notes of the police officers were available to the Appellant for cross-examination and when the words missing from some versions of the evidence of the conversation are in any event insignificant to the overall thrust of the conversation, I am not satisfied that this point has substance. Tainting of Evidence About Voicemail Messages? 172 The Appellant submitted that the police had tainted the evidence relating to the two voicemail messages that had been recorded on Mrs Cvetkovic's answering machine on the morning of the stabbing. 173 Detective Bartlett was the police officer who heard the messages from Novogen. His evidence was that the first message was a male voice, non-English speaking, recorded at 11.31am on the 6th of June 2007, while the second was from Bob Jennings of the Commonwealth Bank, recorded at 12.08pm on 6 June 2007. He said both were difficult to hear, and one of them was in a foreign language. Detective Barnes gave evidence of being able to ascertain that the speaker in the foreign language message was male, and that it was an Eastern European language. There was evidence from Detective Senior Constable Connell that she had played the foreign language message over to Alex, who had said, "that's my father, I can't understand some of it but he is talking about an interview." Ultimately, there was no issue in the case that the Appellant had made arrangements to have an interview with the Commonwealth Bank about borrowing money. 174 Early in the trial, it became necessary to discharge the jury, and a fresh jury was empanelled. During the time when it appeared that the trial would proceed before the first jury, the Crown had told the judge that there was a question about whether 12.08pm was the time that the message left by Mr Jennings was recorded, or the time when someone accessed the message to re-record it. However, later in the trial, the prosecutor withdrew that doubt: "I did say at the start of the trial, your Honour, but it's clear from Detective Bartlett's evidence that she listens to it on the original system, not a rerecorded message. So from the original system that time must be right."" 175 There was ultimately no issue that the Appellant had made arrangements to go to the Commonwealth Bank. I see no substance in the allegation that the evidence about the voicemail messages was tainted. Inconsistencies in Eyewitness Evidence 176 The Appellant submitted that there were two significant respects in which Ms Hayes' oral evidence differed from the statement that she had given to police. In her oral evidence she said that the Appellant "had I am not sure if it was one or two legs up kicking her", while in her statement she had said that he "had his legs up". In her statement she had not mentioned anything about seeing blood on Mrs Cvetkovic, but in oral evidence, when asked whether she saw what clothing Mrs Cvetkovic was wearing, she said "no, there was a lot of blood, so I couldn't see any clothing". 177 The Appellant cross-examined Ms Hayes about each of those discrepancies between her statement and her oral evidence. The discrepancies provide no basis for a conclusion that the evidence was tainted. The fact that the discrepancies existed at all was material for the jury to take into account. 178 The Appellant also draws attention to some inconsistencies in the evidence of Messrs Henderson, Thow and Homburg about the detail of the stabbing, and submits that they show that those people are not credible witnesses. 179 In my view, the differences to which the Appellant draws attention are the sort of differences concerning detail that are a common feature of eyewitness evidence. It was a matter for the jury to decide what they made of them. They are not such that the evidence of these eyewitnesses could not safely have been left to the jury. 180 Mr Homburg gave some evidence orally about the Appellant having at one stage closed the door of the car. When questioned about the absence of any such incident from the police statement, Mr Homburg said that it was one of the amendments that he had made to his statement, at a date that could be placed as being late April or early May 2008. The Appellant had not been served with any amended statement from Mr Homburg. 181 In my view, the failure to serve an amended statement correcting this matter of detail did not result in there being any overall miscarriage of justice at the trial. Mrs Cvetkovic's Evidence 182 The Appellant submits that Mrs Cvetkovic was fabricating allegations and providing misleading and evasive answers. He gives examples of what he says are discrepancies in her evidence, or matters concerning which she ought not have been believed. However, he addressed the jury, with examples, on the subject of Mrs Cvetkovic's credibility. It was a matter for the jury whether they saw these matters as raising a reasonable doubt about any of the essential elements of the charge. None of them is such that a reasonable jury ought to have taken the view that a reasonable doubt was raised. Injury to the Neck 183 The Appellant submits that the prosecutor misled the jury concerning the injury to the victim's neck. He submits that Mrs Cvetkovic sustained one injury to her neck, on the left hand side. I outline the evidence relating to the injury or injuries to Mrs Cvetkovic's neck in dealing with ground 2(g) at [327] ff below. The Appellant submits that Dr Montague's evidence in chief, that there were four separate injuries to the neck area, was shown to be incorrect by the cross-examination. As my summary of that evidence at [333]-[337] shows, the cross-examination did not establish that Dr Montague was incorrect in saying there were four injuries to the neck. In any event, the precise number and location of injuries to Mrs Cvetkovic's neck is a matter of incidental detail that is not of critical importance to any issue in the case. Cuts to the Clothing of the Victim: Jacket and Jumper 184 The Appellant submits that the prosecutor misled the jury in relation to 17 cuts on the right side of the victim's jacket and jumper, which he submits were fabricated after the incident. It is correct that the jacket and jumper had various cuts on their right hand side. It is also correct that Mrs Cvetkovic had no injuries on her right hand side. 185 Photographs of the car, taken by police on the day of the stabbing, show a blood stained jacket partly draped across the driver's seat, and partly hanging out the driver's side door. Though she was not completely clear about it, Mrs Cvetkovic thought that she was wearing her jacket at the time of the incident. If the jury thought that the position of cuts on Mrs Cvetkovic's clothing was a matter of any importance at all, it was open to them to infer that in some fashion her clothing had twisted in the course of the incident. Eyewitnesses gave accounts of her clothing being in disarray. Mr Homburg said, "the left hand side of her top had been ripped down to expose the breast" (tp 691). Ms Hayes said, "… her top was torn and one of her breasts was exposed …" (tp 732). Mr Henderson said, "… her shirt or blouse was completely ripped on the left hand side, her, her sort of bra was hanging off as well …" (tp 780). 186 In circumstances where there was clear evidence, including photographs, of the location of the wounds on Mrs Cvetkovic's body, it would have been open to the jury to take the view that the precise location of cuts on her clothing was a matter of no importance. 187 There is no evidentiary basis for the suggestion that the cuts were fabricated. In my view that submission is fanciful. Position of Cars at the Exit of the Carpark 188 The evidence included a plan that a police officer had prepared of the carpark. It was apparent from the evidence of Detective Senior Constable Windass that the plan was prepared on the basis of photographs that he took after he arrived at the carpark at 3.35pm on 6 June 2007. A collection of 127 photographs of the carpark area, taken at the same time, was also tendered. Both the plan and the photographs were tendered without objection. 189 The Appellant submits that the plan and photographs misled the jury about the position of cars at the time of the incident. He draws attention to the evidence of the drivers of various cars, to the effect that they were asked to move their vehicles soon after the incident had occurred. 190 The position of various cars in the carpark was not material to the charge on which the Appellant was convicted. Evidence from the various drivers who were asked to move their cars was before the jury. The fact that there had been some changes in the position of some motor vehicles between the time of the incident and the time the photographs were taken provides no basis for doubting the jury's verdict. Dr Nielssen's Evidence Wrong 191 The Appellant submits that Dr Nielssen's "understanding of evidence, allegation of premeditation, and reservation about the cause of dissociation and automatism indicates a superficial, selective, inconsistent, biased or wrong approach". The Appellant submits that this conclusion should be drawn from three classes of evidence. The first is the various activities that the Appellant engaged in both in the week before the incident, and on the day of the incident, (that I have summarised in [147] above) were indicative of him not having an intention to harm his wife. The second was Dr Nielssen's failure to accept that the Appellant's having both the knife and the draft matrimonial property agreement in his briefcase showed that he did not have an intention to harm his wife. The third is Dr Nielssen's unwillingness to accept that the Appellant was tipped into automatism by an accumulation of stresses and a psychological blow. 192 None of the matters to which the Appellant points is of such force that a reasonable jury could not, in the light of it, accept the conclusions about automatism at which Dr Nielssen arrived. Significance of Leaving the Alternative Verdict to the Jury 193 The judge left to the jury the possibility of an alternative verdict under section 35 Crimes Act. The Appellant submits that taken at its highest the state of evidence at the end of the trial was such that the judge was justified in leaving that alternative verdict to the jury. 194 It by no means follows from the fact that the judge took the view that an alternative verdict under section 35 was open on the evidence, that the jury was mistaken in convicting the Appellant of the charge of which they convicted him. Conclusion on Ground 1 195 I would not underestimate the benefit that the jury had in actually seeing and hearing the witnesses, by comparison with the position that this Court is in when it deals with the transcript. One example is that it is apparent from the transcript, that witnesses to the stabbing gave demonstrations in the witness box of the types of action that they saw, that are sometimes not described in the transcript at all, and sometimes described in only a sketchy fashion. Another example is that there was an occasion during the Appellant's cross-examination of Alex when he made a deliberate decision, notwithstanding a warning (in the absence of the jury) from the judge about the areas of evidence it might open up that had henceforth been excluded, to raise his own good character. He asked Alex a series of questions, nearly all of which she agreed with, designed to show the range of activities he had carried out with Alex in her younger years, that were the sort of activities that an involved and caring father would carry out with his daughter (tp 663-669). On paper, it looks to be a well-structured and moderately successful piece of cross-examination, for the purpose of achieving its evident objective. However, the transcript records that, immediately after the jury had departed, the judge said to the Appellant: "Do you have no feeling for your daughter that you would persist in asking questions when she sitting in the witness box in tears? Really, I don't require an answer" (tp 670). It is clear that there were nuances of tone and emotion in the evidence that the transcript did not capture. 196 The first ground of appeal fails. GROUND 2 – WRONG INTERLOCUTORY DECISIONS? 197 The Appellant's second ground of appeal consists of eight separate matters concerning which the Appellant submits the trial judge erred. Many of those matters are subdivided into two or more different parts. I will deal with them seriatim. Ground 2(a) – Refusal of Adjournment Application 198 The Appellant was arrested at the car park where the stabbing occurred, within half an hour of the stabbing incident. Though he had legal advisors from soon after the time of his arrest, he was self-represented from November 2008. 199 The trial was listed to start before her Honour Judge Murrell on 9 March 2009. On that day the Appellant sought an adjournment of the trial for another three months. The Crown Prosecutor outlined to the judge, without objection from the Appellant, the procedural history of the matter, as follows. 200 The trial had first been listed to proceed on 19 May 2008. Six weeks before that date the Crown was served with a report from Dr Bruce Westmore, raising a possible defence of mental illness. The Crown commissioned Dr Olav Nielssen to examine the Appellant and prepare a report on him. That report was not available until the day of the trial or soon before. The Appellant's lawyers succeeded in an application to vacate the hearing date. 201 The trial was then listed for 18 August 2008. On 13 August 2008 the Appellant dismissed his legal team. A new legal team wished to obtain further psychiatric examinations, and succeeded in an application to adjourn the trial. 202 The trial was then fixed for 1 December 2008. In the course of November 2008 the Appellant dismissed his legal team (which was, by then, his third legal team) and thereafter had no legal representation. In the course of November 2008 the Appellant obtained an adjournment of the trial fixed for 1 December 2008, on the basis that he wished to obtain a report from a Professor Greenberg. The trial then came to be fixed on Monday, 9 March 2009, before Judge Murrell. 203 On 9 March 2009 discussion between Judge Murrell, the Prosecutor and the Appellant identified various legal issues that would need to be resolved before any trial began, and various items of evidence that the Appellant wished to have available to him. The Crown offered to assist the Appellant in obtaining that evidentiary material. The judge explained to the Appellant that if count 1 of the charges was tried together with the other counts, section 294A Criminal Procedure Act 1986 would apply to the trial of all the charges, and would prohibit him from being the person who cross-examined Mrs Cvetkovic. The judge also explained that in that event it was possible for the court to appoint someone who would question Mrs Cvetkovic on his behalf. 204 The basis on which the Appellant sought the adjournment of the trial was his own lack of preparation, arising from him being moved on several occasions within the prison system, to situations where he was unable to use a computer or the library, and in which he did not have access to his papers. He had regained access to his papers only on 5 March 2009. For several weeks, in protest at being moved within the prison system he was (as he described it in a Department of Corrective Services Inmate's Application dated 10 March 2009, that was before Judge Murrell as exhibit VD5) "on hunger strike". He stated he had been in a state of depression. However, there was no medical evidence before Judge Murrell that he satisfied the clinical criteria for depression. 205 On his return to gaol on the evening of 9 March 2009, the Appellant was placed in the Acute Crisis Management Unit (ACMU), without access to his legal papers. He thereupon resumed his hunger strike, and kept it up for the next few days, while Judge Murrell continued the hearing. 206 When he informed the Court on 10 March 2009 that he had been placed in the ACMU without papers, the judge explained that the most she could do was to request that he be placed in a particular part of the prison system, but the court had no power to order it. 207 A reading of the transcript before Judge Murrell shows that the Appellant was articulate, and had considerable familiarity with the provisions of the Evidence Act 1995. The evidence he gave later at his trial showed that he had done some law courses while in Australia, and obtained a post graduate diploma in jurisprudence. 208 On 10 March 2009 the following exchange occurred. "HER HONOUR: … From what I can gather, Mr Cvetkovic, your application for adjournment has two main bases. The first is that you have been unable to work on the legal aspects of your case due to the fact that you've been moved around, you haven't had access to the library, you haven't had access to documents et cetera and also you've had some depression et cetera, so you haven't been in a condition to work on the legal aspects of your case even if you'd had the opportunity to do so. And the second basis, as I understand it, for your application for adjournment, is that you've been unable to organise the evidence by the issue of subpoena et cetera. It would appear to me that the evidence problems have been overcome through the cooperation of the Crown Prosecutor with one possible exception and that is your desire to obtain a supplementary from Dr Westmore. That may be able to be addressed if Legal Aid cooperates and gives you a limited grant of legal aid to obtain that supplementary report. Is that correct? ACCUSED: Yes, your Honour, and in addition, I would like you to consider the annexure to the affidavit that I filed today: exhibit VD3. There is also considerable change in my mental and physical ability to proceed with the case, either represented or not. It is highly traumatic for me to be placed in the same unit and it is for an indefinite time. I perceive the management from the prison authorities, since November, as highly disadvantageous for me. HER HONOUR: The problem with – I understand that you say that the circumstances in which you have been housed, combined with your mental stress which is tied in with your housing, has meant you haven't been able to work on the case. Particularly, you haven't been able to do research. But is that going to change if I adjourn the case? Explain to me how that will change if I adjourn the case. ACCUSED: I am in the hands of society; I am in the hands of the court and the prison authorities." 