Director of Public Prosecutions v AB [2013] NSWSC 1739

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v AB [2013] NSWSC 1739 Hearing dates: 8, 10, 11, 15 - 18 October 2013 Decision date: 26 November 2013 Jurisdiction: Common Law Before: Adams J Decision: The accused on the limited evidence available, is not guilty of murder but is guilty of manslaughter. Catchwords: CRIMINAL LAW - murder - manslaughter - special hearing - killing of deceased uncontested - provocation, s 23 of the Crimes Act 1900 - substantial impairment, s 23A of the Crimes Act 1900 Legislation Cited: Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002 Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Director of Public Prosecutions AB Representation: Counsel: J Crespo (DPP) M Ramage QC (Accused) Solicitors: Director of Public Prosecutions (DPP) Jeffreys Lawyers (Accused) File Number(s): 2010/230612

Judgment Note 1I have described the accused, the deceased and their daughter anonymously, principally to protect the identity of the last, who was aged but seven or so at the time of her mother's death. By doing so, of course, I mean no disrespect. Introduction 2On 8 October 2013 the accused was arraigned upon a charge that he, on 10 July 2010 at Wingham in the State of New South Wales murdered the deceased. He was and is unfit to be tried. This is a special hearing conducted in accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990, pursuant to s 21(3)(a) of which he is taken to have pleaded not guilty to the indictment. The special hearing was conducted without a jury. 3That the deceased was killed by the accused on 10 July 2010 is uncontested. The issues that arose in the special hearing were, in substance, whether he acted under provocation within the meaning of s 23 of the Crimes Act 1900 or, in the alternative, whether he was suffering from a substantial impairment within the meaning of s 23A of the Act which warranted his liability for murder being reduced to manslaughter. Accordingly, the only live question is whether he is guilty or otherwise of murder or manslaughter; it is not suggested that he could be acquitted completely. It follows that, in due course, it will be necessary to impose a limiting term, being the best estimate of the sentence that would have been appropriate had there been a normal trial of the accused and he had been found guilty of the offence. I should also mention that the finding is a qualified finding of guilt and does not constitute a basis in law for any conviction. 4On the question of provocation, the onus is on the prosecution to establish beyond reasonable doubt the elements of the crime of murder and that the accused was not acting under provocation in the relevant sense at the time of the offence. If this be proved, the question of substantial impairment arises, on which the accused bears the onus of proof on the balance of probabilities. 5I propose first to deal with what might be described as the objective circumstances of the killing and then with the psychiatric evidence as to the accused's state of mind. As to the latter, it can be noted at this stage that the psychiatric evidence is all substantially to the same effect, namely, that (to use the words of s 23A(1)(a)), the accused's "capacity to understand events, or to judge whether [his] actions were right or wrong, or to control himself... was substantially impaired by an abnormality of mind arising from an underlying condition". The second limb of what it is useful to call this defence, namely whether that "impairment was so substantial as to warrant liability for murder being reduced to manslaughter" is, of course, not a medical question, but an issue for the tribunal of fact to determine and is in dispute. I should also observe, at the outset, that s 23A(3) requires the effects of self-induced intoxication, if any, are to be disregarded for the purpose of determining the latter question. 6Not surprisingly, in light at least, of the medical evidence, the accused did not give evidence. No adverse inference can be drawn from his silence; nor can his silence be used to fill any gap in the prosecution case. The deceased is shot 7The deceased and the accused had been in a domestic relationship for a number of years. They had a daughter who, at the time of the killing, was seven years of age. The deceased had ended the relationship by moving with her daughter out of their home at Mooral Creek, some 26 kilometres out of the town of Wingham, first to live with her sister and then to rented premises in Bungay Road, Wingham. This house was fully detached with a single vehicle carport on its eastern side and a covered verandah running across the front accessed by stairs. 8Mr Kevin George lived with his wife directly across the road from the deceased and had a clear view of the premises although, from his point of view, the verandah was obscured on the left hand side by a bushy tree. At about 3.00pm on Saturday, 10 July 2010, Mr George was in his lounge room with the television on and the window open when he saw the accused arrive in his blue car and drive up onto the driveway leading to the carport. He noticed that the car had stalled slightly as it left the road. The accused alighted and walked up the steps to the verandah gate, which was opened by the deceased, whose daughter was also in view. The accused walked onto the verandah and he and the deceased moved left and out of sight behind the tree. The next thing Mr George saw was the accused come back down the steps, walk across to his car, open the back passenger side door, take out a rifle and walk back up onto the verandah. Mr George had heard nothing up to this point. He said that, "pretty well straight away" after the accused returned to the verandah, he heard four gunshots, the first two of which were spaced, and the second two rapid. He could not see either the accused or the deceased. He said that, if there had been a conversation in ordinary tones on the verandah, he would not have heard it but it was likely that he would have heard raised voices. 9After the shots, the girl ran down the steps and away from the house. The accused sat down on a seat on the verandah for a few moments (something less than a minute), appearing to be drinking something. He then walked back down the steps to his car, opened the rear passenger door, put the rifle inside, got into the driver's seat and drove off. Mrs George rang police and an ambulance whilst Mr George went to the verandah where another neighbour, Ms Lorraine Simpson, had arrived in the meantime. 10Mr Michael Styles also lived across the road from the deceased's house. He said that whilst he was at the back of his house he heard four shots coming from the other side of Bungay Road. He went to the front of the house but saw nothing of significance. He then heard a male voice yelling quite loudly something to the effect of, "If you want to be a smart arse, what do you think about that?" He then heard a child screaming and the man said, "Well go and get the phone then" and all then went very quiet. Mr Styles went back inside his house, coming out a short time later when he saw a neighbour at the front. He had seen a small blue car (clearly the accused's) some time earlier parked on the road near the driveway to the deceased's house. When he went to the front of his house after the shots were fired he saw it being driven towards town. He thought this was perhaps five minutes after the shots were fired. 11Mr David Leach resided next door to the Styles. (As it happened, he was the manager of a produce shop in Wingham and had earlier seen the accused in the shop four, or possibly five times, in the company of the deceased, although the last time he had seen her there was about three to four months earlier, alone.) He said that, on 10 July 2010, he went for a walk some time after 2.30pm and, as he was returning to his house coming back down Bungay Road, he saw a blue Ford (the accused's vehicle) parked behind the deceased's car in the driveway of her house. He was able to see the verandah running across the front of the house and noticed the accused sitting there, slouched forward with his hands on his upper legs. He did not see anything in his hands. Mr Leach continued to walk to his house. It was then 3.19pm. Shortly after, when he was at the back of his house, he heard two loud gunshots and then a female scream. The gunshots sounded close, but he was unable to say what direction the sounds came from. He thought there was about a five minute gap between the time he saw the accused on the verandah and the shots being fired. After a very short delay, he heard another two gunshots coming from the same direction. He did not hear anything after those shots. He said that at some time about 4.30pm or 4.45pm he was driving down Bungay Road and saw the accused's vehicle driving in the opposite direction. 12Mr Lindsay Ellison resided in premises opposite the deceased's. He was in his backyard when he heard four shots in quick succession, probably less than half a second apart. They came from Bungay Road. He went up into the house and, coming from the same direction as the gunfire, heard a small child crying. Perhaps 30 seconds after the last shot he heard a male voice firmly and deliberately saying, "Now walk away". He heard the child crying after these words were spoken. He did not hear anyone saying, "Now go away and get the phone" or a child's voice yelling that she couldn't find the phone or didn't know how to use it. From where he was standing he could see the deceased's car parked in the carport but did not see any car parked behind it. He said that he did not see any vehicle leave after he heard the words spoken nor did he see any blue motor vehicle there that day. 13Ms Wetherall and her husband lived next door to the deceased's premises in Wingham. She said that at about 3.30pm on 10 July 2010 she was in the kitchen of her house when she heard loud arguing between a man and a woman coming from the deceased's house. This went on for about one minute or so and then Ms Wetherall heard four gunshots coming from where they were arguing. She heard a female screaming and crying but was not sure whether this was an adult or a young girl. Ms Wetherall went outside and saw the deceased's daughter run from the property. As she did so Ms Wetherall saw a male walking from the front lawn to a blue coloured car which was parked in the driveway near the front of the house. This was obviously the accused. The car drove off at speed up Bungay Road towards town. 14An interview with the accused's daughter on 10 July 2010 and was tendered without objection. She confirmed she was elsewhere in the house at the time of the shooting. She said that her mother had told her to go to her room, having been telephoned by the accused's neighbour Mr Watt warning that the accused might be on the way to her house. The child heard what she described as a banging and her mother screaming, so she ran outside to be told by the accused to ring triple 0. She yelled, "Well, if you want me to ring triple 0 you've got to help me find it" and ran out of the premises to a neighbour's house. The injuries 15The autopsy disclosed five gunshot wounds of which that to the right lower chest area had penetrated the heart. There were four other wounds, being to the right upper arm, the back of the right thigh, the inside of the left forearm and the lower half of the right buttock. All the injuries were significant and would have resulted in substantial blood loss. Accordingly, death was determined to be the result of the multiple gunshot wounds. Death ensued very quickly. Ballistic examination showed that the rounds were .22-250 calibre. The police investigation 16Police and ambulance units attended the premises shortly after the shooting. Investigating police, Sergeant Kendell and Senior Constable Smoothy arrived at the scene at about 3.45pm. No-one was inside the premises, although there was a small dog in the lounge room. The deceased was lying on the front verandah wearing jeans and a shirt. Police noted a wound to her right thigh just above the knee and an amount of blood near her head. 17At about 5.20pm Senior Constable Smoothy saw the accused's blue Ford in the process of turning out of Bungay Road. He and two other officers then followed him in a police vehicle on which the warning devices were activated. The accused did not stop or slow down but he was not speeding. Another police vehicle stopped in front of the accused's car, blocking its path and it came to a halt. Senior Constable Smoothy and two other officers approached the accused's vehicle with service pistols drawn and saw him seated in the driver's seat. The rifle was in the front footwell. The accused was removed from the car, placed on the ground and handcuffed and searched. He was informed that he was under arrest and asked his name, which he gave. An ammunition case containing a number of unspent cartridges was on the floor of the car together with a number of stubbies of VB beer, one of which was partly consumed. He was put into the rear of a caged vehicle. Sergeant Kendell, whilst talking to the accused, formed the opinion that he was moderately affected by intoxicating liquor, based on his speech being slurred and his eyes being glazed. The accused refused to undergo a random breath test. There was some further short conversation, which included the conventional caution. When asked if he wanted to say anything at that stage, the accused said, "No". Shortly afterwards he was taken to the police station at Taree, arriving shortly before 6pm. In the field arrest form completed at the police station Sergeant Kendell noted that the accused appeared to be intoxicated. The accused was introduced to the custody manager, Leading Senior Constable Blick. Mr Blick stated that around 5.55pm the accused was moderately affected by alcohol, based upon the slurring of his speech, his eyes being glazed and very red and his actions being slow. The accused told him he had drunk three VB beers since midday. An unspent cartridge was found in the pocket of his trousers. Whilst he was in the charge room dock holding area, he was asked again to undergo a breath analysis and, again, refused. Mr Blick, took the accused through the prescribed form, informed him of his rights whilst in custody and cautioned him. He said that his interaction with the accused led him to form the opinion that he was moderately affected by alcohol, again on the basis that his speech was slurred and his eyes were glazed. 18At about 6.35pm the accused had a conversation with Detectives McWhirter and Kelly. For reasons already stated, I ruled that this conversation was inadmissible. At about 9.50pm Mr Blick again spoke with the accused to inform him of his rights under the Law Enforcement (Powers and Responsibilities) Act 2002. At about 10pm Detective McWhirter took the accused into an interview room where a recorded interview was conducted. Statements by the accused 19At 3.56pm on 10 July 2010, the accused called triple 0. He was then at home in Mooral Creek. The conversation opened with an introduction by the operator, to which the accused immediately responded, "Well, I just shot my missus". He then gave his name, stated where he was and said, "I shot her in Wingham", identifying the premises. He said, "I shot her three times". He was asked whether he was okay and said, "Yeah, I am so far but I won't be when you get here". This intention to kill himself was repeated a number of times during the conversation. Amongst other things, he said that "my little girl" was at the house at the time, that she ran down the road, but he did not know where she went. The operator asked - "Well, I'm just trying to, as I said, I'm just trying to understand what the situation was because I need --- Accused: Well the situation was she made a cunt of me, so I shot her. Is that all right?" He went on to say, during further conversation - "But what I'm trying to say to you is, listen, it was all right, while she was doing what she was doing but now it's fuckin' finished. All right? Operator: OK. Accused: All right? Operator: Yeah. Accused: Now, everybody said to me, don't kill your missus because you've got a kid. Well, fuck her too, and I don't care whether you like it or you don't. Operator: No, that --- Accused: That's the whole deal. ... Operator: OK. So I can see that the police have been to the house. I can't tell you what's going on there. Accused: She must be awful sick 'cause I put three bullets in her. Operator: I can't see that because I am not a police officer. I'm an emergency ... operator. ... Accused: All I'm telling you is what I done... you know. I mean, I couldn't find the phone in the house, so I couldn't ring you ... But I'm home now. ... [The accused said that he would be dead by the time the police got to his home.] Operator: I understand what you're saying about how you shot her and how bad it is. Accused: Listen, she got three of the best bullets I ever seen in me life. Operator: OK. Accused: All right? Operator: Yeah. Accused: Now, I don't really care. All I'm saying, she wasn't going to rob me no more. Operator: OK. Accused: All right? The little one yes, I'm sorry for that but I done it. All right? Operator: Right. Accused: But I am going to kill myself anyway, but I'm just telling you I shot her and you must know that by now because I must've been there." He later added - "Well, because, you know what? They say they get the goldmine, you get the shaft. Like, I'm 64 year old... And its not the best thing in the world to do, so fuck her. She - I'm going to end up in the, in the arse of the world. I've had three houses. She fucking robbed me of all of 'em." He added again - "Yes, I did shoot her and I hope she's dead. I hope she fucking is... I hope she's fucking dead because she's not going to rob me no more. All right? ... I got nothing left... I mean, she's going to rob me of the house and I said, fuck you anyway, and I'm telling you the truth, fuck you anyway, so I went and shot her, you know?" He said that it was "just on the spur of the moment". He said that he had some psychological treatment that didn't help, the psychologist saying, "You're as sane as the next person". He said - "Listen, when you live so far out in the bush and your wife leaves you and all that sort of shit and says drink's the problem... I think, well, fuck you too, you've been here for 15 years and have put up for that long. Now all of a sudden, she pissed off." He said that the deceased had been gone for four months and that he really missed her and their little girl - "Accused: ... but she ran down the road when she seen her mother shot. Operator: Oh, all right... I suppose it'd be a bit scary. Accused: Well, hang on, listen. Everybody said, don't shoot your woman while the kid's there...Well, I had no choice. I just walked in and went bang, bang, bang, and that's the end of you ... I said, fuck it I'm going to do it anyway. Operator: Yeah? Accused: So I done, look, it just doesn't matter what I say to you ... The whole fact is I've done it and I feel guilty." 20The operator asked whether, when he left his home with the gun, he "didn't actually go in with that intention... to shoot her?" After a significant pause, the accused said - "Look ... understand this, I went with the intention of killing ... I've been here fuckin' 6 months on my own and she's getting all these benefits and all this shit and I got fuck all ... and I said fuck this, and she's a smart arse, you know? ... Operator: Well, that, you know, as I said, I'm listening to your opinion because I wasn't there ... so I don't know the situation. Accused: ... All I'm telling you, she was a smart arse ... and I spoke to her this morning. She, oh, the little one doesn't want to come out anymore. I said, why not. You have a drink of a night. I said, I only drink at home. I put the kid to bed. I've got everything in the world for that kid... and she said she doesn't, well, I said, fuck you I don't want you to come here. All right?" He later added - "I know I shot her, and I thought the first one didn't kill her, so I give her a couple more. Operator: So three times you shot her? Accused: Yeah... I hope she's dead... because, you know, she wanted to rob me for half the house... and, if she died before me I get nothing. 21The accused later said that his daughter was somewhere else in the house when he shot the deceased and did not see the shooting. As the conversation went on, he repeated the complaints about the deceased leaving him in the lurch (as it were) when she was his carer, repeating that he meant to shoot her. He said, "I think, I think, I done what I had to do ... and I hope she dies." He said that he did not want to go gaol. When he saw the deceased bleeding he asked himself, "what have I done?" but then justified himself by referring to her leaving him and wanting maintenance. He repeated that he felt sorry for his daughter. After he had talked a little about his house, he commented that he would not be living there because, "What I've done is, 10 years", a reference to gaol and, shortly after, ended the conversation. 22I have set out this conversation in some detail because, as it seems to me, it clearly exposes the accused's state of mind at the time. He knew what he was doing and why he did it and felt that it was justified. It may be that he intended to commit suicide but it seems almost certain he did not attempt to do so. Though the accused said that he had a drink, and occasionally slurred his words (a matter to which I refer later), he spoke coherently and quite calmly although he was plainly angry. There were a number of bizarre statements, however, in particular that he seemed to want the operator's agreement that he had done the right thing or, at least, that he had no choice. As a layperson, I find that difficult to reconcile with thinking that was altogether rational. 