209 After lunch that day the Crown Prosecutor reported that a letter was to be written to the Commissioner of Corrective Services concerning the part of the gaol system in which the Appellant was accommodated. In the afternoon of 10 March 2009 the following exchange occurred: "HER HONOUR: … Mr Cvetkovic, what I am proposing is this: that I deal with the pre-trial issues, that is the issues of what, if any, tendency and relationship evidence can be brought up, the 293 matter, the 126A matter and the question of the admissibility of the police interview. That I deal with those things and that after that I would adjourn the proceedings for a period of time, but not three months. During that period of time, you can provide your list of questions to the person who will be appointed to ask questions on your behalf and the matter will proceed. ACCUSED: Your Honour, I am not in position to take argument on pre-trial issues for several reasons that I already given; one of them is that I'm not prepared in terms of legal information. Second, that I am no physically and mentally prepared because of given reasons, and I would ask for adjournment for such a period until I could get opportunity to finalise argument according to the actions of prison authorities. In addition, I would be grateful-- HER HONOUR: I'm not going to adjourn this trial until the prison authorities get around to doing what it is that you want them to do, Mr Cvetkovic. That may never happen." 210 Discussion of pre-trial matters continued on 11 March 2009. 211 At the start of 12 March 2009 the Crown Prosecutor informed the Court that the Legal Aid authorities had refused to provide any funding to secure Dr Westmore's attendance or a report from him, but the Crown would pay the costs associated with Dr Westmore being subpoenaed, and for up to two hours of his time for a supplementary report. 212 At the close of proceedings on Thursday, 12 March 2009 the following exchange occurred: "ACCUSED: Your Honour I must draw attention to the court that I am not physically not mentally fit, nor in terms of knowledge to proceed with this hearing. I absolutely cannot respond in terms of admissibility of evidence until I do my research on that issues, so-- HER HONOUR: As far as your physical fitness is concerned that is entirely within your own control because you are voluntarily undertaking a hunger strike. As far as your mental fitness is concerned the manner in which you've conducted this matter to date you've demonstrated that you're an intelligent person who for a layperson has a very good insight into the issues that arise and an ability to respond to them. Furthermore you'll be given the Crown's submissions in writing by this evening which would permit you 3 days within which to absorb those submissions so that you're in a position to respond to them on Monday. The Crown will be providing you with both the legislation and the most important cases concerning the relevant points, and I'm confident that you'll be able to absorb and respond to that material. I'll adjourn till Monday morning at 10." 213 On Monday, 16 March 2009 extracts from a psychiatric report from Dr Greenburg on the Appellant, dated 9 March 2009 was tendered. It was based on an interview lasting 4½ to 5 hours. The writer was of the opinion that the Appellant was not suffering from a mental illness or mental disorder within the meaning of Chapter III of the Mental Health Act 2007. 214 On 16 March 2009 the judge told the Appellant that she would not consider his application for adjournment of the trial until after the pre-trial arguments were concluded, and that, before embarking on the remaining pre-trial arguments, she would consider his application that those pre-trial arguments themselves be adjourned. Later that day her Honour delivered her reasons for refusing the application to adjourn the remaining pre-trial issues. They were: "1. The accused applies to adjourn consideration of the remaining pre-trial issues. Those issues concern are: (1) Whether s 293 applies to evidence that the Crown seeks to adduce and, if so, what determinations the Court ought to make under s 293. (2) The admissibility of evidence as tendency and/or relationship/context evidence. 2. The bases of the adjournment application are: (1) Because of the circumstances in which he has been accommodated of recent times, the accused has been unable to prepare a response to the Crown's contentions. (2) The accused is not physically and mentally fit to respond to the Crown's contentions. 3. In relation to the first matter, the Crown's submissions fall into two discrete areas. In accordance with directions, the Crown provided the accused with an outline of submissions, a copy of relevant legislation, and a copy of relevant cases. The accused has had the opportunity of perusing the material over the past three days, Friday, Saturday and Sunday. It is apparent that he has done so, because he has produced a response Exhibit VD9. The accused is an intelligent person. He has considered and responded to the Crown's submissions. 4. In relation to his physical and mental health, the accused elected to go on a hunger strike, commencing approximately six days ago. That condition is self-imposed. Through Exhibit VD9, his verbal submissions and his general presentation in Court, the accused has shown that he is mentally quite capable of responding to the matters that the Crown has raised. Further, according to a report of Professor Greenburg, in a general sense, the accused is psychologically well. When Professor Greenburg assessed him on 27 February 2009, he found that there were no reasonable grounds to believe that the accused suffered from a mental illness or mental disorder. He noted that the accused appeared to be of superior intellectual functioning. 5. The bases for adjournment of the pre-trial issues are not made out. The application is refused." 215 At a later time, the trial was fixed to commence on 18 May 2009. Thus, apart from the hearing of the pre-trial issues, the Appellant gained an adjournment of two months, nine days from the date on which the trial had originally been fixed to commence. 216 An application for adjournment of legal proceedings requires the judge to make a discretionary judgment. An appeal against a discretionary judgment can succeed only within the principles stated in House v The King (1936) 55 CLR 499 at 504-5: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 217 The test for appellate review of a discretionary decision that relates to a matter of practice and procedure is the same as for appellate review of any other discretionary decision: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA (with whom Sheller JA and Studdert AJA agreed). However, as a matter of fact there is often a particular difficulty in being able to satisfy the criteria for appellate intervention concerning a discretionary judgment that is one relating to a matter of practice and procedure. The Appellant did not seek to identify any particular way in which any of these criteria identified in House v The King had been met. 218 In all the circumstances, I am not persuaded that Judge Murrell has dealt with the application for adjournment in a manner that is susceptible of being reversed on appeal. I would not uphold ground 2(a). Ground 2(b)(i) – Evidence of Character and Tendency of Victim and her Daughter 219 Prior to the matter being listed before Judge Murrell in March 2009 the Crown had served a notice of the type referred to in section 97(1)(a) Evidence Act 1995. The notice stated the Crown's intention to rely on evidence of various incidents of the Appellant verbally or physically abusing Mrs Cvetkovic, including evidence relating to the incident that was the subject of the first charge. The notice identified the tendency sought to be proved as. "… his tendency to act in a particular way, namely to be verbally abusive, physically violent and controlling in his behaviour towards Sladjana Cvetkovic and Aleksandra Cvetkovic." 220 In the course of argument on whether such evidence should be admitted as tendency evidence, the Appellant informed Judge Murrell that he too wished to rely upon tendency evidence. He told the judge, without objection, that he had informed the Prosecutor of his intention to rely on such evidence in a letter in August. The Crown at no subsequent stage adopted as a ground for such evidence being rejected, any failure of the Appellant to serve a tendency notice concerning it. 221 The tendency that the Appellant wished to prove Mrs Cvetkovic and Aleksandra had, was a tendency to lie, even in serious circumstances like on oath. He provided the court with a written document that identified what he submitted were eight specific examples of them lying. Each contrasted a statement that one or other of them had made on one occasion, with a statement that that person had made on another occasion, or contrasted it with certain specific facts said to be inconsistent with the truth of the statement in question. 222 The Appellant first raised his desire to call such evidence with Judge Murrell on 16 March 2009. Her Honour's initial reaction (tp 190) was "I don't believe that that is what we have in mind when we refer to tendency evidence". When the Appellant sought to return to the topic later that day, the judge said, "issues of credit can be argued at the trial" (tp 193). 223 Early on the first day of the trial before her Honour Judge Sweeney the Appellant raised again his desire to adduce evidence of the propensity of Mrs Cvetkovic and Aleksandra to lie. He presented a written document, marked as exhibit VD3 before her Honour Judge Sweeney that detailed his argument. That argument invoked sections 95, 97 101, 135, 136, 165 and 192 of the Evidence Act. The judge said (tp 30): "As to what you say is the tendency of your former wife and daughter to fabricate or not make credible allegations, that doesn't come within the meaning of tendency evidence. So you can cross-examine your daughter about various other statements she's made and you can have the court appointed representative cross-examine your former wife about other statements she's made and then depending on the answers you get you can certainly make submissions to the jury about whether or not they should accept the evidence of those witnesses or not in your closing address if you demonstrate that they've made different statements on different occasions. But you're permitted to do that because the Evidence Act says if a witness is giving evidence and you're wanting to cross-examine that witness about having told an untruth on another occasion, you can do that. But that's not tendency evidence, so you don't need permission to call it as tendency evidence, you simply put the question to them, if necessary show them the document if they don't agree that they said what's in another document, and you cross-examine your daughter in that way and you have the court appointed representative cross-examine your wife in that way." 224 The Evidence Act requires a series of steps to be gone through for deciding questions concerning the admissibility of evidence relating to credibility, where the evidence is said to be relevant because it shows a tendency of the accused. A fully articulated argument concerning the admissibility of such evidence would start by identifying, concerning any particular item of evidence proposed to be adduced, whether it passes the test in section 55(1) that if accepted it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." Section 55(2) makes clear that evidence is not to be taken to be irrelevant only because it relates only to the credibility of a witness. If the evidence is relevant, then section 56 makes it admissible, unless there is some other provision of the Evidence Act that makes it inadmissible. If the particular piece of evidence in question passes the hurdle of section 55(1), and it is evidence tendered to prove "that a person has or had a tendency … to act in a particular way" it is admissible only if it complies with the requirements of section 97(1)(a) (or is exempted from section 97(1)(a) by section 97(2)), and if it complies with section 97(1)(b). While section 101 is applicable to tendency evidence in criminal proceedings, it does not apply to the evidence that the Appellant was here seeking to adduce, because of section 101(2), and the evidence in question not being evidence "about a defendant, that is adduced by the prosecution". See generally R v Ford [2009] NSWCCA 306 at [33]-[43], [47]-[64]. As the evidence that is here in question concerns the credibility of a witness, it would also be necessary to decide whether the particular evidence in question fell within the definition of "credibility evidence" in section 101A Evidence Act. One would then need to decide what impact the provisions of sections 102-108 inclusive had on the admissibility of the evidence in question. Neither the Appellant nor the judge approached the question of the admissibility of the evidence of statements made by Mrs Cvetkovic and Aleksandra, said to show that they were liars, in this way. 225 The judge explained her view of the matter to the Appellant (tp 30): "… this is not tendency evidence. This is just questions that you put to a witness to say well you've said something different on a different occasion and they can either agree or not and you can show them their statements and they can agree or not but it's not tendency evidence. Tendency evidence requires you to obtain permission of the court to produce that evidence to the jury but you don't need permission to ask witnesses questions in that way, that they've made a different statement on another occasion as you say they have." 226 Judge Sweeney was not ruling that any of the matters on which the Appellant wished to rely to establish the lack of credibility of his wife and daughter were inadmissible, or could not be put. All she was ruling was that they did not amount to tendency evidence, and thus insofar as Part 3.6 Evidence Act (s 94, 101) imposes restrictions on the admissibility of tendency evidence, the Appellant was subject to no such restrictions in using material to challenge the credibility of his wife and daughter. 227 The judge went on (tp 31) to explain to him the practical consequences of her ruling: "You are able to cross-examine your daughter about prior statements that you say are inconsistent in order for you to suggest to the jury that she is not a credible witness, and you're able to have your wife cross-examined in the same way without needing a ruling of tendency evidence and then you can address the jury to say that they have fabricated, they have concocted, they have put their heads together to make up a story, depending on the answers you get in cross-examination but it is not tendency evidence and you do not need a ruling about tendency evidence." 228 No question arises on this appeal about the correctness of the judge's ruling that the evidence in question was not tendency evidence. 229 As things transpired, there was extensive cross-examination of Mrs Cvetkovic and Alex. The cross-examination of Mrs Cvetkovic occurred over six hearing days (though it did not occupy the whole of two of those hearing days), while the cross-examination of Alex occurred over three hearing days (though not occupying the whole of two of those days). The terms of many of the statements that each witness had made, and that the Appellant submitted were inconsistent statements, were put. Those statements included statements in affidavits in the Supreme Court proceedings, statements in affidavits in the Family Court proceedings, and statements made for police officers concerning the allegations against the Appellant. 230 After Mrs Cvetkovic had been informed of her rights concerning self incrimination, her answer to a question about why she had said, in the Supreme Court proceedings, that she was not frightened of the Appellant was: "The reason I said was that I didn't have any other choice. The reason is that this court case become a very difficult – gave me a very difficult time. There was intimidation. He decided to go to this court case and clear whatever he wanted to clear. I was exposed to anger. I was exposed to violence. I was exposed to many many hours of telling me what to do, how to do, how to behave, what's this, what purpose would serve other things. He would take me out from the house to pretend that he's the one asking me questions, what would be my answer, telling me how and what to do. That's what happened in that court case. If I said that I was frightened, yes he's violent, he does this and that, after that moment I said my only choice would be to run away and never see him again because I'd be punished and that's what happened." (tp 220) 231 The effect of the cross-examination of Mrs Cvetkovic on the previous statements was on some occasions to bring into evidence incidents of violence that had not been specifically referred to in her evidence-in-chief. For example, when it was put that no specific incident of violence was referred to in certain nominated paragraphs of her police statement, her answer was: "No, I disagree. That's – for example there is a paragraph in which he used umbrella to hit me. That's specific in that which I describe somewhere else a little bit later. The specific event that he use, he took a shower, came upstairs and hit me, for me that's specific, I didn't put time that that happened." (tp 248) 232 Likewise, many of the facts that the Appellant submitted were inconsistent with statements of those witnesses were put. They included the unlikelihood of the Appellant and Mrs Cvetkovic working hard in their business if she was suffering the sort of physical abuse that she alleged she had undergone. Mrs Cvetkovic rejected all suggestions that her statements about the extent of physical abuse she had suffered, or about threats to kill or wound, were lies. She did not accept that her failure to go to either the police, or a doctor, concerning the violence and injuries inflicted on her showed that she was lying about suffering such violence and injuries. Another example was: "Q. Mrs Cvetkovic, you said in a statement that you returned home in July because of this court case? A. Yes. Q. Supreme Court case. If you felt any discomfort in relation to the relationship with the accused and this court case, why did you stay? A. Because I had to. I didn't have any choice. We're talking about here a man who tried to kill me. I'm sitting here almost being dead, almost being killed and you are asking me why I did that. Imagine. That would happen at that time." (tp 220) 233 The cross-examination was not wholly fruitless – for example, Mrs Cvetkovic admitted that she had made a mistake in a previous affidavit concerning some aspects of the Wentworth Park incident, though she did not accept that the mistake arose through a deliberate attempt to misrepresent the facts (tp 414-415). 