23The first conversation went for some 33 minutes. At 4.39pm, a few minutes after it ended, the accused again called triple 0. The conversation again started with his telling the operator that he had shot his partner. He said that he did not know her condition but he thought it would be "pretty crook". The operator took details of his address and where the shooting occurred. He stated the deceased's name and mentioned that his daughter was at the house, although she did not actually witness the shooting. There was conversation about the gun and how many shots he fired from it ("I reckon three or four"). He said that he had been drinking, saying that he had had "half a dozen [beers] today" but, "that's got nothing to do with what I'm talking about". He had also some tablets - it seems almost certainly this was his prescribed medication for various illnesses. He told the operator, "All I'm saying to you is that I shot her and I hope she's dead". The operator asked him where he was and whether he was alone (yes); they spoke about horses on the property which were sent away to be put down. There was some conversation about racing and betting and the accused then said that he expected the police to arrive. There was some conversation about whether he was going to stay in the house and the operator asked him to call back in an hour, to which the accused agreed. He did not do so, after this conversation returning to Wingham when he was seen by police, as I have already mentioned. 24The accused in this second conversation also appeared to be normal though, again, he slurred his words slightly from time to time. He was clear, coherent and deliberate in his speech. 25I now come to the interviews with police. An earlier interview was inadmissible for reasons stated at the time of its exclusion. On a number of occasions during the second interview, he was taken to answers that he gave during the excluded interview and asked whether he agreed that he had earlier answered in that way. It added little to what he had already said but, as no objection was taken to it, I have considered it together with the other answers given by the accused. 26To police the accused repeated much of what he had already told the triple 0 operators. Some additional details were disclosed, however, which should be mentioned. The accused informed the police that he drank two stubbies of full strength beer on his way home after the shooting and "I had the other four in the car... when I came back to town". (I take this to be on the occasion when he returned to the vicinity of the deceased's premises shortly before his arrest. As will be seen, he had bought a six pack at the bottle shop in Wingham on his first trip into town that morning, before he went to see the deceased.) The accused said he spoken twice to the deceased on the telephone during the morning before he went into Wingham. (Telephone records show calls from the deceased's phone to that of the accused at 7.19am and 7.20am for just over five minutes.) The accused said that they had argued about their daughter coming to stay overnight with the accused (which, as I understand it, was the usual arrangement). The accused hung up on the deceased, who then rang back shortly afterwards. They argued again about access, including - this is not entirely clear - complaints by the deceased that the accused was not feeding the child properly and about his drinking when she was with him. The deceased offered to bring the child to the accused's house but wanted her to come home that night. His response was, "I don't want her here". The accused said that he drove into Wingham sometime around 8.30am to 9.00am and spoke to the deceased, accusing her of bad mouthing him to their daughter. (Although he did not specifically say so, it is clear that the accused then returned home and later that day went to the deceased's premises on the occasion he shot her.) 27As usual the accused was videoed during the interview. He appeared to me to be alert and coherent although slurred his words occasionally. Some answers indicated either confusion or a lack of memory about events. Thus, he did not think that he had been spoken to by police when being arrested or that he had spoken to a police officer at that time. This may have been a reference to speaking about what had happened, but I think this is an artificial construction. He said that he could not recall what he had earlier told the interviewing officer about his movements that day and could not explain why he did not remember, although he added, "I'm not in the mood to be speaking about it". He said that the reason he returned to Wingham (when he was seen by police) was, "I just wanted to see if everything was all right", which strikes me as somewhat inconsistent with a real understanding of the seriousness of what he had done. He said that, when he turned the corner, he saw police everywhere, "So someone must have seen my car previous, I don't know". Of course, it must have been obvious that police were there because it was where the deceased had been killed; that he was followed by police, certainly suggested that his car had been identified. This may have been mere misspeaking or perhaps, evidence of some confusion of thought. Although he recalled making the triple 0 calls and was correct about having spoken to a woman first and then a man he could not recall what he told them and did not know the reason why he could not recall it. He said that he could have spoken to them for 10 minutes, whereas it was actually just under an hour. He thought that he had possibly told them about what had happened. He said that he had spoken to no other people that he knew on this day, although, as will be seen, he had spoken to several of his neighbours. When he was told that police had been informed he had walked back to the car after first speaking to the deceased and then got his gun, the accused responded that he did not know about this; he agreed that he walked back to the verandah with a gun and shot the deceased three times. He could not recall where the deceased was when she was first shot but recalled where she was when the second and third shots were fired. He did not know whether, at the time of the third shot, she was sitting up or lying down although she was not standing. He denied saying anything to the deceased at this time. He was asked the following - "Q453: Did you check to see if [the deceased] was alive? A. No. Q454: Did you, when you left [the deceased] did you think that she was dead? A: Yeah. Q455: Did you go there purposely to kill her? A: Not really, no. Q456: Would it be fair to say that shooting her three times that more than like that she would die? A: I'd say so, yeah. Q457: So why did you shoot her three times? A: Why? I don't know, I don't know." 28As to what the accused was thinking as he drove to the house, he said - "I honestly couldn't tell you, I was pissed off about the little one, I can tell you that but I really couldn't tell you." He said that he did not know why he drove into town. 29These statements suggest that, while he had thought about killing the deceased - hence bringing the rifle with him - he had not definitely decided to do so until he went back to the car to get the rifle after what was almost certainly an initial interchange. Even giving full weight to what he had told his neighbours about wanting to kill the deceased (which I deal with below) I do not think the answers given to police were attempts to avoid the truth. I thought the accused was being candid. When he did not wish to answer a question he simply said so, on a number of occasions. I do not believe that he was attempting to prevaricate. 30It is obvious from all the statements made by the accused after the event that he very deeply resented the deceased leaving him and demanding not only one half of the proceeds of the sale of the house but also maintenance. The following appears to be a fair summary of his position, repeated frequently one way or other in all his conversations about the matter - "You know, I mean I earned the money to get the houses in the first place, I put her through fucken school, I put her through university, I put her through everything and this is what she does to me... and wants to laugh in my face... I said, 'No, enough's enough'... I mean she's sitting in Wingham... and living the life of Riley and I'm struggling out in the bush... it just hurts me so bad... I mean, I don't believe anybody can live with someone for fifteen years and turn dog." 31As will appear, the accused was also troubled by a belief that the deceased may have been having an affair and, as well, that the child may not in fact have been his daughter. As to the latter, he said that he believed the child was his daughter as far as he knew, but he did not know and, "I took the responsibility of that child". As to the possibility of an affair, the accused said - "... look, I don't care what anybody says, I never tried to skin that woman. I mean, I give her... what I thought was a fair thing... But apparently it wasn't... Now whether she's got the ah, well, I don't know what she's done, I've got no idea, she might have a man, I don't know, it's got me beat, it's just got me fucking lost, all right." 32He later added - "... I don't know whether, I don't know whether she's living with a bloke or whether he's living in town but he sees her five times a week, I've got no idea. Then there's a shed around the back of her place, that's just as bad... and, I'm thinking, what's going on here?... I mean, for my missus to up and piss off the way she did just wasn't, um, she was a very smart woman." 33Another element of the statements made by the accused about shooting the deceased is that, despite a number of opportunities, he never indicated any remorse, instead justifying what he did as the only course available, perhaps best exemplified in the following passage - "Q223 ... How did you feel when you did it? A Not real good at all. Matter of fact, I was fucken lousy. Q224 Yep. Then why did you do it? A Well, when we, you put, you get your, you get your back against the wall and see how, if you're stuck between a rock and hard place, we'll see what you do, all right. And that's exactly how I felt. Q225 Did you feel that you didn't have any out apart from doing what you did to [the deceased]? A Well, what do you mean by that? Q226 Well, there's other avenues, I mean, there's divorce, move - - - A I wasn't, I wasn't married. Q226 - - - move on with your life. A I'm fucken 64, for Christ's sake... I live in the fucken bush, what are you telling me, what are you tell me now? Q228 Well, there's other avenues - - - A I think you're having, I think you're having a bit of a joke with me. Q229 Well, no, there's other avenues apart from killing people available to you. A Yeah. Well I've seen a - - - Q230 Can you tell me why you didn't take one of those avenues? A - - - I've seen a psychologist for the last two weeks too... And he didn't fucken help me... He reckons I'm as sane as the next bloke and I thought, well, you're fucken mad." 34On the other hand, the accused was troubled by the fact that his daughter was in the house at the time although she did not actually see the shooting. He said in answer to a question as to what he thought when he saw his daughter there, "I felt fucking horrible, all right". Earlier events 35The source for this material is the accounts of a number of witnesses who lived in the vicinity of the accused's premises on Mooral Creek Road. 36Mr Rodney Hile travelled to a friend's place on 10 July 2010 to do some maintenance, followed by a barbeque at about 2.00pm or so, he together with some friends drove back to Wingham along Mooral Creek Road much of which is winding and unpaved. Mr Hile said he saw a small blue car (obviously, the accused's) coming in the opposite direction driving erratically. As it came around a left hand bend it was on the wrong side of the road and the driver of Mr Hile's vehicle needed to swerve to the edge of the road to avoid it. The road is narrow and two cars can only just pass each other. Mr Hile thought that the blue car was travelling too fast for the conditions. 