234 Similarly, he put to Alex in cross-examination that certain of her prior statements were incorrect, which she denied (tp 561 ff). In particular, Alex denied a suggestion that the Appellant had never threatened to kill Mrs Cvetkovic (tp 601). Her cross-examination included her accepting that one of her prior statements was incorrect (tp 609). When asked for an explanation of how she had said to the police she never really saw any arguing or abuse between her parents, her explanation was that she had given the police statement at Royal North Shore Hospital on the day of the stabbing, at a time when her mother was still undergoing surgery, and she was in a state of shock (tp 612). The Appellant addressed the jury concerning what he submitted were statements inconsistent with the evidence of Mrs Cvetkovic and Alex in the case, and actions that were inconsistent with their evidence. 235 Thus, Judge Murrell's ruling did not prevent the Appellant from putting to the jury his contentions about the credibility of Mrs Cvetkovic and Alex. I would not uphold ground 2(b)(i). Ground 2(b)(ii) – Failure to make Section 136 Ruling Re Affidavits in Other Proceedings 236 Immediately after Judge Sweeney had stated that the Appellant needed no ruling on tendency evidence, the Appellant applied for a ruling under section 136 Evidence Act concerning certain affidavits that Mrs Cvetkovic and Aleksandra had sworn in other proceedings. The ruling he requested was that statements in those affidavits should be limited, pursuant to section 136, to being used only on the topic of credibility of Mrs Cvetkovic and Aleksandra. His concern, as he explained to the judge, was that if there was no such limit, the evidence in those affidavits might be used as a means of "degradation, whether there is truth or not". 237 The judge's initial response to his application (tp 32) was "I think I will have to wait and hear what you say, what questions are put to the witnesses before I decide on that, Mr Cvetkovic." He then explained "I need decision before I start to prevent further introducing of lies contained in these affidavits." The judge reiterated: "… I think I can't make that decision in advance until I hear the questioning. But if I think there is coming a point that you are going to be prejudiced, I can stop the questioning, send the jury out and we can have this discussion again, but at the moment I can't give an advanced ruling until I hear the evidence." 238 The Appellant reminded Judge Sweeney that Judge Murrell had been able to make a pre-trial ruling limiting cross-examination of Mrs Cvetkovic to exclude whether she had had any extramarital sexual relationship. Judge Sweeney told the Appellant that the question that Judge Murrell ruled on "was different". She reiterated: "I will not make that decision at this stage. I will make the decision when I hear your cross-examination. I will probably make the decision you want me to do but I cannot make it now, I do not have enough information and that's the last thing I'm going to say about it right now." 239 The Appellant asserts, without any particularity as to why, that for Judge Sweeney to decline to give the ruling he requested was a "wrong decision on a question of law." 240 I do not accept that Judge Sweeney's refusal to make the section 136 ruling, on the first day of the trial, was erroneous. Judge Murrell had taken the course of making a pre-trial ruling on whether Mrs Cvetkovic could be cross-examined on the topic of whether she had had any extramarital sexual relationship because section 293(5)-(7) Criminal Procedure Act, set out and further discussed at [280] ff below, required Judge Murrell to proceed in that way. Section 293 did not expressly require that there also be a pre-trial ruling about whether any limitation under section 136 should be imposed on evidence thus ruled to be admissible. However, whether such a limitation should be imposed is very closely related to whether the evidence should be permitted at all. It is unnecessary for present purposes to decide whether the imposition of a section 136 limitation on evidence that is permitted to be given pursuant to section 293 is something that a judge must, by implication from section 293, carry out at the pre-trial phase, or whether it is a legitimate exercise of a judge's discretion to decide about any such section 136 limitations at the pre-trial phase. In the present case, for Judge Murrell to decide at the pre-trial phase about the section 136 limitation on evidence concerning Mrs Cvetkovic's sexual activity fell into one or other of these categories. 241 By contrast, no statute required Judge Sweeney to decide as a pre-trial question whether a section 136 limitation should be imposed on the affidavit evidence that Mr Cvetkovic wished to put to Mrs Cvetkovic and Aleksandra. Nor did any statute require Judge Sweeney to make any decision, at a pre-trial phase, of a question of admissibility of the affidavit evidence, that might give rise to a practical desirability of considering the question of a section 136 limitation at the same time. Nothing that Judge Sweeney said prevented the Appellant from making another application for a section 136 ruling concerning the affidavits later in the trial, when the judge was better informed about the issue, and better able to decide whether allowing the evidence without such a restriction would be unfairly prejudicial, or misleading or confusing. I do not uphold this ground of appeal. Ground 2(c) – Admission of Relationship Evidence 242 As mentioned in [219], prior to the matter coming before Judge Murrell the Crown had served the Appellant with a tendency notice. 243 Judge Murrell gave judgment on 16 March 2009 on the admissibility of the evidence to which the notice related. She divided the evidence in question into two categories. The first was: "General evidence regarding incidents of verbal or physical abuse, ie domestic violence, in Australia particularly from 1999, when the accused and the complainant moved to Swansea, up to June 2007 when the accused stabbed the complainant." The second category was, "the 2005 incident". 244 The judge declined to admit either category as tendency evidence. She held that the "probative value of the general evidence is insufficient to justify its admission as tendency evidence". She declined to admit evidence of the 2005 incident as tendency evidence. While recognising that the 2005 incident (on the complainant's evidence) involved a threat which could be interpreted as a threat against the complainant's life, and involved violent conduct, it had none of the hallmarks of the 2007 incident – it had occurred over a long period of time, and did not involve a knife or similar weapon. As well, there was a significant temporal gap between the 2005 incident and the 2007 incident. 245 However, her Honour decided that she would admit "at least brief evidence" of the general incidents of domestic violence and the 2005 incident as relationship or context evidence. 246 Such argument as there was on the topic of the admissibility of evidence of previous incidents of violence occurred after Judge Murrell had given her 16 March 2009 decision, earlier on 16 March 2009, not to adjourn the further hearing of the pre-trial issues. After judgment on the Appellant's application to adjourn the pre-trial issues had been delivered, and the Appellant had made a protest about what he said was its inadequacy, he said "I would like to withdraw from the hearing and further attendance of the court because it would be detrimental for my case". The judge declined to permit him to leave. Soon after, he asked again for permission to leave, and was again refused. Thereupon he said, " I am not participating any longer in this trial". Discussion then ensued between the judge and the Prosecutor about the effect of section 293 Criminal Procedure Act on evidence that the Crown wished to adduce, to the effect that, the Appellant believed that his wife had had extramarital affairs. The Appellant stayed mute until after the judge had given a judgment concerning section 293. 247 Next, the Prosecutor made submissions concerning tendency and relationship evidence. The Crown relied upon some written submissions dated 12 March 2009. Those submissions had been provided to the Appellant in advance of the hearing on 16 March 2009, and became exhibit VD13 before Judge Murrell. They set out an extract from R v Serratore [1999] NSWCCA 377 at [17]-[23], and Qualtieri v Regina [2006] NSWCCA 95 at [114]-[115]. The submissions said: "The Crown seeks to rely on the evidence of prior acts of violence; the various death threats made by the accused to the complainant; the e mail, and facsimile correspondence and the actions of the accused as detailed in his affidavit of 14 th May 2007 as being indicative of the relationship between the accused and alleged victim at the time of the 2007 offences. This is a relationship involving outbursts of violence, jealousy, controlling behaviour and an inability to accept the termination of the relationship by the accused. A detailed list of the various threats to kill Sladjana Cvetkovic is herewith." 248 That list identified one extract from the statement of Aleksandra, and seven extracts from the statement of Mrs Cvetkovic. 249 The submission set out the provisions of section 55, 135, 136 and 137 Evidence Act, and the definition of "probative value of evidence" from the Dictionary in the Evidence Act. It continued: "The accused has made admissions to Doctors Hay, Nielssen and Westmore of prior acts of violence towards Sladjana Cvetkovic. The affidavit is a document containing admissions of prior conduct by the accused. Aleksandra Cvetkovic corroborates many of the allegations of violence by Sladjana Cvetkovic. Clearly the evidence has high probative value. The credibility and reliability of the evidence is not to be assessed when considering the application of s.137; R v Shamouil [2006] NSWCCA 112. The balancing exercise to be undertaken for s.137 requires not just prejudice but unfair prejudice: R v Shamouil [2006] NSWCCA 112, per Spigelman CJ with Simpson J and Adams J agreeing. '72 There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair . There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give. (See eg R v BD (1997) 94 A Crim R 131 at 151.) (I do not need to refer to the reasoning in some cases that procedural prejudice may be sufficient.) 73 To use the test of McHugh J in Fests v The Queen (2001) 208 CLR 593 at [51]: "It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. it is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task." (See also R v Lisoff [1999] NSWCCA 364 and R v Yates [2002] NSWCCA 520 at [252].)' The evidence is directly relevant to the state of mind and intention of the accused at the time of the commission of these offences. In this matter the Crown submits that the evidence has a very high probative value and that the probative value outweighs the danger of unfair prejudice to the accused." 250 The Appellant was asked whether he wanted to say anything further in relation to tendency and relationship evidence. It was only at that stage that he departed from his earlier expressed intention not to participate in the hearing any more. He referred to an 11-page document that he had provided that morning, that had become exhibit VD9. He expressed a desire also to refer the court to a document "on admissibility of evidence on tendency and relationship that is about 8 pages long, plus part 1", (tp 188). He had told the judge earlier in that day that he had not finished writing that document, and relied upon the incompleteness of the document as one of the bases on which he sought an adjournment (tp 167). Concerning the admissibility of the relationship evidence, he said, "from my mind I can say that the time, reliability, relevance and the specificity of the evidence are those that speak against admissibility of evidence on both issues, tendency and relationship". He made no oral submission directed specifically either to the evidence of previous incidents of violence, or to the evidence of previous death threats. He did not seek to take the judge to any part of the document that had become exhibit VD9. 251 On reading that document one sees that he asserts that the document upon which he wished to rely, but did not have, contained "legal arguments based on ss 97, 101, 135, 136, 137 of the Evidence Act". However, that statement was made in the context of paragraph 6 of the document, which related to the admissibility of audio evidence of a police interview with the Appellant. 252 Paragraph 8 of the Appellant's document, VD9 was a response to "the legal cases provided by the prosecutor", evidently in the submissions of 12 March. It made submissions concerning the asserted need to take into account issues of reliability and credibility in determining the probative value of evidence, and set out some references to case law concerning the process by which "unfair prejudice" was determined. It concluded by saying that in the present case: "The nature or contents of the evidence may influence the jury – may be diverted from their task or seduced by the evidence – give the evidence undue weight or speculate about the nature." 253 Judge Murrell said nothing in her judgment about section 137. She gave no consideration, explicitly, to whether there was any "danger of unfair prejudice to the defendant", and, if there was, whether the probative value of the evidence was outweighed by the danger of unfair prejudice. However, the terms of section 137 and its relevance to the admissibility of the incidents of prior violence and threats had been clearly articulated in the Crown's submissions. 254 Bearing in mind that section 137 identifies circumstances in which a court must refuse to admit evidence, the judge should not only have considered those matters, but stated her conclusion about them. 255 In my view, her failure to do so has not caused the trial to miscarry. The Appellant had made numerous admissions of incidents of violence towards his wife in the course of the marriage (though he disputed that they were as many, or as severe as his wife alleged). 256 Dr Jayne Hay is a psychiatrist who was employed by Justice Health. She conferred with the Appellant on 12 June 2007 and made some extensive notes. One note related to an incident in May 2001 when, after an argument with his wife and daughter he "hit their heads together". The notes record that, since then: "2-3 big fights per year 3-4 DV events since when [appellant] would kick or slap wife/daughter – states not serious." 257 The notes also record "Nov 2005 – 5/7 he beat wife 'because for all period she was denying her affairs …'". In construing those notes, "DV" means "domestic violence", and 5/7 means "for five days". 258 Judge Murrell was aware that the Appellant wished to tender Dr Hay's notes because there were some passages in them that he wished to submit were exculpatory. 259 He had made clear to Judge Murrell that he consented to count 1 in the indictment being tried along with the other counts, even though Judge Murrell pointed out to him a potential forensic disadvantage in so doing, and urged him to seek to obtain legal representation. The following exchange occurred when that matter was being discussed on 10 March 2009: "HER HONOUR: Further, in relation to the 2005 incident, it is possible that the jury would find you not guilty of that matter; not be satisfied beyond reasonable doubt that it occurred. That matter could not be used as tendency evidence in relation to the 2007 charges because it was not established beyond reasonable doubt. But the jury having heard all the evidence about it may be prejudiced against you. It may potentially make them more likely to convict you on the 2007 charges, simply because the two trials have been run together. Have you given consideration to that? ACCUSED: …My position is that that should not be used as tendency nor as relationship evidence based on several elements, including s 97, 101, 137-- HER HONOUR: All right. May I say something? If you are taking the position that the 2005 incident should not be used as tendency or relationship evidence, in relation to the 2007 incident, then surely it would be part of your argument that the trials should be separated. ACCUSED: On the contrary, I would use the event of 2005 as a credibility issue on the victim and our daughter … HER HONOUR: You're prepared to have whatever unpleasant allegations are associated with the 2005 incident placed before the jury, in the hope that you can persuade the jury that your wife was lying about that incident. ACCUSED: That's correct." 260 The 2005 incident that was the subject of count 1 involved, on Mrs Cvetkovic's version, a more serious incident of domestic violence than any of the others. 261 At the trial itself the Appellant gave evidence that the judge fairly summarised, in her summing up to the jury, as: "… there was some violence but not to the extent that his wife had said. He admitted to episodes of hitting his wife to the body and legs with his belt, though he said they were of lesser duration, 10-15 seconds. He admitted slapping her, pulling her hair and pushing her." 262 The judge gave a direction to the jury about the use they could make of the relationship evidence: "You heard additional evidence from Sladjana Cvetkovic and Aleksandra Cvetkovic about acts of violence and threats of violence by the accused against Sladjana Cvetkovic between 1998 and 2006, other than the acts which are the subjects of the counts in the indictment. The reason this evidence was put before you was for the purpose of placing Sladjana Cvetkovic's evidence of the acts relied on by the Crown to prove the counts in the indictment into what the Crown says is a realistic context. Otherwise you might have wondered about the likelihood of apparently isolated acts occurring suddenly without any apparent reason. If Sladjana Cvetkovic had given evidence only of the events in 2005 and June 2007, you might have thought it was odd for there to be those isolated acts between the accused and her without any background, and you may have considered her evidence less credible, but if the acts charged are placed in the context of a history of violence, then what might have seemed odd may disappear. So the law permits you to hear that evidence about the history of violence to avoid artificiality or unreality in the presentation of the evidence. Otherwise, for you to hear of only the incidents separated by some time could leave you with, as I said, a strange or unrealistic account. So that is the relevance of that evidence in relation to counts 1, 2 and 3, to give an intelligible context to the charges." 263 The judge specifically warned the jury against using the evidence of other acts of violence as establishing a tendency on the part of the Appellant to commit offences of the kind charged. 264 In these circumstances, in my view the admission of evidence of death threats and acts of previous violence, in circumstances where the judge did not give reasons relating to the impact of section 137 on that evidence, has not resulted in any substantial miscarriage of justice. I would reject this ground of appeal. Ground 2(d)(i) – Whether Part 5 Division 1 Criminal Procedure Act 1986 Applied to Trial 265 Chapter 6 Part 5 Division 1 Criminal Procedure Act 1986 (in the form it had at the relevant time) ran from section 290 to section 294C. It contains section 293 (which places severe limitations on the admissibility of evidence relating to sexual experience or sexual activity of a complainant) and section 294A (which prohibited an unrepresented accused from cross-examining a complainant in person). Each of those provisions only applied "to proceedings in respect of a prescribed sexual offence". 266 Section 3(1) Criminal Procedure Act provided: "In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … prescribed sexual offence means: (a) an offence under section 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66EA, 66EB, 66F, 67, 68, 71, 72, 72A, 73, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 86, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F or 91G of the Crimes Act 1900 , or (b) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900 , or (c) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c)." 267 Section 290 Criminal Procedure Act provided: "(1) This Division applies to proceedings in respect of a prescribed sexual offence, including committal proceedings. (2) This Division applies to proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an alternative or additional count) and whether or not the person is liable, on the charge, to be found guilty of any other offence." 268 The charge in count 1 of the indictment against the Appellant alleged an offence against section 86 Crimes Act 1900. Counts 2, 3 and 4 of the indictment alleged contraventions that do not fall within any of paras (a)-(d) of the definition of "prescribed sexual offence". 269 On 17 March 2009 the Appellant put to Judge Murrell an argument that section 293 did not apply to the trial of the indictment against him, because the opening words of section 3(1), "except in so far as the context or subject-matter otherwise indicates or requires" had the effect that the trial of his indictment was taken out of what would otherwise be the definition of "prescribed sexual offence". This was, he submitted, because it was not alleged that he had committed any sexual offence on his wife at the time of the incident from which the first charge arose. 270 Judge Murrell rejected that argument. The Appellant repeats it in this court. 271 Judge Murrell was right to reject the argument. 272 A definition section like section 3(1) Criminal Procedure Act has as its purpose stating the meaning that particular words or phrases have, or include, in the legislation in question. The purpose of an introductory phrase in a definitions clause, along the lines of "except in so far as the context or subject-matter otherwise indicates or requires" is to cater for the possibility that, on one or more occasions when the defined word or phrase is used in the legislation, the context or subject-matter of that particular use of the defined word or phrase is such as to indicate or require that the defined meaning is not applicable. The "context" referred to is the context in which that particular usage of the defined word or phrase appears in the statute. The "subject-matter" referred to is the subject matter of that particular usage of the defined word or phrase in the statute. One can tell by a careful reading of the statute in question, supplemented by any permissible aids to statutory construction, whether "the context or subject-matter otherwise indicates or requires" that a defined meaning should not apply to a particular usage of a defined word or phrase. The permissible aids to construction include whether, if the defined meaning is used in a particular statutory provision, that provision would be unworkable or produce a result that Parliament could not have intended would be produced: Floor v Davis [1980] AC 695 at 709 per Viscount Dilhorne; Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104 at 108-109 per Mahoney JA; The Official Trustee in Bankruptcy v Buffier [2005] NSWSC 839 at [29]-[30] and cases there cited per Campbell J; Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 at [67]-[68] per Basten JA; Chief Commissioner of State Revenue v Qantas Airways Ltd [2009] NSWCA 163 at [32]-[35] per Macfarlan JA. See also Pearce & Geddes, Statutory Interpretation in Australia, 6th ed 2006 at [6.62]. 273 In support of his argument, the Appellant does not point to anything concerning the context in which the phrase "prescribed sexual offence" appears anywhere in Chapter 6 Part 5 Division 1 Criminal Procedure Act. Nor does he point to anything in the subject matter dealt with by Part 5 Division 1 Criminal Procedure Act that shows that the defined meaning is inappropriate in relation to that subject matter. 274 The nature of the offence created by section 86 Crimes Act is adequately conveyed by section 86(1): "(1) Basic offence A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years." 275 This offence could readily be committed through the undertaking of activities that had no sexual component, in the ordinary meaning of that expression. Even so, the inclusion of section 86 in the list of offences in para (a) of the definition of "prescribed sexual offence" has the effect that Parliament requires the special procedural steps that it has laid down for prescribed sexual offences to apply to an allegation of a contravention of section 86. 276 If the argument of the Appellant were right, the expression "prescribed sexual offence" in the Criminal Procedure Act might have one meaning when it was sought to be applied concerning an offence under section 86 Crimes Act that had a sexual component, but a different meaning when applied concerning an offence under section 86 Crimes Act that had no sexual component. It is highly unlikely that Parliament intended the meaning of the expression when used in section 290 Criminal Procedure Act to oscillate in this fashion. 277 I would reject this ground of appeal. Ground 2(d)(ii) – Imposing Section 136 Limitation on Sexual Experience Evidence 278 Even though it was only the first count of the indictment that fell within the definition of "prescribed sexual offence" it was a consequence of section 290(2) Criminal Procedure Act, and of all four counts being tried together, that the provisions of Chapter 6 Part 5 Division 1 Criminal Procedure Act applied to all four charges. 279 The Crown wished to lead evidence that the Appellant believed that the complainant had engaged in extramarital affairs during the early years of their marriage in Yugoslavia, and also believed that the complainant was having an affair with her superior at work, a Professor Husband, in the period prior to 6 June 2007. The Crown sought to rely upon his belief concerning the affairs in Yugoslavia as establishing motive and intention concerning the first count. It sought to rely upon both beliefs as evidence of motive and intention concerning counts 2 and 3. 280 Section 293 Criminal Procedure Act provides, so far as presently relevant: "(1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, … and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. … (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision." 281 In accordance with the procedure required by section 293, Judge Murrell, before the trial, ruled on the admissibility of the evidence concerning the Appellant's beliefs concerning Mrs Cvetkovic's affairs. 282 The Crown submitted that the evidence concerning the alleged affair with Professor Husband should be limited pursuant to section 136 Evidence Act so that it was admitted for the limited purpose of revealing the state of mind of the accused, not for the purpose of determining whether in truth she had been having an affair. 283 All of the oral discussion concerning section 293 took place at a time on 16 March 2009 after the Appellant had announced he was no longer participating in the trial, and before he rejoined the discussion. However, the judge took into account some words that appeared in the Appellant's document that became exhibit VD9 (tp 182). Part of that document said: "If the court does not exclude the evidence, the accused seeks that: (a) evidence of sexual experience of the victim and the accused should be allowed, both from the statements and relevant documents, and (b) admitted without being limited, including as a proof of truth; (c) cross examination on the evidence allowed, and not limited." 284 Another portion of that document said, in relation to this topic "In addition he relies on s 135, 136, 137, 192 of the EA." 285 Judge Murrell delivered judgment on this matter on 16 March 2009. Her Honour held that the evidence in question contravened section 293(3). In her Honour's view, even though the Crown did not rely on the evidence to establish whether or not anything of a sexual nature had actually occurred, but only on the question of the Appellant's state of mind, the evidence still "disclosed or implied" prior sexual activity. Thus, she held that it was inadmissible pursuant to section 293(3), unless it could be brought within the only relevant exception, that in section 293(4)(a). Her Honour held that the evidence concerning alleged affairs in Yugoslavia was too remote in time to satisfy section 293(4)(a)(i). She held that the evidence concerning the Appellant's belief that Mrs Cvetkovic was having an affair with Professor Husband satisfied section 293(4)(a). 286 Her Honour referred to the respective submissions concerning whether a section 136 limitation should be imposed, and continued: "12. As to whether the alleged infidelity actually occurred, there is no conceivable relevance. The only relevant matter is whether the accused thought that the events occurred. To admit the evidence for all purposes would be confusing and would have no relevance to the issues to be determined in this trial. Therefore, pursuant to the provisions of s 136, the evidence will be admitted for the limited purpose of throwing light on the accused's state of mind at the time of commission of the alleged offences, and not for the purpose of determining the truth of the allegations. 13. The accused may cross-examine the complainant about matters reflecting on his state of mind or belief that she had affairs, but not as to the truth of whether she was, in fact, unfaithful because as I have said, there is no relevance in pursuing that line of enquiry. Furthermore, to permit him to pursue that line of enquiry would be to allow questioning that would be improper under s 41 of the Evidence Act." 287 On this appeal the Appellant contends that Judge Murrell was wrong in imposing that section 136 limitation. Without further elaboration, he points to some of the evidence that was actually given in the trial. Dr Hay, in evidence-in-chief said "I questioned whether he was delusional regarding the affairs that his wife was having and whether he might have morbid jealousy" (tp 1316). He also points to a portion of his cross-examination of Dr Hay: "Q. There is an issue, you said that you were concerned whether I was, it was about morbid jealousy? A. Uh-huh. Q. If there are two statements to the police where the-- HER HONOUR: No, Mr Cvetkovic, I've told you how to ask questions of the witnesses and how not to. ACCUSED: Yes. HER HONOUR: And it's not for this doctor to say whether as a matter or fact there was a relationship or not because you know that's not an issue to be determined in this trial. She can only say what you told her, what he clinical observations were. ACCUSED: If a patient would be able to show a-- HER HONOUR: No, I'm not going to allow that question. ACCUSED: If I were able to show at that time a document-- HER HONOUR: No, I'm not going to allow that question." (tp 1322-3) 288 The Appellant also points to evidence-in-chief from Dr Nielssen. Dr Nielssen said that in the course of forming an opinion he had conducted a review of the Justice Health medical records, including Dr Hay's notes. Dr Nielssen summarised some of those notes as "he was described as mildly disorganised in his speech and thought to be delusional regarding his wife's affairs." The Appellant tried to cross-examine Dr Nielssen concerning whether the belief was really delusional, but, consistently with the ruling that Judge Murrell had made, Judge Sweeney would not permit that line of questioning. 289 The evidence of Dr Hay to which the Appellant points should in any event be assessed in the context of the entire question and answer of which it forms part: "Q. Doctor, what observations did you make of him at the time you were talking to him? A. I, I'll read out my mental state exam. 'A tall, thin Caucasian man recent wound to the neck and bruising around his temples. Obvious discomfort with moving and speaking. Moderate eye contact, limited facial expression, although tearful initially. Limited rapport. His speech was soft, heavily accented and difficult to understand at times with increased amount of decreased rage. He said his mood was terrible. "I am a monster". His affect was flattened, restricted and inappropriate.' And an example I gave of that is that he appeared remorseless when speaking about domestic violence, including when he beat his wife for five days but then would profess his love to her. I said that he had mild-formal thought disorder, and form of thought is the way we put our thoughts together and the way the conversation comes out, in that I thought he was rambling and very circumstantial. And he was a difficult historian because of this but I had noted, I was on call and my telephone was constantly going off so I had to continually leave the room which also greatly affected the rapport and made it difficult for the history. 'He was often perseverating on marital issues and difficulties with employees'. I questioned whether he was delusional regarding the affairs that his wife was having and whether he might have morbid jealousy . There were repeated things [sic: themes?] of victimisation, although he denied saying, when I actually asked him, he denies ideas of reference thought alienation, denied ongoing suicidality although recent behaviour is not in keeping with this. He denied any abnormality of perception. His cognition I said he appears alert and orientated and appears of moderate intelligence. Inside he felt he was depressed and is willing to take treatment. Does not feel he acted irrationally or inappropriately regarding the basis for his beliefs of his wife's affairs and I said that his judgment was impaired." (tp 1315-6) (emphasis added) 290 The italicised portion of Dr Hay's evidence is just one of numerous factors that Dr Hay took into account in forming an opinion about his mental state on the day she examined him (12 June 2007 [[136] above]). Further, her view concerned whether he had an adequate basis, then, for his belief that his wife was having an affair. Any statements that had been made to the police could not have been part of a basis that he then had for those beliefs. 291 Even before us, there was no clear articulation of the way in which using the Appellant's statements about his wife having affairs only as evidence of his state of mind, and not permitting exploration before the jury of the topic of whether she had actually had affairs, might be unfairly prejudicial to the accused, or misleading or confusing to the jury. Nor has there been any articulation of why it is that the judge's reasons for imposing the section 136 limitation ([286] above) are wrong. The Appellant's case about what it was that had tipped him into a state of automatism was not dependent upon whether his belief about her having had affairs was true or false. 292 Further, an appellate court is justified in setting aside a trial judge's decisions concerning whether section 136 should be applied to evidence only if persuaded that that decision was erroneous. Whether a judge's decision on such a topic is erroneous depends in large part on the submissions that have been made to the judge. Here, nothing was said to Judge Murrell about any danger arising from a limitation of cross-examination about existence of any affairs so far as the jury's evaluation of the evidence concerning the accused's mental state was concerned. 293 There might sometimes be some matters bearing upon a possible exercise of a section 136 discretion that are so obvious that a trial judge should have them in mind, even if his or her attention has not been specifically drawn to them. However, the present is not one of those cases. Ground 2(e) – Refusal to Admit Reasons for Judgment in other Cases as Evidence 294 The Appellant sought to tender the reasons for judgment delivered in five cases in which a defence of non-insane automatism had been raised. The five cases were Steven Vernon Hall (1988) 36 A Crim R 368; Kevin Barry Nolan v The Queen (WACCA, 22 May 1997); R v Leonboyer [2001] VSCA 149; R v Falconer (1990) 171 CLR 30 and Andrew John Hawkins v The Queen (1994) 179 CLR 500. Each of these was a decision of an appellate court. He sought to tender these reasons for judgment because they contained accounts of expert evidence that had been given at the trials from which the appeals arose. That evidence concerned the nature of non-insane automatism, and the circumstances that could lead to it. He wanted to argue that, even though none of the expert evidence that had been given at his own trial was to the same effect as some parts of the expert evidence in the five cases in question, that account of the evidence in those five cases gave rise to an argument that he was suffering from non-insane automatism at the time he stabbed Mrs Cvetkovic. Previous Reasons for Judgment Admissible Under Section 65(3)-(6)? 295 One basis upon which he submitted the evidence was admissible was that it fell within section 65(3)-(6) Evidence Act. Those sections provide: "(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording." 296 All of those provisions hinge on section 65(3). I will assume, for the purposes of the argument, that the various defendants in the proceedings in which the doctors in question gave evidence, cross-examined the doctor about his evidence, or had a reasonable opportunity to do so. However, that is not enough to attract section 65(3). The proceeding in which the Appellant was seeking to have section 65 applied was his own trial. It was the Appellant who counted as "the defendant in the proceeding to which this section is being applied". There is no reason to believe that the Appellant in the present proceeding ever cross-examined the doctors who gave evidence in the earlier cases, or had a reasonable opportunity to do so. That is a sufficient reason for section 65(3)-(6) not having been applicable. 