37Mr Kevin Watt had resided in a rural property on Mooral Creek Road for some years and had met the accused and the deceased some time in the latter half of 2008. They lived next door, the houses being about 200 metres apart. Mr Watt said that, sometime after they first moved in, he would see the accused more or less daily, each visiting the other. They would share a beer (or so) together. Mr Watt also got to know the deceased. His relationship with her developed into something more than just friendship from about the end of 2009; there was some physical affection between them, falling short, however, of intimate relations. In about February or March 2010 the deceased and her daughter left the premises and Mr Watt helped her to move to her sister's house in Wingham. They kept in contact and he saw her a few times over the ensuing months. He and the accused continued to meet relatively frequently to have a beer or a cup of coffee. Mr Watt, noticed that the accused, who had been a heavy drinker, started to drink more heavily when the deceased left. He thought that the accused was "pretty much drunk nearly every day at some stage of the day". On what I understand to be the first occasion upon which the accused mentioned to Mr Watt that the deceased had gone, he said, "I told her to fuck off or I'd kill her and she's gone" - he did not know where she had gone and did not care. He later mentioned the deceased's departure every night when he had been drinking (and he was drunk most of the time). He often threatened to kill the deceased or kill her daughter saying, "I'll fix them up, I'll square it up, I'll get even". He would also say words like, "I'll fuckin kill them, I'll kill both of them, I'll show them, I'll kill myself". Mr Watt said however, that when the accused was drunk, he was aggressive and threatened to kill anybody who upset him. The accused also complained about the deceased having taken his property. In due course Mr Watt and the accused helped the deceased to move into the premises in Bungay Road. 38On the morning of 10 July 2010 at about 9.00am a neighbour of Mr Watt, Mr Sawyer, came to his place and stayed for a couple of hours. At about 2.00pm, after Mr Sawyer had gone, the accused drove to Mr Watt's house. He thought he was drunk, but he was able to speak and walk, though "wobbly on his feet". The accused complained that the deceased would not let him have custody of the girl because he had driven with her in the car whilst he was drunk the previous weekend. He made some other irrelevant complaints and then drove home. About an hour or so later, the accused called him and asked "Do you think I owe you more than you owe me or do you think we're even?" Mr Watt responded, "We're probably fairly even". The accused then said, "Well, fuck you. Don't come to my house again. Don't come here" and hung up. Mr Watt said that after the call he drove to the front of his property to close the gate. As he walked back to the car he heard a gunshot from the direction of the accused's house. He looked around but could not see anyone and drove back to his house. This shot, he thought, occurred at about 3.00pm. Another neighbour of Mr Watt, Mr Ian Browne, came to the house about 3.30pm. They were having a beer together on the verandah when the accused drove up to the house, driving unusually fast. The accused came up the stairs to the verandah, shook hands with Mr Browne and said, "I just shot her three times. Have you got a beer for me?" Mr Watt told him, "Fuck off, just fuck off" and the accused left. Mr Watt described him as fairly pale and "slightly" intoxicated. He did not think he was over-intoxicated because he spoke clearly and was not walking "all that bad" but he thought he had obviously been drinking. 39In cross-examination Mr Watt agreed that the accused quite often claimed that the deceased was having an affair with different people in the area and, if people spoke to her on the street and complimented her, he would accuse her of having an affair with them. Mr Watt, when the accused made these claims, tried to persuade him, as I understand it, that this was not so. Mr Watt said he helped the accused collect firewood and with his fencing and described him as a very helpful fellow when he was not drunk. However, after he had a few beers to drink, his language became intemperate and, depending on how upset he was, he would make all sorts of random threats against people. The accused often threatened to commit suicide, saying things like, "I can't live without her". Mr Watt said that after he purchased the blue Ford (sometime after the deceased left him) he would drive to Wingham nearly every day and purchase alcohol and frequently would come and drink some alcohol with Mr Watt on the way home. At these times he was making increasing threats about killing people, including himself. It is a little unclear, but as I gathered, during their drinking sessions, which lasted several hours, the accused would usually drink a six pack while Mr Watt would probably drink three beers. Mr Watt said, "[The accused] was the sort of bloke that if he had a six pack, he drank a six pack, and if he had a carton, he drank the carton... He drank every day." 40Mr Ian Browne owned a property next to that of Mr Watt. He first met the accused towards the end of 2009 when he told Mr Browne that his wife had moved to town to stay with her sister. The second occasion was in late March. He also met him on other occasions on Mooral Creek Road near Mr Browne's front gate. On these occasions the accused had a beer in his hand and slurred his speech. During a conversation at the end of March 2010, after the deceased had left, Mr Browne said the accused spoke aggressively, saying things like, "What am I supposed to do, the house will be on the market, I will have no where to go". He thought the accused was very worried. On a later occasion Mr Browne went to the accused's house and, when he went inside, noticed seven or eight beer bottles on the floor and the accused very slurry in speech and unsteady on his feet. 41On 10 July 2010 Mr Browne said that he went to Mr Watt's house at about 3.50pm. He was on his second beer when the accused turned up, he thought, at about 4.45pm. He drove up the driveway in his car and then walked up the steps to the verandah. They greeted each other. Mr Browne's recollection of what was then said was - "he said 'Fred, well have you got a beer for me' and Fred said 'no', and he said 'Well I have just been to town and shot my wife'. He said 'I just shot her three times in the head', and then Fred said 'That's bullshit', and he said 'I did', and then Fred told him to leave, and he turned and he walked past me and he said, 'I did, I did' as he walked down the steps. Then I lost sight of him getting into his car... Then he drove down the hill at a speed in a sort of a manner that was a bit too fast for the area at the time and went out the gate and never shut the gate and went home." Mr Browne told police that when he walked past him on the verandah, "he was sort of eyes half closed and sort of a glazed look, and his arms were down beside him, walking very just slow and deliberate". At about 5.00pm he saw him drive into town. 42Mr Robert Sawyer lived also in the vicinity of the accused's house. He thought that he first met the accused in late 2009 on a social occasion and later met the deceased. He met the accused on quite a few occasions over the next few months. He was a friend of Mr Watt and often went to his house. On about three occasions, the accused was also there. He was told by Mr Watt that the accused and the deceased had separated. The accused told him on a subsequent occasion how angry he was about the deceased leaving him and having to pay maintenance and child support and then her rent. He threatened to kill her. This occurred every time he met the accused after the deceased had left. Mr Sawyer said, in effect, that did he not take much notice of the accused's complainants and threats because it "was drunk talk, most of it". He said that, when he met the accused, "he was drunk most of the time". He said that in June or July 2010 he saw him at least once a week. The accused was very drunk on these visits, usually bringing with him a six pack of beer. Mr Sawyer said that the day before the shooting he saw the accused at his house at about 11.00am. He was extremely drunk. The accused complained to him again about having to pay child support and rent and that he wanted to kill the deceased and his daughter. Mr Sawyer got very upset, remonstrated with him and left. He said that the accused was drinking but he did not think "he was that intoxicated", perhaps half way between completely sober and completely drunk. He was there for about 10 minutes. The accused's suggestion that his daughter might not be his child was made only once, which was on the day before the shooting. About a week before this the accused had come to his house "quite drunk" and said the same things about the deceased, but the first time that he mentioned killing his daughter was on the day before the shooting. Some time before 10 July 2010 the accused told Mr Sawyer that he was going to get a gun and kill the deceased saying that it was a .22-250 which he did not have but he could get access to. 43Another neighbour of the accused, was Ms Shaw who had met the accused and the deceased when they had moved into their property. Her statement adds little of significance to the issues in the case but she confirmed the chronic drunkenness mentioned by other witnesses. She was shocked when she heard about the shooting, not having been told about any threats, nor having heard any. She said that she did not have much to do with the accused because he was always drunk. The statement of Ms Margaret Wetherall was also tendered by the prosecutor. 