297 As well, section 65(1) provides: "This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact." 298 There was no evidence that the doctors who gave evidence in the previous cases were not available to give evidence in the present case. Thus, an essential prerequisite for admissibility under section 65(3)-(6) was absent. 299 Further, section 65 appears in Division 2 of Part 3.2 of the Evidence Act. That Division runs from section 62 to section 68 inclusive. Section 62 includes: "(1) A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact. (2) A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact." The Evidence Act itself refers to the limited subcategory of hearsay that falls within section 62 (and thus within Division 2 of Part 3.2) by the convenient title "first hand hearsay" . 300 The accounts of evidence contained in the judgments that the Appellant sought to tender are not first hand hearsay. Each of them is a statement by an appellate judge, about the evidence that a doctor gave at a first instance trial at which that appellate judge was not present. It is inevitable that the appellate judge's knowledge of the representation made by the doctor at the trial is based upon either a transcript of evidence given at the trial, a notation either in the transcript of the trial or by the trial judge's associate that a written report was admitted into evidence at the trial, or (if the doctor's evidence was taken into account by the judge on sentence) in the transcript of the trial judge's remarks on sentence. That the statements in the judgments about the doctors' evidence are not first hand hearsay is a separate reason for them not falling within section 65(3)-(6). Previous Reasons for Judgment Admissible Under Section 65(8)(b)? 301 Alternatively, the Appellant submitted that the evidence was admissible under section 65(8)(b). Section 65(8) provides: "The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation." 302 The meaning of section 65(8)(b) is not constrained by the meaning of para (a) of section 65(8). Rather, the two paragraphs provide alternative means of proof of the making of the previous representation. Para (a) is concerned with the means of proof involved in obtaining evidence from a person who saw, heard or otherwise perceived the representation being made. Para (b) is concerned with a means of proof by tender of a document. Thus, para (b) can come into operation only when any other evidentiary restrictions on proof by tender of a document (such as proof of authenticity) are overcome. 303 It is of no ultimate significance whether the Appellant could prove the authenticity of the five sets of reasons for judgment that he sought to tender. That the statements in those judgments about the evidence that doctors gave at the trials is not first hand hearsay, and that section 65(1) has not been complied with, are each a sufficient reason why section 65(8) does not licence the tendering of the judgments. Assistance from Section 157 in Showing Admissibility of Previous Reasons for Judgment? 304 I should, however, mention how the Appellant submitted that proof of authenticity of the judgments should be dealt with. Section 65(6) provides three different routes via which evidence of the making of a representation to which subsection (3) applies may be adduced. None of those route was availed of at the Appellant's trial. Further, no provision analogous to section 65(6) exists concerning the route to admissibility through section 65(8). 305 As I understand the argument the Appellant put both at the trial and on appeal, the reasons for judgment can be tendered under section 157 Evidence Act. It provides: "Evidence of a public document that is a judgment, act or other process of an Australian court or a foreign court, or that is a document lodged with an Australian court or a foreign court, may be adduced by producing a document that purports to be a copy of the public document and that: (a) is proved to be an examined copy, or (b) purports to be sealed with the seal of that court, or (c) purports to be signed by a judge, magistrate, registrar or other proper officer of that court." 306 While the Dictionary to the Evidence Act contains a definition of "public document", the Crown does not raise any point that the reasons for judgment of an Australian court do not constitute a "public document" that falls within the chapeau to section 157. The Appellant submits that section 157 itself recognises that "a judgment" of an Australian court can be a public document. In these circumstances I would prefer to reserve for further consideration whether "a judgment" in section 157 extends to reasons for judgment. I note though, that there are numerous legal contexts (eg, rule 36.2 Uniform Civil Procedure Rules 2005) in which a distinction is drawn between a judgment, and the reasons for judgment. At least some judgments can be entered (UCPR 36.11), or set aside (UCPR 36.15), or enforced, and some foreign judgments can be registered – processes not appropriate for reasons for judgment. See also National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1988) 17 NSWLR 223. However, section 129(3) Evidence Act specifically contemplates that there might be at least some circumstances in which "published reasons for a decision" might be admitted or used in a proceeding. The Crown in the present case did not seek to draw any distinction between judgments and reasons for judgment. Hence, I shall proceed by assuming, without deciding, that "a judgment" in section 157 includes reasons for judgment. 307 Section 157 enables a judgment, and the other types of document referred to in the chapeau of section 157 to be proved by tender of a copy, if that copy satisfies one or other of paras (a), (b) or (c) of section 157. 308 The documents that the Appellant tendered were not authenticated in any of the ways listed in paras (a)-(c) of section 157. Rather, they were the type of reasons for judgment that anyone can download from one of the various sites containing reported judgments on the internet. That would provide a sufficient reason why the judge's decision to reject them was right. However, as it is highly likely that the Crown would have conceded their authenticity if asked to do so, I will not rest my decision on that ground. 309 In part of his submissions, I had the impression that the Appellant was submitting that section 157 provided a stand-alone ground for the admissibility of reasons for judgment. I do not accept that that is so. Section 56 Evidence Act provides: "(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible." 310 The statement in section 56(1) that relevant evidence is admissible, is qualified by "except as otherwise provided by this Act". The statement in section 56(2) that evidence that is not relevant is not admissible is subject to no such qualification. 311 The statement of the hearsay rule in section 59(1) is: "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation." 312 When sections 60-75 state exceptions to the hearsay rule, they do so expressly, by making statements in the form "the hearsay rule does not apply to …". 313 Assuming without deciding for the purpose of the present argument that the statements of the experts in the other cases would be relevant in the Appellant's trial, the combined effect of section 56(1) and section 59(1) is that that evidence, being hearsay, is admissible only if it can be brought within one of the exceptions to the hearsay rule. 314 Section 157 appears in Part 4.3 of the Act, which is entitled "facilitation of proof". Section 35(1) Interpretation Act 1987 provides: "(1) Headings to provisions of an Act or instrument, being headings to: (a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or (b) Schedules to the Act or instrument, shall be taken to be part of the Act or instrument." 315 Consistently with that heading, section 157 is concerned with facilitation of proof of facts that are otherwise relevant and admissible. For the reasons I have already given, the judgments were not admissible under section 65. The trial judge was right to reject them. Other Provisions Not Relied On 316 Though neither party mentioned them in the course of argument, I should here record that sections 91-93 Evidence Act contain specific provisions that severely limit the circumstances in which evidence of a decision, or a finding of fact in court proceedings can be admissible to prove the existence of a fact that was in issue in that proceeding. Section 178 provides its own special means for proving the outcome or existence of court proceedings. Those provisions might possibly have some relevance, if the question of admissibility of reasons for judgment in other cases ever arises again. I place no reliance on them in the present case. 317 For these reasons, I would reject ground 2(e). Ground 2(f) – Leave to Recall a Witness for Further Cross-Examination 318 On Wednesday, 24 June 2009, the 20th day of the trial, the following exchange occurred between the Appellant and the judge: "ACCUSED: And also I would like to recall witness Hayes, Thow, Homburg and Henderson. HER HONOUR: No, no, no we've been through that before. You cross-examined them, I'm not allowing that." 319 These witnesses were four of the five eyewitnesses to the stabbing. Messrs Hayes, Thow and Homburg had been called by the Crown on 11 June 2009, the 13th day of the trial. Mr Henderson was called on 15 June 2007, the 14th day of the trial. The Appellant had cross-examined each of them. 320 The Appellant reminds us that section 46 Evidence Act provides: "(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief, or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence." 321 The Appellant made no submission to the judge concerning why he wished to recall the witnesses, or why it was appropriate for the judge to exercise the discretion that section 46 conferred upon her. 322 In his submissions to us, the Appellant submitted that he asked for leave to recall the witnesses "due to discrepancies and inconsistencies that emerged in the course of other witness' evidence". He gave no particularisation of who the relevant "other witnesses" were, or what were the "discrepancies and inconsistencies" that he relied upon. 323 The decision of the judge not to grant leave for the witnesses to be recalled is one that can be overturned only within the limits laid down by House v The King. The Appellant has shown no basis for overturning it. I would reject this ground of appeal. Ground 2(g) – Rejecting Entry in Constable Foscholo's Police Notebook 324 Constable Michael Foscholo attended the Royal North Shore Hospital just after midnight in the early morning of 7 June 2007. He gave evidence at the trial on 23 June 2009, the 19th day. On the previous day the Appellant, clearly dissatisfied with rulings that Judge Sweeney had made, and her conduct of the trial, announced, "I have decided not to cross-examine any further witness from the Prosecutor" (tp 1129), and "my decision applies to all witnesses of the Crown" (tp 1131). At the start of the nineteenth day he confirmed that "yesterday I withdrew from these proceedings and I am only in these proceedings on your order and warrant. So my position that from yesterday until the verdict I am not participating in these proceedings …" 325 When Constable Foscholo was called later in that day, he gave evidence-in-chief by reading from a statement he had made. His evidence included: "At 3.05am Leading Senior Constable Lewis and I had a conversation with the surgeon registrar, Dr McLeod, which is recorded in my official police note book [number], page 45." (tp 1184) 326 Constable Foscholo's oral evidence cast no light on the contents of that conversation with Dr McLeod. There was no cross-examination. Constable Foscholo was excused. 327 At the start of the twentieth day, 24 June 2009, the Appellant told the judge that he now wished to cross-examine various witnesses, including Constable Foscholo. The judge enquired about the subject matter of the cross-examination, and was told that it was about records in the official police book concerning Mrs Cvetkovic's injuries. The following exchange occurred: "ACCUSED: Just a moment, your Honour. There is police notebook record, [number] and there is a time 3.05am and it says 'Surgeon registrar Dr Nick McLeod states the victim has an injury to her neck, a drainage VNF tube in her left lung due to puncture wound, approximately twenty wounds to the back left shoulder, the upper left seven wounds and to the upper abdomen one.' One to the upper, upper abdomen. And Officer Foscholo refers in paragraph 7-- HER HONOUR: So you take issue with the number of injuries or stab wounds your wife had do you? ACCUSED: As the time progress-- HER HONOUR: Is that an issue that you're raising in the trial.? ACCUSED: It is—" (tp 1258) 328 At that stage the matter was left on the basis that further enquiries would be made about recalling Constable Foscholo. 329 Constable Foscholo was recalled on 26 June 2009, the twenty-first hearing day. The Appellant sought to have Constable Foscholo prove the contents of the entry in his police notebook. When the Crown Prosecutor objected, the jury was sent out. The Prosecutor then read the judge the entry in the notebook. The exchange continued: "Your Honour we have had two doctors called in this trial, we have one recalled for cross-examination today, we have got another one who may or may not be able to attend, what is the purpose of questioning this witness in relation to that? If it is going to be suggested that means that there is only one cut to her neck, it is going to be misleading to this jury, when the medical records are available, the photographs are available, so my submission is its misleading and it is only time wasting. HER HONOUR: Mr Cvetkovic what is the point of this question? ACCUSED: The point is there are consistent and inconsistent statement, the point is that this representations were made by the surgeon who treated her for general injuries and by the surgeon who gave this statement about half an hour after the completion of intervention. The issue I already stated and-- HER HONOUR: Well it is hearsay, you can't ask this constable about what Dr McLeod said, whether it was accurate or not, so no I won't allow you to pursue that line of questioning, so bring the jury back in please." (tp 1451) 330 On 29 June 2009 the Crown Prosecutor told the judge that Dr McLeod was working at a hospital in country New South Wales, was not able to attend, and had not been subpoenaed. The Appellant then submitted that that provided stronger reason for the notebook record from Constable Foscholo to be included in the evidence. The following exchange occurred: "HER HONOUR: Well look, what does it go to? ACCUSED: It's about one injury to the neck. HER HONOUR: One, two, or three, or four, what difference does it make? I mean, if-- ACCUSED: Your Honour, you – the answer is up to yourself, I can not advise on that. For me as a layman, as a medical practitioner, as – it is extreme difference. It is the difference between one and four, it is mathematical, it is logical, it is-- HER HONOUR: Well all along it seems you've disputed one injury on the neck. Given that there are 21 in the back and six on the chest, I don't see that one less on the neck that you keep asserting makes a lot of difference. ACCUSED: The truth is the truth. And if we departure from the truth for any reason we shall end with injustice as we are-- HER HONOUR: Well we had Dr Appleton back for cross-examination and you're having Dr Montague come back for cross-examination, you can take it up with him. ACCUSED: I ask Dr Appleton in her statement she does not say multiple injuries to the neck-- HER HONOUR: Yes, you showed her Dr McLeod's chart, you can do that with Dr Montague if you wish. It's the best we can do in the circumstances." (tp 1497) 331 The Appellant said, concerning Constable Foscholo's notes: "ACCUSED: It is admissible on res gestae, it is admissible on the business document, it is admissible on original evidence, whether it is through common law or through Uniform Evidence Act , it is admissible. HER HONOUR: Madam Crown, was that a statement that Dr McLeod signed in Constable Foscholo's notebook? CROWN PROSECUTOR: No, your Honour. No, you Honour. It's notes that the officer has made in his notebook, it is not signed by the witness at all. HER HONOUR: Well it's not admissible then, Mr Cvetkovic. What's the next matter you want to raise? ACCUSED: Evidence to be admissible does not need to be signed. HER HONOUR: I've just ruled on that. What's the next matter you want to raise?" (tp 1497-8) The Appellant submits that this ruling was wrong. 332 If there was evidence that Dr McLeod had operated on Mrs Cvetkovic for the purpose of treating her various injuries, or had examined her in a manner where he personally observed and counted her injuries and their location, any recording by Constable Foscholo of what Dr McLeod told him about the number and location of injuries would be first hand hearsay, and as such might possibly be admissible. There was evidence that Dr McLeod was on duty at the hospital on that night in question. Dr Appleton, who was acting Deputy Director of Medical Services at Royal North Shore Hospital at the time, gave evidence (tp 1388 ff) that I read as identifying Dr McLeod as a surgeon who operated on the Appellant. However, the cross-examination of Dr Appleton concerning the injuries sustained by Mrs Cvetkovic (tp 1393) does not identify the surgeon or surgeons who operated on her. 333 Dr Appleton's evidence was given on the basis of what was revealed by the hospital records, rather than her personal knowledge. The Appellant's cross-examination of Dr Appleton, concerning Mrs Cvetkovic's injuries, included the following: "Q. In that statement you described the number of lacerations that the victim sustained, you described two lacerations to left shoulder, six lacerations or six wounds to the chest and 21 wounds to the back. A. That is correct. Q. You did not describe the number of injuries to the neck. A. It was described as multiple wounds to the neck." … Q. So in your report yo did not state that the victim had specifically multiple injuries to her neck? A. No I didn't specify the number of wounds to the neck, that is correct." (tp 1393) 334 Dr Andrew Montague was at the time of giving evidence Acting Director of Medical Services at Royal North Shore Hospital. He gave evidence based on the hospital's medical files concerning Mrs Cvetkovic. He was specifically asked for the injuries sustained and the location on the body that they were. So far as injuries to the neck were concerned, he said that: "On the left side of the neck there were three lacerations to the anterior triangle of the neck … two of these were anterior to the sternocleidomastoid and one of these lacerations was penetrating the carotid sheath." (tp 1217) 335 As well, on the "… left neck … there was a posterior laceration extending deep in posterior to the sternocleidomastoid penetrating the scalenus medius and scalenus anterior, which are two muscles in the posterior triangle." (tp 1217-8). 