44The police statement of the deceased's father was tendered. The following relevant paragraph appears in his statement - "I have heard [the accused] many times say that he was going to kill people that he had some sort of falling out with over the years that I have known him but it was only ever said when he was drunk and I never believed that he would actually do anything like that. [The accused] would say that he was going to kill someone for the most minor of things that it would be unbelievable that someone would kill or threaten to kill someone over such minor things." The younger brother of the deceased also made a statement to police in which he said that he recalled a night when the family was together that the accused looked at him and said, "If your sister ever leaves me I will shoot her dead". Although the date of this conversation does not appear, it occurred when the deceased was then pregnant and thus took place something like seven years before the offence. 45Gai Donnelly gave evidence that in July 2010 she was working at a bottle shop in Wingham, having been there for some six years on a casual basis. She commenced work at about 9.00am on 10 July 2010 when the accused (whom she had seen many times before but whose name she did not know) entered the shop and purchased a six pack of VB stubbies. His purchases on earlier occasions were similar. He asked whether anyone had handed in his wallet, which he had lost the previous day (no). There was some discussion about the change, about which the accused was correct as Ms Donnelly discovered when she made her reconciliations later in the day. He did not appear to be affected by alcohol. She said that the accused was a frequent customer, at least a couple of days a week. Psychiatric evidence 46The accused's general practitioner, Dr Retnaraja, first saw him in August 2007. On 15 November 2008 he referred the accused to Dr John Sjostedt, a psychologist, for opinion and management. The history set out in the referral was - "Poor sleep. Early morning wakening. Depressed mood. Low self esteem. Irrational fear. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse." 47In his evidence, Dr Retnaraja said that the depression of which the accused complained was due to a serious injury he suffered to his back in September 1994. So far as the "irrational fear" was concerned, the doctor said that his fear concerned both his finances and his back pain. Valium was prescribed because of poor sleep and disturbed sleep pattern. It appears that, although referred to a psychologist, Dr Sjostedt, the accused did not go and he was referred again on 10 May 2010. The referral letter is somewhat cryptic but, as I understand it, the accused complained that he had been short tempered, which had adversely affected his relationship with his partner (the deceased) leading to them not sleeping in the same room and then a separation since 1 May 2010. He had been depressed for over 12 months. The presentation elicited the same matters as mentioned in the earlier referral letter. A mental assessment tool giving a degree of depression showed that he was quite depressed. Amongst other medications he was prescribed Valium and Zoloft, an anti-depressive drug. That drug was first prescribed on 13 January 2010, the date upon which the accused was referred to Dr Koller, a psychiatrist. It seems that the accused did not attend any appointment with Dr Collard. The letter of referral noted that there had not been any previous hospital admissions for depression. On 1 April 2010 the accused again saw Dr Retnaraja who noted that he was "stressed ++". Dr Retnaraja explained this reference meant the accused was distressed because his partner was going to leave him and his daughter would be taken away. On 24 April 2010 the accused told Dr Retnaraja that the dose of Zoloft previously prescribed was not helping and the doctor increased the prescription to 100 milligrams. The doctor said that the accused was not suicidal and did not show any behaviour suggesting he might cause harm to any one. His psychological condition was the same as that previously noted. Dr Retnaraja said that the accused had never indicated anything to him about his heavy drinking, and the doctor only became aware of this from Dr Sjostedt's report dated 10 June 2010 following an examination of the accused in the previous week. The doctor did not see any signs of delirium or dementia or any neurological symptoms. Dr Sjostedt reported the accused's self-scores on the tests he administered were in the extremely severe range for depression, anxiety and stress on a list of 31 negative feelings. Dr Sjostedt suspected that the scores were an exaggeration of his condition but nevertheless the accused is "in a very poor state". The doctor noted - "It is my understanding that [the accused] has been a very heavy drinker for a long period of his life, though he stopped for fifteen years a few years back. He reports that he has been drinking heavily until recently but appears to have stopped, at present. According to [the accused] he is a very bad drunk but a likeable affable man when sober." Dr Sjostedt proposed to treat the accused with several forms of therapy but did not propose any medication. It is worth noting that Dr Retnaraja who saw the accused on 16 August 2007, 24 October 2008, 15 November 2008, 13 January 2010, 2 February 2010, 2 March 2010, 11 March 2010, 1 April 2010, 24 April 2010, 10 May 2010 and 4 June 2010 and never observed the accused to be intoxicated. 48On 9 November 2011 the accused underwent an MRI brain scan which demonstrated a generalised mild enlargement of the spaces in the brain occupied by cerebrospinal fluid, which was out of keeping with the accused's age. Several focal infarcts were noted in the basal ganglia and in the right thalamus and the left head of the caudate nucleus whilst small vessel disease was noted throughout the white matter. The various psychiatrists explained the significance of these findings, to which I come to in due course. 49Dr Susan Pulman, a neuropsychologist, reported on the results of assessment and tests conducted on 28 June, 28 July and 13 August 2011. Dr Pulman reported that on the initial visit the accused was difficult to engage in the process of interview and assessment (although this was done at the instance of his lawyers and, presumably to assist him). Although, at first, the accused said he could not recall events relating to the distant past, after further discussion about the importance of the assessment he cooperated. Dr Pulman noted that he appeared frustrated with his current situation and, after a short period of testing, the assessment was discontinued as it appeared that the accused was not sufficiently motivated to ensure valid test results. On the second visit the accused was curt and appeared very agitated and, when the purpose of the visit was explained, he expressed a clear lack of interest in the testing process. He was uncooperative and disengaged, terminating the testing during the first task, stating it was pointless. On the third visit, although he presented with a similar lack of interest, he said he would comply with the testing on his solicitor's instructions. He agreed to try his best but Dr Pulman noted that the testing "appeared effortful and his level of engagement remained poor". He was quick to give up and often responded, "don't know". He was slow to respond. At the end of the assessment, when asked how he felt he had performed, he said, "to be honest I don't care". Not surprisingly, the test results revealed inconsistencies and variable performance. Dr Pulman summarised - "His current level of intellectual functioning fell within the Borderline range. However, there were several significant differences between the results on various subtests resulting in an invalid interpretation of his full scale IQ. He performed significantly better on non verbal tests with his performance falling in the Average range. His performance on various memory tasks was also highly variable ranging from Extremely Low to Low Average. Basic attention and concentration was Low Average. Performance on tasks of higher order reasoning was also variable with him giving up on tasks, requiring a discontinuation of the test. The results of a self-report measure of psychological functioning suggested severe levels of depression, stress and anxiety. The results of current neuropsychological assessment are on their own difficult to interpret. However, the findings from tests of effort and motivation are consistent with suboptimal effort and suggest that [the accused] was not performing to the best of his abilities. The results are therefore of questionable validity." 50I should mention the information provided in the Emergency Department records from Wilcannia Hospital of 18 May 2004, where his was admitted following a serious motor vehicle accident. These were usefully summarised by Dr Pulman as follows - "History from available medical records Emergency department records from Wilcannia Hospital (18.05.2004) stated that [the accused] was treated at the local police station before being brought to hospital. He appeared "confused" and had allegedly been involved in a motor vehicle accident a number of hours earlier. He was observed to have a bruise on his right temporal lobe and a scratch in his right parietal region. Blood Saturation Level was 14.8mml. Glasgow Coma Scale (GCS) was 15/15 however notes reported "patient seems to have altered memory state. Does answer fully to questions asked but gives a different answer when same question is asked. He changes the context of conversation quickly and talks about what is not asked for. Agrees to loss of memory and is being forgetful though well orientated to place, time and person" (1.45pm, 18.05.2005 [sic]). [The accused] was held overnight for observation before transferred to Broken Hill Base. Brain CT scan (19.05.2004) found no abnormalities. Medical records (dated 19.05.2004) reported that he was still reporting confusion and some loss of memory for the motor vehicle accident. He discharged himself 20.05.2004. According to a letter from his General Practitioner, Dr Edwin Lee (18.05.2004), [the accused's] medical history included hypertension, ischemic heart disease, diabetes, chronic anxiety and alcohol excess." 