336 He confirmed there were four separate injuries to the neck area (tp 1223). There was no cross-examination of Dr Montague when he was first called on 23 June 2009. However, he was recalled on 29 June 2009, at a time after Judge Sweeney had rejected for the second time the statement in Constable Foscholo's notebook. The Appellant cross-examined him, and established that Dr McLeod was a surgeon who had operated on Mrs Cvetkovic. Dr Montague said that his previous evidence had been based on drawings and notes in the medical records. The Appellant took Dr Montague through various records in the creation of which Dr McLeod had been involved, Dr Montague identified six wounds to the chest, and 21 lacerations to the back. There was a record of a separate wound to the left axalla (underneath the armpit), but that record appeared in some preliminary nursing notes and no note of such a wound appeared in Dr McLeod's operating notes. Dr McLeod's notes showed only one laceration to the neck. 337 The cross-examination of Dr Montague also established that Mrs Cvetkovic's neck had been operated on by Dr Daniel Novakovic, a specialist ear, nose and throat surgeon. Dr Novakovic's notes showed an injury to the neck anterior to the sternocleidomastoid, and another posterior to the sternocleidomastoid. However, his written notes relating to the operation referred to "wound" [in the singular] to sternocleidomastoid. Dr Montague said that there were two separate "pictures" in Dr Novakovic's drawings. Three lacerations to the anterior triangle of the neck were shown, of which two were anterior to the sternocleidomastoid and one of these was penetrating the carotid sheath. As well, there was "a posterior laceration extending deep to the – deep and posterior to the sternocleidomastoid, which would total four." Dr Montague did not move from that position in the rest of his evidence. Notebook Entry Admissible as First-Hand Hearsay? 338 Once it was established that Dr McLeod had operated on the Appellant, the occasion arose to look more closely at whether the conditions for the notebook entry being received as first-hand hearsay had been met. 339 Section 62 Evidence Act states that, for the purpose of sections 62-68, a "previous representation" refers to "a previous representation that was made by a person who had personal knowledge of asserted fact." I would infer that Dr McLeod's statement to Constable Foscholo about aspects of the operation he had just carried out himself would meet this test. 340 Section 65 applies in a criminal proceeding "if a person who made a previous representation is not available to give evidence about an asserted fact." Clause 4 of the Dictionary to the Evidence Act provides: "(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead, or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or (c) it would be unlawful for the person to give evidence about the fact, or (d) a provision of this Act prohibits the evidence being given, or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact." 341 Of the various matters listed in subclause (1), the only potentially relevant ones here (e) and (f). The "party seeking to prove the person is not available" was the Appellant. In my view he has not established that he has taken all reasonable steps, of the type referred to in (e) and (f) to have Dr McLeod present to give evidence. That is a sufficient reason why the evidence is not admissible under section 65. 342 Section 65(2) provides: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable." 343 The chapeau to subsection (2) requires the evidence to which it refers to be "given by a person who saw, heard or otherwise perceived the representation being made". Thus, section 65(2) does not apply to the tender of documentary evidence unless there is a person giving evidence who saw heard or otherwise perceived the document being made: R v Mrish (NSWSC, Hidden J, 4 October 1996 unreported); Conway v R (2000) 98 FCR 204 at [149]-[154]. The Appellant was seeking not only to tender the notebook entry, but also to ask Constable Foscholo questions about its content. As Constable Foscholo heard the previous representation by Dr McLeod, his oral evidence about its contents would comply with that requirement. Thus while the tender of the notebook entry would not comply with the chapeau to section 65(2), Constable Foscholo's oral evidence about the representation would comply with it. Further, as Kirby J pointed out in R v Suteski (No 4) [2002] NSWSC 218; (2002) 128 A Crim R 275 at [34] section 65(2) imposes no restriction on the form in which oral evidence can be given. Thus at least in some circumstances it might be possible for the oral evidence to take the form of confirming the truth of the contents of the document, which is then tendered to make sense of the oral evidence. 344 While I would rather not decide whether Dr McLeod had a duty to talk to Constable Foscholo (and it is unnecessary to do so), it is likely that what Dr McLeod told Constable Foscholo would have met the requirements of section 65(2)(b) and (c). Thus the only reason on which I rely to decide that section 65(2) does not make the constable Foscholo's oral evidence about the representation admissible is the lack of proof of the unavailability, within the meaning of the Act, of Dr McLeod. 345 The alternative means of proof is available to the defendant in the criminal trial under section 65(8). While section 65(8)(a) contains, like section 65(2) a requirement that the evidence of the previous representation is "given by a person who saw, heard or otherwise perceived the representation being made", there is an alternative of: 65(8)(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation ." 346 That seems to be met by Constable Foscholo's note of what Dr Montague told him. Thus it is only lack of proof of Dr Montague's unavailability that prevented tender of the diary entry under section 65. 347 If a person who made a previous representation is available to give evidence about an asserted fact, section 66 sometimes allows evidence of a previous representation by that person to be given. However, the only circumstance where section 66 allows that possibility is where the person who made the representation is called. That was not the case here, so section 66 does not provide a route to admissibility of the diary entry. 348 Thus the contents of the diary note were not admissible as first-hand hearsay. Notebook Entry Admissible as a Business Record? 349 The Appellant submitted that the entry in Constable Foscholo's notebook was admissible as a business record. Section 69(2) Evidence Act contains an exception to the hearsay rule concerning some categories of representation contained in business records. However section 69(3) provides: "Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding." 350 The overwhelming inference is that the entry in Constable Foscholo's notebook was made in connection with an investigation relating or leading to a criminal proceeding. The criminal proceeding in question is that against the Appellant, arising from the stabbing of Mrs Cvetkovic. Thus section 69 provides no support for the admissibility of the entry. Notebook Entry Admissible as Reputation Evidence Under Section 73? 351 The Appellant also submits that the entry was admissible under section 73 Evidence Act. It provides: "(1) The hearsay rule does not apply to evidence of reputation concerning: (a) whether a person was, at a particular time or at any time, a married person, or (b) whether a man and a woman cohabiting at a particular time were married to each other at that time, or (c) a person's age, or (d) family history or a family relationship. (2) In a criminal proceeding, subsection (1) does not apply to evidence adduced by a defendant unless: (a) it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted, or (b) the defendant has given reasonable notice in writing to each other party of the defendant's intention to adduce the evidence. (3) In a criminal proceeding, subsection (1) does not apply to evidence adduced by the prosecutor unless it tends to contradict evidence of a kind referred to in subsection (1) that has been admitted." 352 No elaboration was given of why the entry fitted within section 73. I am conscious, however, that evidence of previous incidents of violence by the Appellant to Mrs Cvetkovic was allowed in the trial on the basis of it being "relationship evidence". 353 In my view the notebook entry does not fall within section 73. Before any evidence falls within section 73, it must be evidence of "reputation concerning" one of the subject matters listed in section 73(1)(a)-(d). While "reputation" is concerned with beliefs held about matters relating to a person, rather than the truth of those matters relating to a person, a belief would need to be held by more than one person before it rose to the status of "reputation". It may be that a belief would need to be held by a considerably more than one person before it amounted to a "reputation", but it is unnecessary to explore that matter. The note in question proved nothing more than the belief of Dr McLeod that Mrs Cvetkovic had "an injury to her neck". 354 Further, that belief is not one concerning any of the matters listed in section 73(1)(a)-(d). In its context, the sorts of matters that are referred to by the expression "family relationship" has as its paradigm matters such as who is married to whom, and who is a parent or sibling of whom. It is unnecessary to explore whether the notion "family relationship" in section 75(1)(d) extends any wider than this, beyond saying that a recording of injuries sustained by a person with whom a relevant person is in a family relationship is beyond the scope of "… evidence … concerning … a family relationship". 355 In these circumstance, it is unnecessary to explore the role that section 73(2) plays in the present case. Notebook Entry Admissible as Res Gestae? 356 The Appellant also seeks to support the admissibility of the notebook as part of the res gestae. The entry was made at a time and place too remote from the events that were the subject of charges 2 and 3 to count as part of the res gestae. Application of Proviso in Section 6(1) Criminal Appeal Act 1912 357 After writing the rest of my judgment, I returned to this ground of appeal, and considered it again in the light of all the evidence. I have decided that even if I were wrong in the conclusion I have come to concerning the admissibility of the notebook entry, failure to admit it would involve a situation where "no substantial miscarriage of justice has actually occurred", within the meaning of section 6(1) Criminal Appeal Act 1912. The expression "an injury to her neck" is inherently imprecise – an injury to a person's neck can comprise several different lacerations. As well, Dr McLeod was not the doctor with prime responsibility for treating Mrs Cvetkovic's neck. Further, the evidence given by Dr Montague was at a level of detail far superior to that of Constable Foscholo's note, and, in so far as I have quoted it, was not challenged in the course of Dr Montague's cross-examination. As well, there were clear photographs of Mrs Cvetkovic's injuries, from which the jury could form their own view about the nature of the injury to her neck. 358 For all these reasons, I would reject ground 2(g). Ground 2(h)(I) – Rejection of the "Never Sent" Email 359 Mr Smith was the court officer who was appointed pursuant to section 293 Criminal Procedure Act to cross-examine Mrs Cvetkovic on the Appellant's behalf. The procedure adopted was that, while Mr Smith asked questions of Mrs Cvetkovic, the Appellant himself dealt with any objections the Crown raised to particular questions. After Mr Smith had cross-examined Mrs Cvetkovic about various communications that had passed between the Appellant and herself, Mr Smith requested her to look at a particular document that he identified by a number. The Crown immediately objected, on the basis that it was a document that was never sent. The judge looked at the document. In the course of a brief exchange about its admissibility, the following exchange occurred: "ACCUSED: It wasn't sent but it contains information-- HER HONOUR: No, you can't ask her about a document you never sent to her. I disallow that question. She can't be asked about simply what's in your mind or what you wrote in a document for yourself. Yes, go on Mr Smith with the next question, please." (tp 460) 360 In the course of his own evidence-in-chief the Appellant endeavoured to tender that document. The judge rejected the tender, saying: "Well you can't tender something that wasn't sent to somebody, it's simply writing your thoughts down. We've been through this before." (tp 1715) 361 The document in question is addressed to Mrs Cvetkovic, and in the line in the header for date says, "never sent". The text of the email, reproducing original spelling, is: "We have not spoken for almost three weeks now. During these three weeks I sent to you 4 emails and at least one SMS or a vice message per day (at your Novogen's mobile phone and your office phone at Novogen). I hopped to hear something from you, but you did not call me back nor replied to my messages. I was balancing between my love for you, concerns about your wellbeing, and accuesations and assoults:* "… you have done enough damage can't you you just stop and move on", (1) at 18:13:17), "… the fax and email you sent will ruin mum's career it was unnecessary and untrue", (1) at 18:21:58), "… nasty and stalking people.", (1) at 18:41:00), or even "You have ruined everything I hope you are happy and I don't want to know you anymore you are a piece of Shit I hope you die", (2) at 16:17:54) Dragan *As Aleksandra wrote to me in her SMS messages, from [******730] to [*******002], on (1) 22/04/07, and (2) 14/05/07." 362 Very soon after the judge had rejected the tender, the Appellant continued giving his evidence: "WITNESS: Yes. Basically, after not having contact and neither my wife nor my daughter responding to my SMS messages, voice messages that I was leaving emails for several weeks I – and in my estimate and from the notes from one email that I wanted to sent to my wife and my daughter, but I didn't send, or at least to my wife, and that document I received from the prosecutor as a part-- CROWN PROSECUTOR: Your Honour, I object to this. HER HONOUR: Mr Cvetkovic, please. You can't tender documents that you didn't send. Where you got it from is completely irrelevant, stop talking about it and move on." 363 At no time did the Appellant make any submission to Judge Sweeney about a basis upon which the "never sent" email might be admissible. On this appeal, he supports its admissibility by a reference (without further elaboration) to the following definitions in the Dictionary of the Evidence Act: " previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced." " prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness." " representation includes : (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated." 364 It can be accepted that the "not sent" email is a "representation" within either para (c) or (d) of the definition of "representation". It can also be accepted that it is a "previous representation" within the defined meaning of that term. However unless the email could be brought within one of the exceptions to the hearsay rule contained in section 60-75 Evidence Act, section 59(1) would make such evidence inadmissible to prove any of the facts that it can reasonably be supposed the Appellant intended to assert by the email. No particular exception to the hearsay rule is relied on by the Appellant. 365 In my view, the responsibility of a court to provide some measure of assistance to a self-represented litigant does not extend as far as requiring me to itemise, and consider seriatim, each of those exceptions to the hearsay rule. 366 In any event, ultimately the tender of the "never sent" email was not pressed by the Appellant: "HER HONOUR: The fact that you sit at home and write something doesn't mean you can cross-examine her about your document, but you can put the facts that are contained in the document to her if they're relevant facts. So if you want to say as at whatever date it is we hadn't spoken for three weeks you can ask her that, hear what she says. If there are other relevant facts that you want to put to her you can put them, but don't refer to the document. ACCUSED: Could we consider this document-- HER HONOUR: No, we can't consider it at all. It's your document, you wrote it, you wrote it and didn't send it anywhere, particularly to her, so it's no more than a recording of your thoughts. She couldn't be asked to comment about your thoughts, she can't be asked to comment about your thoughts just because you wrote them down. You can ask her about the facts that you recorded, if they were relevant facts, that's as far as it goes. I've said it twice, Mr Cvetkovic, I'm not going to say it again. ACCUSED: No, I understand. HER HONOUR: All right, good." 367 Further, as the judge explained to him, the Appellant had the opportunity to give oral evidence, in which he explained to the jury his actions that were relevant to the charges, and any communications he had with Mrs Cvetkovic or Aleksandra that were relevant to the charges. Further, the "never sent' email relates to matters that are some distance removed from the subject matter of the charges. Ground 2(h)(II) – Failure to Admit Certain Medical Records and Correspondence with Lawyer 368 This ground of appeal concerns a failure of the judge to admit the Appellant's medical records from Royal North Shore Hospital and Justice Health, and her failure to admit a four-page handwritten document entitled "summary of events 1998-2007". The latter document was part of a letter that the Appellant wrote to Ms Louise Jardim on 30 July 2007. Ms Jardim was a lawyer who was acting for him concerning the charges arising from the events of 6 June 2007. 369 Section 29(2) and (3) Evidence Act provide: "(2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form. (3) Such a direction may include directions about the way in which evidence is to be given in that form." 370 The Crown closed its case on 1 July 2009, the twenty-fourth day of the trial. After the Appellant had indicated he wished to give evidence, the judge, pursuant to section 29(2) gave a direction that included: "HER HONOUR: … You will give your evidence by narrative because there is no-one here to ask you questions but that doesn't mean that you can give evidence about inadmissible subjects. The same rules apply, you are not to address inadmissible subjects. So if you stray into those areas I will cut you off. ACCUSED: How about evidence that you did not allow me in relation to my statements to the doctors from the hospital and prison? HER HONOUR: You can say what you told to doctors. You can't comment on what that means." 