51Four psychiatrists were called to give evidence, Professor David Greenberg and Dr Sharon Reutens by the prosecutor and Dr Olav Nielssen and Dr Stephen Allnut by the defence. It is not necessary to deal with their reports in detail, since their opinions did not substantially differ. Dr Reutens noted a Minimum Mental State Examination (MMSE) performed on 23 July 2010 scored 24/30. Scores less than 24 are suggestive of cognitive impairment indicating that on this screening test the accused score was at the borderline of cognitive impairment. However, this test is, as Dr Reutens said "a blunt instrument", noting in particular that so called "frontal impairment" - in which judgment and planning are adversely affected - are not demonstrated well in an MMSE and behavioural impairments are not tested. It is important, therefore, not to ascribe too much significance to this test in light of the MRI's demonstration of frontal lobe damage. In another test in which the accused participated without reluctance and appeared to give adequate effort, his score indicated a likelihood ratio for dementia of higher than 100:1. Dr Reutens described the MRI scan as revealing "cortical and sub-cortical atrophy which was greater than might be expected for his age" and small vessel disease. The doctor summarised the position as follows - "SUMMARY AND OPINION [The accused] is a 67 year old gentleman charged with the murder of his wife. He describes depressive symptoms occurring around the time of the incident including a suicide attempt. He described ongoing depressive symptoms at the time of the interview, comprising impaired sleep and appetite, thoughts of death, irritable mood and hopelessness. He has a number of complaints about his physical health and was tearful in the interview. A diagnosis of Major Depressive Episode was considered, however [the accused] enjoys working, his affect was reactive and he stated his symptoms started after the relationship breakdown. A diagnosis of Adjustment Disorder with Depressed Mood is a more accurate encapsulation of the described symptoms. An Adjustment Disorder is a reaction to stressors which exceeds a person's coping abilities, resulting in psychiatric symptoms which either significantly impair function or are greater than might be expected as a reaction to the stressor. [The accused] fulfils DSM-IV-TR criteria for alcohol abuse. He gives a history of a maladaptive pattern of alcohol use which has resulted in legal difficulties and interpersonal problems. [The accused] further demonstrated cognitive impairments in a number of domains such as memory, language and executive functioning which are consistent with a diagnosis of dementia. In my opinion the cognitive impairment cannot be fully explained by [the accused's] depressive symptoms. The cause of the dementia is likely to have been contributed to by long term hazardous alcohol intake, cerebrovascular disease as demonstrated on his brain MRI, and possible Alzheimer's dementia." 52Professor Greenberg was retained to assess the accused's fitness to stand trial and whether or not he had a substantial mental impairment which relevantly affected his behaviour. The former question is moot. Professor Greenberg noted several occasions on which the accused either declined to continue with the interview or refused to see him at all and on another occasion refused to cooperate with attempts to assess his mental state. At his initial interview on 15 September 2012 the accused was reasonably cooperative and answered most of the questions although at times he claimed that he had poor memory and could not recall certain details. When he was questioned about his version of the facts of the alleged offence he only partly cooperated and then stated that he "had enough" and did not want to talk anymore. Again, the accused was initially cooperative on the next day but this deteriorated when the Professor attempted to test his mental state. When asked about his mental state at the time of the offence, he became agitated and walked out. He refused to see the Professor when he attended for the third time and, on the fourth and last visit the accused was guarded and irritable and, shortly after the interview commenced, became uncooperative. The Professor concluded that the accused - "had an abnormality of mind at the time of the alleged offence. He likely had small vessel disease of his brain with resultant old infarct areas of his brain, adjustment disorder with depressed mood, chronic alcoholism, possible cannabis usage and long term effects of valium medication." He concluded - and there is no dispute about this - that the accused had the capacity to understand the nature of the events of the day of the offence and the capacity to understand whether his actions were right or wrong. The accused's capacity to control himself was far more difficult to determine. There is no doubt that he had brain damage in the frontal area of the brain, which is involved in executive functions, such as judgment and decision-making. However, attempts by Dr Pulman to quantify any cognitive impairment were unsuccessful because of the accused's poor cooperation with the testing and interviews. However, one of the tests conducted by Dr Reutens was performed with adequate effort, which confirmed her view that he had cognitive decline. Professor Greenberg concluded as to this aspect - "Given this information, I am of the view that on balance [the accused] likely [has] some memory and some executive dysfunction (early or emerging dementia). The degree of that impairment is difficult to assess because of his depressed mood, poor frustration tolerance and poor cooperation with psychiatric assessment. However, overall I am of the view that his mental capacity was relatively intact, based on the witness statements and recordings on triple 000 calls and Police interviews. Another example of his mental capacity would be evidence... [that, when he purchased liquor on the day of the offence, the accused] was able to recall the amount of money in his wallet, how much he had withdrawn from the bank, how much he had spent and how much he had paid the shop attendant and confront her that he had been given the wrong change." 53Professor Greenberg concluded that the accused's actions flowed from his feelings of anger and vengeance combined with chronic alcohol usage which was likely a significant disinhibiting factor in his actions during the period, as also was his altercation with the deceased about access to the child. He noted that there was evidence of forethought of homicide and possibly suicide prior to the offence. However, the Professor concluded, because of the brain damage demonstrated on the MRI brain scan and his significant Depressed Mood at the time, the accused's capacity to control his actions was impaired. The extent of this impairment was a question difficult to determine and best left, he said, to the trier of fact. 54It is, I think, worth noting that the assessment made by Professor Greenberg - indeed by all the doctors - was made about two years after the date in question when, of course, the accused had been abstinent. As Professor Greenberg agreed, one would expect to see some improvement in his cognition by virtue of that fact. Accordingly, some adjustment needs to be made for the purpose of assessing his cognitive state at the date of the offence. Working in the other direction, however, is his dementia, which would have likely progressed in that intermediate period. Professor Greenberg was cross-examined about the possibility that the slurring by the accused during the triple 0 calls might have been due to a transient ischemic attack but he thought that was a remote possibility because there had been no previous reporting by his doctor as to this matter. He also relied on a lack of report in this respect by witnesses who had seen him. However, they were of the view that he was, to a great or lesser extent, intoxicated and may have well regarded any slurring as due to liquor. It is true that slurring was not particularly mentioned but the possibility of an independent cause, I think, would be most unlikely to have occurred to them. The lack of any report of slurring, therefore, by the witnesses, is not entitled to the significance to which, it seems, Professor Greenberg attributed to it. 55Dr Nielssen saw the accused on 12 and 19 July 2012 whilst he was in the psychogeriatric unit of the Metropolitan Special Purpose Centre at Long Bay. He reported also on the accused's problem with attention, concentration and the orderly retrieval of information, as well as his becoming irritated, venting his anger, and becoming upset in response to obvious difficulties he had in performing screening tests of memory and concentration. Dr Nielssen concluded - "At the time of the offence [the accused] had an abnormality of mind in the form of a state of depression and impairment in intellectual function, arising from his underlying conditions, which were an adjustment disorder and the changes in brain structure and function associated with emerging dementia. His combination of disorders are likely to have had a significant effect on his perception of events, his ability to judge whether his actions were right or wrong and on his ability to control his actions, in addition to the disinhibiting effect of intoxication with alcohol and possibly benzodiazepine [Valium] medication." 56The small vessel disease suffered by the accused is multi-infarct dementia or stroke. The doctor's attention was drawn to the fact that, during the second police interview, at a time when he was undoubtedly sober, there was some slurring evident. Dr Nielssen thought that a possible explanation might be neurological since, for example, slurring is a typical symptom of small infarcts. On the other hand, the doctor did not notice any slurring or speech impairment in articulation during his interviews, though he did notice some word finding and speech organisation problems, which he thought were of neurological origin. He pointed out that many people who suffer strokes improve over hours, days and weeks. (This could explain why, when the accused was interviewed by the various doctors well over a year later, no slurring was observed.) The doctor said the MRI scan findings were completely consistent with his clinical observations of cognitive impairment and impairments in social judgment. He pointed out that vascular dementia was different to Alzheimer's in that it worked, as it were, step wise rather than linearly, so that a patient has a little stroke and suddenly it becomes "a bit worse". He pointed out that there had been a brain injury (demonstrated by the Western Australian hospital records) nine years earlier, long standing alcohol abuse and numerous little strokes, so he was "quite confident there was significant dementia or significant brain pathology evident at the time of the offence". The doctor was taken to the MMSE score of 24/30 (with most points lost on orientation and one point lost on attention and concentration) and pointed out that the test of orientation is quite a sensitive one for cognitive problems of memory. Although it is a screening test, the accused's score would lead him to be "quite suspicious of underlying dementia". 57Dr Allnutt interviewed the accused on 4 October 2013. He was not cooperative, although he did discuss some aspects of the offence, complaining that the discussion upset him. Dr Allnutt pointed out that the accused's poor engagement in testing could be attributable to his Neurocognitive Disorder (Dementia) and Depression, noting not only what was said in other reports but the evidence of structural damage consistent with dementia on the MRI scans. Dr Allnutt concluded that the accused suffered from Vascular Dementia with Alzheimer's subtype as a differential diagnosis. Given his present symptoms, Dr Allnutt thought it reasonable to conclude that, at the time of the offence, he was manifesting early signs of Mild vVscular Neurocognitive Disorder and that erosion of his cognitive facilities was already occurring, although he accepted that this was a difficult determination to make in retrospect. Based on the conclusion that the accused was manifesting cognitive decline at the time of the offence it would, the doctor thought, also be reasonable to accept that those difficulties probably related to executive functioning. The doctor said that Mild Vascular Neurocognitive Disorder need not manifest in the form of obvious memory impairment and can manifest in the form of executive dysfunction and poor social judgment characterised by disinhibition, a reduced capacity for personal restraint and inappropriate social behaviour. In this event, he would have been finding it difficult to organise and plan, which would have increased his reliance on the victim and added to feelings of loss and anger at her absence, together with the multiple losses he experienced leading up the offence including the belief that his partner was having an affair with other men, thus contributing to the emergence of depressive symptoms which appeared to have been active at the material time. Depression tends to aggravate the negative perception of one's self, others and one's environment and can compound underlying feelings of irritability and anger and generate aggression. In summary, Dr Allnutt thought that at the material time the accused was, on balance, experiencing the underlying condition of Mild Vascular Neurocognitive Disorder secondary to multiple medical conditions and chronic alcohol abuse and a Depressive Episode. The underlying condition did not cause an abnormality of mind of the nature and severity that it impacted on his capacity to understand events or his capacity to judge right from wrong. As to the capacity to control his actions, this was difficult to determine because of the time that had elapsed since the offence, during which the accused's mental state had deteriorated, as well as inadequate performance on neuropsychological testing. In this context, if his alcohol and diazepam blood levels were inconsistent with intoxication at the time of the offence, then his slurred speech needed an explanation, most likely the underlying Neurocognitive Disorder and the aggravating effect of even low blood levels of alcohol and diazepam on his cognitive functioning. The doctor considered that, if it were accepted that the accused had Mild Vascular Neurocognitive Disorder manifesting with early executive cognitive decline at the material time, then it was possible to infer that he was experiencing erosion of his executive functions and would have been less capable of exerting cognitive inhibition when experiencing high levels of emotion such as anger or stress and probably cognitive inflexibility as well. In sum, there was no doubt that he was feeling anger and depression which had been present for a considerable period of time, that there was probably a trigger in the earlier conversation with the deceased but, in choosing his course of action, he was less capable in a real sense, due to his Neurocognitive Disorder causing executive dysfunction to apply inhibition as a normal person would have. 58The reports of the Mental Health Review Tribunal on the accused's fitness to plead were also tendered, but they add nothing of significance to the above material. 59It is undisputed that the accused, at the time of the killing, suffered both from brain damage and either depression or a depressed mood, each of which is, undoubtedly, "an underlying condition". To satisfy the first condition imposed by s 23A(1)(a), the impairment must be more than trivial or minimal. The measure is essentially incommensurable. There is no point in multiplying adjectives though, perhaps, a useful synonym is "significant". At all events, my own judgment, informed of course by the medical evidence, is that more probably than not the condition specified in s 23A(1)(a) has been satisfied in that, at the time of shooting the deceased, the accused's executive function and judgment and capacity to control himself were substantially impaired by an abnormality of mind arising from an underlying condition within the meaning of the paragraph. I deal with the question whether this impairment was so substantial as to warrant his liability for murder being reduced to manslaughter after considering further matters. Intoxication 60Section 23A(3) of the Act provides that the effects of self-induced intoxication are to be disregarded for the purpose of determining whether, in accordance with the section, murder is justifiably reduced to manslaughter. Evidence was called from Dr Judith Perl, a forensic pharmacologist with the Clinical Forensic Medicine Unit at the Sydney Police Centre. She noted the blood sample taken from the accused at 12.50am on 11 July 2010 contained diazepam and nordiazepam but no alcohol. She (accurately) summarised the evidence as to drinking as follows: the witnesses said the accused was seen to be drinking from a can of mid-strength beer between 9.00am and 11.00am, a stubby of full-strength beer at around 11.00am and had opened a can of pre-mixed bourbon around 11.30am and had a can in his hand around 1.00pm whilst, after the shots were heard, he was seen sitting on the verandah drinking from a can. Whilst he was being pursued by police he had a drink from a VB stubby which was found partly empty on the seat. He stated to the triple 0 operator that he had had about half a dozen beers and told a police officer he drank two stubbies of VB after the incident. Dr Perl concluded that this information, including the observations made by his neighbours indicated that at the time of the incident the accused had a positive blood alcohol concentration, but it was highly unlikely that this was so significant as to affect his memory or reasoning or render him incapable of making decisions and carrying them out. Dr Perl thought that the blood concentrations of diazepam and nordiazepam were consistent with the accused's daily use as prescribed and with his having taken it around 7.00am, as he had stated. Dr Perl listened to the two triple 0 calls and watched the interview conducted with the accused at 10.00pm and also the forensic procedure conducted at 12.50am the following morning. She noted that the accused appeared to have some impairment of speech which sounded like slurring but his responses were not unusually delayed, as one might expect in a significantly intoxicated person, nor was his speech significantly slurred, as one might expect in an intoxicated person. Furthermore, his movements were not obviously impaired and his responses were appropriate and lucid. Dr Perl said that the accused appeared to her to be much the same throughout the period from his first triple 0 call to the time the blood sample was taken. Indeed, this is my own impression of those conversations, at least up to the second interview which commenced at 10.00pm. 61Dr Perl's opinion was directed to whether the accused might have been so intoxicated at the time of the incident to have rendered him unable to make decisions and carry them out and rightly concluded that this was not the case. However, once one disregards the slurring, his mode of speech, coherence and lucidity at the time in particular of the triple 0 calls not only do not show intoxication but, to my mind, justify the conclusion that, more probably than not he was not significantly intoxicated at the time of shooting, although he may have had a number of drinks earlier in the day. It may be, of course, that he was somewhat intoxicated by the time he was observed by police at the point of his arrest and by Mr Blick when he had been brought to the police station but I accept his account of drinking following the incident. I note also that, having bought a six pack at about 9.00am in the morning, the police located unopened stubbies in his car when he was arrested. The fact that there was no improvement discernible in his mode of speech between the time of the triple 0 calls (when the state of his intoxication is unknown) and the time of his interview at 10.00pm (when he was certainly sober) is to my mind a significant indicator that on the earlier occasions he was also not intoxicated. That history leads me to conclude that it is most likely that the slurring was due to a temporary stroke. I am satisfied that, more probably than not, even if alcohol was in his bloodstream at the time of the offence, he was not intoxicated within the meaning of s 23A(3) of the Act. Provocation 62Mr Ramage QC, counsel for the accused, has submitted that I should find that the prosecution has not disproved the reasonable possibility that the accused acted under provocation at the time of his shooting of the deceased. The prosecution (rightly) did not seek to submit that the issue of provocation had not been raised but, rather, submitted that there was no reasonable possibility that the accused acted under provocation within the meaning of s 23 of the Act. The act causing death is an act done under provocation where - (i)the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting him, and (ii)the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased. It matters not whether the conduct of the deceased which induced the accused to kill her occurred immediately before he did so or at any previous time. 63Here, it is not suggested that the claimed provocative conduct was confined to what was said in the telephone conversations on the morning of 10 July 2010 or the later conversation that may have occurred immediately before the shooting but, as I understand it, on the accumulated behaviour of the deceased towards the accused, including her relationship with Mr Watt and the suggestion made by the deceased that their daughter was not his child, which had particular point in the context of demands made that he should pay maintenance which must have included, of course, the support for the girl he believed was his daughter. Of course, in no sense could the killing of the deceased be regarded as proportional to the provocation, if any, offered but this is not a necessary condition of the defence. It only necessary that the provocation might possibly have induced an ordinary person to have formed the intent to kill. Nor is it necessary that such an ordinary person would have been induced to commit the actual killing as distinct from having an intent to kill. 64Aside from the material to which I have already referred, from the accused's neighbours and what he said to the triple 0 operators and the police officers, the accused gave accounts to the assessing psychiatrists. It was not submitted by the prosecution that these accounts were not admissible as to their truth. Rather, it was submitted, that I would be sceptical about the weight which should be attributed to them, considering that they differed in a number of respects from what the accused himself had earlier said. Furthermore, they were given after significant delays (the earliest in July 2012) with the attendant risks not only of confabulation and confusion but of reconstructing events for reasons of self-justification. It is reasonable to bear these considerations in mind. I note that the accused's accounts are inconsistent in some respects as to matters which are not, of themselves, significant in terms of his state of mind at the time of the killing. In my view the inconsistencies more likely reflect a combination of the ordinary failures of human recollection combined with his increasing dementia, rather than any attempt to create a defence. The following accounts focus on the events on or shortly before 10 July 2010 as related to the psychiatrists. 