371 The Appellant told the judge soon after that he could not give his evidence without documents, and he had "two bags full with the documents". The following exchange then ensued: "CROWN PROSECUTOR: Your Honour, in relation to the idea of the accused using documents giving evidence, he's got to give evidence viva voce so if he thinks he's going to be reading documents-- HER HONOUR: Yes, you can't be reading from documents. ACCUSED: What I said was that I would quote from my records, my-- HER HONOUR: No, no, no, you've got to give evidence from your memory. If you want to tender documents you can but you don't read from documents so if you're saying that what you don't have is documents to read from you don't give evidence reading from documents. ACCUSED: So would I be able to tender documents from Royal North Shore Hospital? HER HONOUR: It depends on what they are. Until you tender them and I know what they are, I don't know. ACCUSED: First thing-- HER HONOUR: No, no, no, I'm not going to make rulings in advance on the run. ACCUSED: I wouldn't be able to from my memory because-- HER HONOUR: You have to give evidence from your memory. You don't read from documents. I'm not talking about documents from other people, if you want to tender a document from the hospital you tender it. If the Crown doesn't object it goes into evidence, if the Crown objects I'll make a decision. But you don't read from other documents. ACCUSED: Yes, documents from hospital. HER HONOUR: No, no, no, no, no, you'll just say "I told a doctor this". You don't even have to tender the document, it's someone else's document. ACCUSED: Royal North Shore Hospital and Justice Health. HER HONOUR: No, no, they're a doctor's record of what their memory is of their note of what you told them. You give evidence of what you told them, that's how it should be done and you don't refresh your memory from looking at the documents, you give evidence from your memory. ACCUSED: My question is whether I would be able to tender these documents. HER HONOUR: Well I don't know until I know what they are, but if they are a note by a doctor of what you said to the doctor then probably I would think the answer is no. You give evidence of what you said to the doctor, not tender evidence of what the doctor's note-- ACCUSED: Just to give you a sample and so you will decide it is the sample I asked Dr Nielssen and it is quote-- HER HONOUR: Well I just told you, no. You don't produce a record of what someone else has made a note of that you told them. You give evidence of what you said to the doctor and you don't refresh your memory from looking at the doctor's note. You can say "On 7 June I told Dr X this", that's the evidence you give, that's the way you do it. You don't tender Dr X's note of what he says you told him because there's no way then of the jury assessing whether his note is accurate. ACCUSED: But that is copy of original document. HER HONOUR: Yes, but the jury don't know whether the doctor's made an accurate note and they're never going to see the doctor to ask him. You give evidence of what you told the doctor, you don't tender evidence of the doctor's note of what you told him, that's not the proper way to do it. ACCUSED: Just for the record it is business document, it is original evidence. HER HONOUR: Can I not make this any clearer? It is not admissible. ACCUSED: And-- HER HONOUR: Mr Cvetkovic, I'm not going to sit here and repeat myself, you give evidence of what you said to the doctor, you don't tender the doctor's note of what the doctor says you said. Who knows, the doctor might have misheard you, got it wrong, not remembered properly; we don't know when the note was made, whether it was made at the time he spoke to you, whether it's made afterwards, how close, whether he's interrupted in the meantime by an eight hour operation and was distracted. There's no way of the jury assessing the credibility and reliability of that note so it can't be admitted as a record of what you said. You must give evidence from your memory of what you said to these people. ACCUSED: This is corroborative evidence. HER HONOUR: I am telling you it's not admissible." 372 Insofar as the judge was telling the Appellant that she could not make a blanket ruling, and would need to consider documents one by one, she was right. 373 Insofar as there was a specific instance considered, of what the Appellant told Dr Neilssen, that is not in itself relevant evidence. Giving evidence about the truth or falsity of the matters that Dr Neilssen took as the basis of his opinion would be relevant, but the mere fact that the Appellant told Dr Neilssen something in May 2008, nearly three years after the date of the incident the subject of the charges, and at a time after he had started to propound that his actions were the product of automatism, was not shown to be relevant, let alone within an exception to the hearsay rule. Similarly his instructions to his lawyer, Ms Jardim, are hearsay not shown to be within any exception to the hearsay rule. 374 I would not uphold this ground. GROUND 3 – SUBSTANTIAL MISCARRIAGE OF JUSTICE 375 The Appellant submits that substantial miscarriage of justice arises from (A) the trial not being fair or in accordance with the law, (B) misdirection or inadequate directions to the jury, and (C) the nature of the evidence. Ground 3(A) – Unfairness of the Trial? 376 The Appellant submits that the trial judge and the prosecutor "turned into persecutors". He submits that the judge engaged in excessive interference on "crucial exonerating evidence on the appellant's state of mind and defence", misstated the effect of evidence, cut off questions and answers before they were completed, engaged in unwarranted criticism, wrongly disallowed questions, made misrepresentations of evidence and law, and unfairly undermined the Appellant's credibility throughout the trial. He submits that the trial judge's conduct was contumelious, showed wilful disregard for the rights of the appellant, for the law, and for the complaints of the appellant. He complains about the judge's interference during cross-examination. He submits that during submissions both the trial judge and a prosecutor made "subversive allegations" that the Appellant was engaging in "selective quoting", "misstating evidence" and "misleading the jury". 377 The Appellant makes this submission by reference to numerous examples. Many of them involve the same substance that the Appellant relied on concerning Ground 1, but recast as allegations of unfair conduct. It is not practicable to deal with them all expressly. 378 Having read the entire transcript, I am not left with the impression of unfair interference by the judge, or of the other improprieties of which the Appellant accuses her. The trial was a very long one, in which the Appellant represented himself. He had a fixed idea of the rightness of his cause, and of the rightness of legal submissions that he made to the judge. He could not accept rulings that had been made, either by the trial judge or by Judge Murrell at the pre-trial hearing. For example, he repeatedly sought to use medical opinions contained in reported cases as though they were evidence, and repeatedly endeavoured to get around the ruling that questions going to whether Mrs Cvetkovic had actually had an affair with Professor Husband were not to be asked. He repeatedly endeavoured to have the recording of the voice mail message that was not in English played to the jury, when there was no dispute that there was such a message, and no reason to believe that anyone on the jury understood Serbo-Croatian. He made accusations that evidence had been tampered with, when those accusations were baseless. When given an answer that was unfavourable to him in the course of cross-examining a witness he endeavoured not just to test the answer, but to put in substance the same question again. Unsurprisingly, the judge tried to keep a semblance of order in the way the trial was progressing. 379 The Appellant repeatedly complained to the judge that she was interrupting the presentation of his case, and doing so unfairly. He was shocked and affronted when the judge, after he had repeatedly ignored rulings she had made, raised (in the absence of the jury) the prospect of charging him with contempt. In his submissions in this Court the Appellant describes the judge's conduct in declining his requests to "speak to the Chief Justice" about the way the judge was conducting the case as "arrogantly insolent and wilful conduct". 380 On some occasions the Appellant misrepresented to witnesses' the evidence that they had given. An example occurs in the cross-examination of Ms Hayes: "Q. Then you described the incident using the following words 'I saw the man had his legs up and he was kicking her. I am not sure whether he was kicking her with both of his legs or just the one leg', would that be correct. A. Yes. Q. So what eventually you saw was two legs up? A. I can't say, I saw at least one leg up kicking her. The other one could have been turned toward her and not kicking her but I can't say for sure whether it was both or just one. Q. But according to your sentence, you said 'He had', 'The man had his legs up', that means both legs? A. Yes, because they were turned towards her, but I, from my memory it was, I can't say whether it was both kicking her but as one was turned towards, at least one was turned towards her kicking her, the other one was turned that same way. Q. So both legs were up? HER HONOUR: I think that's been asked and answered sufficiently, Mr Cvetkovic,. ACCUSED Q. It is not clear. If you could just confirm-- HER HONOUR: No, she's answered that sufficiently, please don't ask it again. ACCUSED Q. So you agree that both legs were up? HER HONOUR: No, Mr Cvetkovic, please don't ask it again. ACCUSED Q. You, in the following sentence you wrote 'I also saw him attacking with his hands but I couldn't make out if he was punching her or if he was armed with a weapon'? A. Uh-huh, yes. Q. That having both legs up and kicking-- HER HONOUR: No, please, don't ask that because that is not her evidence. ACCUSED Q. Your statement is that you were not-- HER HONOUR: No, please don't ask about legs up again, I've disallowed it so many times, I'm not going to say it again." 381 Another example of what the Appellant submits was excessive interference occurred when the Appellant was addressing the jury. The Appellant said: "In terms of the second alternative that specific intent or the aim would be that I wanted to cause grievous bodily and grievous bodily harm is something that is serious or permanent disfigurement of a person so I really – according to the charge it is suggested that I wanted to cause my wife serious or permanent disfigurement and-- HER HONOUR: Mr Cvetkovic, I'm going to ask you to stop there. Members of the jury, would you go out for a few minutes, please?" 382 In the absence of the jury, the judge told the Appellant that he was addressing the jury incorrectly on matters of law. He asserted he was correct, by virtue of the definition of "grievous bodily harm" in section 4(1) Crimes Act 1900. When the jury returned, the judge told them that anything the Appellant said on the law would be subject to any directions that she gave. The Appellant regards this as an improper interference with his presentation of his case to the jury. 383 In my view this interference by the judge in the submissions was right. The definition in section 4(1) Crimes Act is: "Grievous bodily harm includes (a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)." 384 When that is an inclusive definition, it was clearly incorrect for the Appellant to tell the jury that grievous bodily harm is something that is serious or permanent disfigurement of a person. 385 I will not deal in detail with each of the Appellant's complaints about the manner in which the judge conducted the trial. Having considered each of them, I do not consider that any of them provides a stronger ground for complaint than those that I have dealt with expressly. Furthermore, in any complaint about unfairness of the trial, where there is no clear example of judicial misbehaviour, the overall impression and flavour of the transcript is the most important thing. Having read the transcript, I am not left with the impression that the judge intervened excessively, or conducted the trial in an unfair fashion. Ground 3(B) – Misdirections or Inadequate Directions McKinney Direction 386 The Appellant submits that the trial judge erred in: (a) not directing the jury on the exculpatory evidence contained in the police interview of the Appellant, (b) not directing the jury on the reliability of the inculpatory but repudiated representation, and (c) not warning the jury of the danger of conviction upon the confessional evidence. 387 The "exculpatory evidence" supposedly contained in the police interview was not identified, and no submission was made about what direction the judge should have given concerning it. 388 The "inculpatory but repudiated representation" referred to was that contained in the final paragraph of the police interview as deposed to by Senior Constable Connell, to the effect that the Appellant wanted to "cut pain and suffering that we exposed for years and terminate our lives". 389 McKinney v R (1991) 171 CLR 468 related to some convictions concerning which the only evidence directly linking the accused with the place where the events in question had occurred was some signed records of interview that were produced at a time when the accused was in police custody. The defence of the accused was that the record of interview was fabricated by the interviewing police officers, and that the accused had signed the fabricated document only because his will was overborne. The majority judgment of Mason CJ, Deane, Gaudron and McHugh JJ held, at 475, that there should be a rule of practice requiring a warning to be given to the jury "whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated". 390 The incidents from which McKinney arose occurred before it became common practice in New South Wales for police interviews of suspected people to be electronically recorded. The majority judgment in McKinney, at 475, said that "audiovisual recording is one means by which a confessional statement may be reliably corroborated". 391 In the present case, the police interview was recorded, and the recording was played to the jury. While there was some dispute about whether some of the words of an introductory part of the interview had been included in a transcript that was also made available to the jury, there was no dispute that the words contained in the critical part of the interview, about the Appellant intending to "terminate our lives" had been said. There was no occasion for the judge to give the jury a warning of the type favoured by the majority in McKinney. As mentioned at [168] above, the summing up reminded the jury of the Appellant's explanation for why he had said he wanted to "terminate our lives". Inadequate Directions on General and Specific Intent? 392 The Appellant submits that the judge did not direct the jury that they should not only consider the prosecution and defence case on the issues of general and specific intent, but also whether the lack of required intent was a reasonable possibility. He relies on the decision of the South Australian Court of Criminal Appeal in R v Singh [2003] SASC 344; (2003) 86 SASR 473. 393 The directions that the judge actually gave included: "The Crown must prove that the acts of the accused which caused the wounds were intentional. The Crown must prove that the accused wounded Dr Cvetkovic, it says by stabbing her, with the intent to kill her." (summing up 12) "The accused denies having intent to kill his wife. He says that he was in a state of automatism …" (summing up 13) "The Crown must prove beyond reasonable doubt that the accused was acting voluntarily, not in a state of automatism. Unless the Crown does that you must find the accused not guilty." (summing up 27) "If you are not satisfied on the balance of probabilities that the accused was mentally ill … at the time of doing the alleged acts in counts 2 and 3 and 4 then you go on to consider whether the accused did the acts with the required intent, that is the intent to kill in count 2, the intent to cause grievous bodily harm in the alternative count 3, and the intent to prevent his lawful apprehension in count 4 … If the Crown satisfies you beyond reasonable doubt the accused did have the requisite intent in any of those charges and the Crown has proved all the other elements of the offence beyond reasonable doubt you would find the accused guilty. If the Crown does not satisfy you beyond reasonable doubt that the accused had the requisite intent, or any other element of the offence is not proved, you would find the accused not guilty." (summing up 30-31) "I remind you that the Crown must satisfy you beyond reasonable doubt that the accused was not acting in a state of automatism." (summing up 34) 394 The passages in R v Singh to which the Appellant points are at [91], [169], and [175]-[176]. They were made concerning a summing up in which the judge had directed the jury that it was a matter for them whether they believed the evidence of the accused. Mullighan J (with whom Debelle and Gray JJ agreed) referred at [144] to Murray v The Queen (2002) 76 ALJR 899. There, Gaudron J at 904 [23], and Gummow and Hayne JJ at 910 [57] had expressed the thought that a direction to the jury that it was for them to decide whether they accepted the accused's version, misstated the onus of proof. The way Gaudron J put it was: "… as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt." 395 The way Gummow and Hayne JJ put it was: "The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant." 396 In Singh, at [175], Mullighan J said: "… the directions by the learned trial judge were erroneous for the reasons expressed in Murray and they were critical directions. I have mentioned that the learned trial judge gave extensive directions as to burden and degree of proof given by the learned trial judge before and after the impugned directions but I do not think they could overcome the failure to direct the jury that they had to decide whether the prosecution had negatived the lack of general and specific intent and provocation as a reasonable possibility. The same must be said about the choice given to the jury by the learned trial judge about accepting or rejecting the evidence of the appellant as to his claimed loss of memory which I have earlier mentioned." 397 It is usually sufficient to direct a jury as to the burden of proof by making clear that they are to convict only if they are satisfied of each element of the charge beyond reasonable doubt. It is usually undesirable to try to paraphrase or explain the expression "beyond reasonable doubt". In Singh, the trial judge had positively misled the jury by the direction that it was for them to decide whether they accepted the appellant's version. There is no majority in Murray requiring that a jury should be directed, in express terms, that the prosecution must negative the appellant's version as a reasonable possibility before the jury can convict. In the present case, there was no misdirection to the jury of the kind that was fatal to the conviction's survival in Singh. I am not satisfied that the judge misdirected the jury as to the onus of proof of general and specific intent, or that the directions on that topic were inadequate. Inadequate Direction on Extent of the Evidence Required to Raise Reasonable Doubt 398 The Appellant submits that the trial judge misdirected the jury or gave inadequate directions to them on (a) the effect of the medical evidence, opinion and concessions (b) the totality of the evidence regarding the state of consciousness of the Appellant at relevant times, and (c) the extent required to raise reasonable doubt. He submits that the trial judge should have directed the jury according to the principles set out in Falconer. The particular passages in Falconer to which he submits the trial judge should have paid attention in giving directions are in the judgment of Gaudron J, at 85-86: "The evidence led in the present case raised no issue of insanity, but it did raise the question whether Mrs Falconer's act of discharging the loaded shotgun was done independently of her will. It should have been admitted as relevant to that issue and the jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs Falconer's will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved that issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal or healthy mind and in which the personality is segmented so that acts are performed independently of the will. And it might conveniently have been explained that that hypothesis would be excluded by satisfaction beyond reasonable doubt either that there is no such phenomenon as the particular mental state described in the evidence or that Mrs Falconer did not experience it." 399 The judge summarised the similarities and differences in the conclusions at which Dr Nielssen and Dr Westmore arrived: "Doctor Nielssen and Doctor Westmore differed in their opinions about the effect of what they diagnosed as the accused's major depressive illness at the time of his acts on 6 June 2007. Doctor Nielssen said he thought the accused's depression did not affect his awareness that his actions in stabbing his wife were morally wrong. Doctor Westmore thought it did. I will say more about their evidence shortly but in essence I think that is the dispute between them. On the issue of the accused acting in an automatic state they both agreed that the accused did not stab his wife in a state of automatism." 400 The direction about the extent of the evidence required to give rise to a reasonable doubt on automatism included: "There is evidence in the trial about the accused's state of mind at the time of the acts which give rise to counts 2 and 3 and 4, that is the stabbing of Sladjana Cvetkovic and the allegation that the accused drove his car at Constable Roberts with the intention of avoiding his being arrested. The evidence raises two different legal concepts. I will tell you about the different legal tests, how you go about considering them, the evidence you consider in relation to each and the verdicts which will follow depending on the findings you make. The two issues raised by the evidence are whether at the time of the acts giving rise to the offences charged in counts 2 and 3 and 4 the accused was acting in a state of automatism or whether at the time of those acts he was mentally ill so as not to be responsible for his acts according to law. The first issue you consider is whether the accused acted in a state of automatism. The law says that a person can only be convicted of a crime if the act constituting the offence was a voluntary act of the accused. A voluntary act is one done in the exercise of the accused's free will and choice. The Crown must prove that the accused's act was voluntary. If an act is done in a state of automatism, without the control or direction of the will of the accused over what is done, then no crime is committed and the accused must be found not guilty. Here the accused's case is that the psychological blow to him caused by his wife grabbing the knife and screaming when he produced the knife caused him to go into an automatic state, so that he was not conscious and aware of his actions until after he was on the ground outside his car in police custody. It is recognised that a psychological blow can cause automatism. The accused has raised the issue in the trial but that does not mean he has to prove he was acting in a state of automatism. The Crown must prove beyond reasonable doubt that the accused was acting voluntarily, not in a state of automatism. Unless the Crown does that you must find the accused not guilty." 401 The jury in substance were directed that one of the matters they had to consider was whether, in the light of the evidence, the prosecution had proved beyond reasonable doubt that the accused's will accompanied the act of stabbing. For reasons given earlier, the direction expressed in terms of "beyond reasonable doubt" was an appropriate one. False or Misleading Directions? 402 The Appellant submits that the judge gave various false or misleading directions to the jury. One direction of which the Appellant complains is: "The accused made a submission to you in his closing address that Doctor Nielssen was biased but you should put that out of your mind because there is just no evidence to support such a submission. It was never suggested to Doctor Nielssen to give him a chance to respond so you should just ignore that." 403 The totality of the submission made in support of this being a false or misleading direction is: "(ii) The appellant refers to NOA, paragraphs 357, 358 and 42, 43, 46, 49, 64, 65, 69, 106, 112, 115, 153, 249-259; 446-457, 478; see also 94-96, 102 and 503; see also witness statements (not) provided by the prosecutor (T1520; 35-45)." 404 In that submission "NOA" refers to the Appellant's notice of appeal. I have read those paragraphs with this submission in mind. I do not accept that anything in them shows that the direction concerning Dr Nielssen was false or misleading. As well, [42] relates primarily to Dr Westmore, not Dr Nielssen. Insofar as the paragraphs relate to Dr Nielssen, they show repeated examples of Dr Nielssen not agreeing with suggestions put to him by the Appellant, or giving evidence not favourable to the Appellant's case. That is not the same thing as evidence of bias. The judge was correct in saying it had never been suggested to Dr Nielssen that he was biased. Inadequate Directions on Medical Evidence? 405 The Appellant submits that the judge erred in directing the jury that both Dr Nielssen and Dr Westmore agreed that the Appellant did not stab his wife in a state of automatism. The Appellant submits that that is an error, because of the fragments of evidence to which I have referred at [139]-[144] and [145], and some other aspects of the detail of their evidence. 406 I am not satisfied that the direction did not adequately convey the substance of the opinion of the doctors. Inadequate Direction on Glasgow Coma Scale? 407 The judge directed the jury that the Glasgow Coma Scale shortly after the incident showed that he was fully alert. The Appellant submits that, for reasons analogous to those identified at [154]-[160] above, this direction was erroneous. For reasons I have given at those paragraphs, I do not accept that the direction was erroneous. Other Unspecified Inadequacies 408 The Appellant submits that the judge failed to direct or misdirected, or gave inadequate directions to the jury on the fact that the evidence in the trial contained discrepancies, displayed inadequacies, was tainted or otherwise lacked probative force and the weight they should give to the evidence. The Appellant makes that submission in bald terms, without elaboration. 409 The judge's direction included: "It is for you as judges of the facts to decide which evidence you accept as truthful and reliable or reject as not truthful or reliable and what weight you give to particular evidence. You have seen and heard the many witnesses as they gave their evidence in the trial. It is for you to assess the witnesses' evidence and decide if they were being truthful and accurate or perhaps honest but not accurate or neither. In deciding whether to accept a witness's evidence you do not have to accept the whole of any witness's evidence, though if you decide you do, you can. You may accept part and reject part of any witness's evidence. If you do not accept a part of a witness's evidence it does not mean that you must reject all of that witness's evidence. You can reject some and accept some of a witness's evidence if you think some of it is worthy of accepting. That might occur, say, if you decided that a witness was honest, but mistaken about part of his or her evidence. You must consider all the evidence you have heard and seen. I will not refer to all the evidence in this summing up, only where I think it is necessary to remind you of evidence, because you have heard the Crown and Mr Cvetkovic summarise the evidence fairly fully." Her Honour's statement that the Crown and the Appellant had summarised the evidence fairly fully was correct. 410 I do not uphold this submission. Failure to Direct on Difference Between Insane and Non-Insane Automatism 411 The Appellant submits that the trial judge should have directed the jury on the difference between insane and non-insane automatism. He draws attention to a statement in Falconer at 53, where Mason CJ, Brennan and McHugh JJ approved a statement of King CJ in R v Radford (1985) 42 SASR 266 at 274-275, that included: "If a jury is called upon to decide whether a state of automatism is due to disease of the mind, upon conflicting evidence or conflicting interpretations of the evidence, it must be told what the law understands by that phrase and it should be told that in language which a jury of laymen is likely to grasp. The expression `disease of the mind' is synonymous, in my opinion, with `mental illness'. In his charge to the jury in R v Porter (1933) 55 CLR, at p 188 Dixon J used the expression `disease disorder or disturbance'. But the words `disorder' and `disturbance' must take their colour from the word `disease' and refer to disorder and disturbance of the mental faculties which can be characterized as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules." 412 The Appellant's reliance on that passage is inapt in this appeal, as the jury has evidently not accepted that there was a state of automatism at all, and thus there was no occasion for it to decide whether a state of automatism was due to a disease of the mind, rather than to a temporary disorder or disturbance of an otherwise healthy mind caused by external factors. Failure to Direct on Voluntariness of Specific Intent? 413 The Appellant submits that the judge failed to direct the jury on the difference between voluntariness and specific intent. The Appellant refers us to Hawkins v The Queen (1994) 179 CLR 500 at 517. Hawkins involved a charge of murder brought against a young man who had shot his father dead. The defence case was that the accused intended to commit suicide in the father's presence and that, at the last moment, in a disturbed state of mind he turned the rifle towards his father and pulled the trigger without having the specific intention necessary to establish the crime. The accused's counsel did not raise a defence of insanity. The High Court held that the judge had been wrong in rejecting medical evidence which cast doubt on whether the accused was able to form a specific intent to either kill or cause bodily harm to his father. The rejected medical evidence included an opinion that the accused's plan to kill himself was a product of a mental disease, and that that mental disease raised a doubt about whether the accused had the intention to kill his father. The joint judgment of Mason CJ, Brennan, Deane, Dawson and Gaudron JJ observed, at 515: "To say that evidence of mental disease is admissible on the issue of intent is one thing; the strength of the evidence is another. If the evidence of mental disease does not establish that the accused was incapable of knowing that the act was 'one which he ought not to do' (s 16(1)(a)(ii)) or, under the common law, was incapable of knowing the nature and quality of his act, that evidence may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances. But there is no necessary inconsistency between mental abnormality and the existence of a specific intent." 414 At 517, their Honours said: "In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s 13 or to s 16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s 16. It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done , is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was 'voluntary and intentional' within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent …" (emphasis added) 415 The words in bold are those to which the Appellant specifically draws our attention. 416 In her summing up, the judge followed the course required by Hawkins, of dealing with mental illness before dealing with specific intent. After the direction on mental illness, the summing up continued: "If you are not satisfied on the balance of probabilities that the accused was mentally ill, in the way that I have just explained, at the time of doing the alleged acts in counts 2 and 3 and 4 then you go on to consider whether the accused did the acts with the required intent, that is the intent to kill in count 2, the intent to cause grievous bodily harm in the alternative count 3, and the intent to prevent his lawful apprehension in count 4. In deciding those questions you take into account the evidence that the accused had a mental illness." 417 The last sentence quoted satisfies the requirement of the passage in Hawkins to which the Appellant directed our attention. Ground 3(C) – Nature of the Evidence and the Overall Effect 418 The material on which the Appellant relies under this heading is not really a separate ground of appeal. It is more a summary of other submissions, and a rhetorical peroration. The Appellant submits that there are various "unanswered questions" about some of the evidence in the case. None of those "unanswered questions" is central to whether it was open to the jury to be satisfied beyond reasonable doubt that each element of the charge was made out. The Appellant's submission goes so far as to submit that the possibility that the act was involuntary is "all one way". It reiterates that a jury could not, on all the evidence, reasonably have come to a verdict of guilty. Thus, the Appellant submits, the appropriate outcome of the appeal is that the verdict of acquittal should be entered, not merely an order for a new trial. 419 For reasons I have already given at length, I do not accept those submissions. Order 420 The appeal should be dismissed. 421 SIMPSON J and WHEALY J: We have read in draft the judgment of Campbell JA. We agree with his Honour that the appeal against conviction ought to be dismissed, and we generally agree with his Honour's reasons. 422 With respect to the first ground of appeal, that the conviction is unreasonable or cannot be supported by the evidence, we make the following short observations. 423 The central facts concerning the events giving rise to the charge were not in issue. The appellant acknowledged that he had equipped himself with what he called a knife, and (although he claimed to have no recollection of using it on his wife) that he had stabbed her with it. He raised the issue of automatism. In those circumstances, the only issue for the jury was whether the Crown had proved beyond reasonable doubt that the act of the appellant in using the implement on his wife was a "willed" act – that is, committed of his own free will and decision: The Queen v Falconer [1990] HCA 49; 171 CLR 30 at 39. The issue for this Court under this ground of appeal is whether, on the whole of the evidence, it was reasonably open to the jury to find that it was: The Queen v M [1994] HCA 63; 181 CLR 487; The Queen v MFA [2002] HCA 53; 213 CLR 606. 424 The various asserted inconsistencies and discrepancies in the evidence of some witnesses, the appellant's history of disappointment as a result of the unfavourable outcome of litigation, and the logicality (or otherwise) of certain conduct of the appellant did not, and, in our view, could not, contribute to the resolution of that issue. The detailed argument put by the appellant in respect of these matters has confused what is in reality a simple issue. 425 For example, a good deal was sought to be made of what was said to be the "tainted" nature of the evidence of ambulance officers. But unless there were some additional (expert) evidence to show that, had circumstances been different to those described by the ambulance officers, then the case for automatism would have been strengthened, that goes nowhere. Any such evidence was lacking. 426 Similarly, the appellant made much of the evidence concerning cuts to the clothing of Ms Cvetkovic. Without evidence showing that that was somehow relevant to the appellant's state of mind at the time of the stabbing, it, too, went nowhere. 427 The expert evidence that was called came nowhere near raising a doubt in respect of the appellant's state of mind. 428 In our opinion, in the absence of evidence (whether by report, evidence in chief, or cross-examination) of the medical experts showing that any of those matters could have had a bearing on their assessment of the appellant's state of mind at the time of the stabbing, it is strictly speaking unnecessary to go to the detailed analysis of the evidence of what occurred at and around the time of the stabbing. Those arguments tend to mask the real, and simple, issue. 429 In other respects we agree with the reasons of Campbell JA. ********** 07/02/2011 - Replace the word "tended" with "tendered" in final sentence of paragraph. - Paragraph(s) 343 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.