65To Dr Nielssen, the accused said that the incident stemmed from arguments over his wish to see their daughter. He said that the deceased telephoned him on the morning of 10 July 2010 about this matter in which she told him, "It's not your child anyway". He said that he felt "wild" when she did not allow him to see the child as previously arranged although she later rang him back and told him that he could come and collect her. He said that he had planned to take his rifle to a paddock across the road and "take it out on some shooting". He said he remembered wanting to adjust the rifle sights. He said that he had no memory of the actual offence or of the conversations he had before or after it, the circumstances of his arrest or of participating in an electronically recorded interview. He said that, having read the brief of evidence and the autopsy report, he accepted that he had shot the deceased at close range with the rifle saying, "it was my car there it was my gun it must have been me but I don't remember any of it". He said that he had no memory of the thoughts going through his mind or of having planned to shoot her or shoot himself at any stage. He told Dr Nielssen about the other issues that had upset him, namely the deceased leaving him and asking for half of the property including her selling a horse he bought for their daughter. He was also upset that he had arranged for her to receive a carer's pension to look after him but she had not provided him with any care, instead taking a job on an avocado farm. He was mainly upset, however, because the deceased was inconsistent in allowing him access to the child. As to his state of mind about the time of the offence, the accused said that he remembered feeling depressed and as though his life was over and that, about a week before, he had attempted suicide by deliberately running his truck off the road but it had become jammed in gum trees and he emerged unscathed, though the truck was written off. (That he had in fact driven off the road down a steep embankment and the vehicle was jammed in some trees was confirmed by witnesses. However, it actually occurred about six weeks before the shooting.) 66Dr Reutens saw the accused on 30 August 2012. Amongst other things, he told her that he asked the deceased to leave because he believed she was having an affair with their neighbour and said that their daughter had told him that she had witnessed the deceased kissing the neighbour. The accused said, "I reckon she slept with a lot of people". He confronted her, asked her to leave and assisted her to move to Wingham. He said he had access to his daughter every weekend. His alcohol intake increased after the deceased left but he was unable to quantify the amount. The accused told Dr Reutens that, in addition to the suspected affair, he was angry with the deceased because of her financial demands. He was unhappy with her decision to sell two horses and annoyed that her family had stayed with them for some months. He said that, on the day of the incident, he had expected his daughter to stay overnight but that the deceased telephoned him that day to say that she could not stay overnight because he had been drunk the last time she stayed over, the week before, and they had an argument. The accused said he was annoyed about this. The journey between his house and the deceased's was 25 minutes one way and he did not want to have to pick up his daughter up and drop her off as that would be an hour's trip each time. He said that he planned to go shooting and that is why he had the gun in the car. He drove to the deceased's house where they had an argument and she said words to the effect, "who said it was your baby?" and he picked up the gun and shot her. He said that he had drunk alcohol and consumed Valium that day but could not remember any quantities. He gave an account of being depressed after the separation and trying to kill himself by crashing a vehicle. 67Professor Greenberg saw the accused in September 2012. Amongst other things, he told him the deceased was having an affair with a neighbour and that she and this neighbour were growing cannabis together. He said that approximately 18 months prior to the alleged offence he tried to kill himself by crashing his truck. The accused told Professor Greenberg that, when the deceased called him in the morning of 10 July 2010, she asked him if he was going to pick up the "baby" and he said that he would be there in half an hour but that after he arrived she told him that he could not have her and accused him of drinking alcohol. She said that the baby was bathed and he could not take the baby with him anymore. He said that he swore at her and went home. He said that he was going across the road to do some shooting with his rifle when the deceased rang and apologised for what had happened. He said that he then put the gun in the car and went back to the deceased's house. When he arrived at the house and asked her where the baby was, she said "what baby?" He confronted her for having made him drive so many kilometres and yet the baby was not there. At this point, the accused said that he should not be talking to the Professor because "this was another version of the facts". After an explanation about the purpose of the assessment the Professor asked the accused what he was thinking of at the time when he returned to the deceased's house. The accused said that he was not sure what he was thinking that day. He said that the deceased said to him, "Who said that the baby's yours". He said that he thought she had been "'milking him for money' for the past seven or eight years". He said that he did not have any memory of what happened after that point in time although he was aware that his partner was shot having read it in the autopsy report. He said he could not recall shooting her. When asked why he thought he had reportedly shot the deceased he stated that after she had "screwed the neighbour" he had lost two houses and posed the question "What would I do?" At that point he said that the Professor had upset him and left the room. Two weeks later Professor Greenberg again saw the accused and, amongst other things, asked him again about the events of 10 July 2010. The accused told him that he returned a second time to the deceased's house because she called and said that he could now have the "baby". He had taken the rifle out of the bedroom and was going across the road to do some shooting when she called. He said that he drove to the deceased's and asked for the child but she said, "who said it's your kid anyway", so he went to the car and, seeing the rifle there, "I picked it up. Thought I'd scare the bitch. Anyway I don't remember anything after that". In effect, he denied having threatened to kill the deceased before the day of the shooting. He said that the deceased was having an affair with Mr Watt, which he had known about "for quite a while", but could not give a timeline. He then declined to answer any further questions about his mental state or behaviour and the interview was abruptly terminated. 68I am satisfied beyond reasonable doubt that, when the accused left his home to travel to Wingham with the rifle in the motor vehicle he had it in mind to kill the deceased. It is clear that the notion of killing the deceased had been present in his mind for a significant period (after she left him and before 10 July 2010) although maybe he did not actually decide to do so until that day. Having regard particularly to what he said to his neighbours on the morning of 10 July 2010, it is impossible to accept that the rifle was in the car accidentally. It may be he had not made a final decision to shoot the deceased at that point, since when he reached the house and walked onto the verandah, he did not have the rifle with him. However that may be, after the exchange (which I accept then occurred) his decision to kill the deceased crystallised if it had not already done so. He fired a number of shots which, although in quick succession, required him to manipulate the bolt on the rifle each time. He gave an explanation of what had happened and why it had happened to the triple 0 operators shortly after the event. His explanation for his actions was inconsistent with a loss of self-control as was the justification in effect, that he had no choice but to do what he did. 69Accordingly, although I would accept that it is reasonably possible that the accused's shooting of the deceased was a reaction to her conduct, I am satisfied beyond a reasonable doubt that he had not lost his self-control. It is therefore unnecessary for me to consider the second limb of the defence, which the prosecutor was required otherwise to disprove and therefore whether the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill her. 70In fairness, I should point out that, in describing the conduct of the deceased from the accused's point of view, I do not suggest in any way that she had acted wrongly, improperly or, for that matter, unfairly towards the accused. Substantial impairment by abnormality of mind 71Section 23A(1) provides for two conditions that must be met before liability for murder can be reduced to manslaughter under this head. As previously stated, the first requirement has been satisfied. The remaining question is whether that impairment warrants a finding of manslaughter rather than murder - the other elements of murder being satisfied. This is, of course, not a medical question but an evaluative one requiring a realistic and common sense view of the extent to which the accused's impairment of mind affected his moral or criminal culpability. Put another way, the question involves considering the extent to which, because of his mental impairments, the accused was answerable for what he did including, of course, the intention with which he did it. It is not a matter for nice analysis but for judgment, considering all the relevant facts surrounding the offence, the motivations and feelings of the accused and, of course, his mental impairment. 72In the result, I am satisfied on the balance of probabilities that the accused's impairments did so significantly affect his judgment, in particular (but not exclusively) his ability to control his actions and his deciding to shoot the deceased. The requirement of s 23A(1)(b) is therefore satisfied. Conclusion 73The appropriate finding is that the accused on the limited evidence available, is not guilty of murder but is guilty of manslaughter.