Supreme Court New South Wales Medium Neutral Citation: R v Quinn (No 2) [2016] NSWSC 1244 Hearing dates: 8 August 2016, 9 August 2016, 10 August 2016, 11 August 2016, 15 August 2016, 16 August 2016, 17 August 2016, 18 August 2016, 19 August 2016, 22 August 2016, 23 August 2016, 24 August 2016, 25 August 2016 and 30 August 2016 Date of orders: 08 September 2016 Decision date: 08 September 2016 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: (1) The Court finds the accused guilty of murder; (2) The accused is convicted of murder; (3) The Court directs that the proceedings standover for submissions on sentence on Friday, 14 October 2016 at 10.00am. Catchwords: CRIMINAL LAW – murder – trial by judge alone – accused alleged to have stabbed ex-girlfriend – cause of death blood loss from stab wound to the neck – accused immediately stabbed himself in chest and neck afterwards – accused contended that stabbing accidental – accused also raised defence of substantial impairment – Crown case circumstantial – necessary to consider all circumstances established by evidence – whether any reasonable inference or conclusion open that is inconsistent with the conclusion that the accused deliberately stabbed deceased – Crown established deceased broke relationship off with accused and accused distressed by breakup – Crown established stab and incised wounds to the neck and defensive wounds to deceased's hand – given nature of wounds and other circumstances of killing no inference reasonably open other than accused deliberated stabbed the deceased in the neck – only rational inference is that accused intended to kill deceased – substantial impairment – accused affected by obsessive compulsive disorder and borderline personality disorder – established abnormality of mind due to underlying condition – failed to establish substantial impairment of capacity to understand events or judge whether his actions right or wrong – absence of reliable narrative from accused meant failed to establish substantial impairment of capacity to control himself – partial defence of substantial impairment failed – accused guilty of murder Legislation Cited: Crimes Amendment (Provocation) Act 2014 (NSW) Crimes Amendment (Diminished Responsibility) Act 1997 (NSW) Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Haoui v Regina (2008) 118 A Crim R 331; [2008] NSWCCA 209 Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 R v Byrne [1960] 2 QB 396 R v Cheatham [2002] NSWCCA 360 R v Hillier (2007) 228 CLR 618; [2007] HCA 13 R v Kaewklom (No. 1) [2012] NSWSC 1103 R v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 R v Maric [2009] NSWSC 346 R v Murphy (1985) 4 NSWLR 42 R v Quinn (No 1) [2016] NSWSC 1101 R v Ryan (1995) 90 A Crim R 191 R v Spriggs [1958] 1 QB 270 R v Trotter (1993) 35 NSWLR 428 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 The Queen v Baden-Clay [2016] HCA 35 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Regina Michael James Quinn Representation: Counsel: Mr M Hobart SC (Crown) Ms J Manuell SC (Accused) Solicitors: Ms K Speirs, Solicitor for Public Prosecutions (Crown) Mr C Cole, William O'Brien and Ross Hudson Solicitors (Accused) File Number(s): 2013/275908 Publication restriction: Nil Judgment 1. On 8 August 2016, the accused, Michael James Quinn, was arraigned in this Court on an indictment that charged him with murdering Cherie Vize at Farmborough Heights in this state on 22 July 2013. He pleaded not guilty. Previously, on the application of the accused and with the consent of the prosecution, I ordered that the accused be tried by a Judge alone (Criminal Procedure Act 1986 (NSW); s 132(2)). Accordingly, the accused's trial proceeded before me sitting without a jury. Final submissions concluded on 30 August 2016. Each of the Crown and the accused were well represented by experienced Senior Counsel. 2. Sometime during the evening of 22 July 2013 Ms Vize died at Wollongong Hospital from blood loss consequent upon a cut to the carotid artery and jugular vein in her neck. At the time of her death she was 25 years of age. Ms Vize was a peaceful person. She had a passion for visual arts and her passing has caused much sadness to her family and friends. 3. Ms Vize received the fatal wound at, or around, 10.30am on 22 July 2013 while she was in the front yard of residential premises occupied by the accused, his brother and their parents. Prior to her death, the accused and Ms Vize had been in a relationship for a number of years. The Crown alleged that, in the weeks prior to her death, Ms Vize told the accused that their relationship was over and she was seeing someone else. The Crown accepted that the accused and Ms Vize still remained close so much so that she stayed at the accused's home on the evening of 21 July 2013. However the Crown alleged that only occurred in the context of Ms Vize making it clear to the accused that she was leaving the relationship. The Crown alleged that the combination of the accused being told that as well as viewing a Facebook post and a text message about Ms Vize's new relationship led to the accused deliberately stabbing Ms Vize in the neck with an intention to kill her on the morning of 22 July 2013. 4. The accused gave evidence. The accused stated that it was he and not Ms Vize that had ended the relationship yet she insisted on it continuing. The accused stated that he became despondent at the prospect of them both becoming trapped in what he called a dysfunctional relationship with each other. The accused stated that he decided that it would be best for the deceased if he, that is the accused, took his own life as that would "allow Cherie to be free to do whatever she wanted." The accused said that the cutting of Ms Vize's throat was an accident that occurred only after she intervened to stop him stabbing himself. In addition to denying that he deliberately stabbed Ms Vize, the accused contended that, even if his actions were deliberate and otherwise constitute the crime of murder, his criminal culpability should be reduced from murder to manslaughter because he established the partial defence of substantial impairment by abnormality of mind provided for by s 23A of the Crimes Act 1900 (NSW). 5. One matter that is not in dispute is that immediately after Ms Vize's throat was cut the accused stabbed himself in the chest and neck, resulting in him experiencing quadriplegia. 6. For the reasons set out in the balance of this judgment, I find the accused guilty of murder. In summary, I accept that the Crown has proven beyond reasonable doubt that the accused deliberately stabbed Ms Vize. I am satisfied of that because I am satisfied that the only reasonable inference that can be drawn from a consideration of all the established facts is that the accused deliberately stabbed Ms Vize. In particular, based on a number of facts, including the presence of the accused's DNA on the handle of a knife which had Ms Vize's blood on its blade, I am satisfied that the inference is clearly open that the accused deliberately stabbed her. I am also satisfied that the Crown excluded the possibility that Ms Vize self-harmed or that she was accidentally stabbed in the manner suggested, or similar to that suggested, by the accused in his evidence. Amongst other matters, the knife injuries to Ms Vize's neck and right hand were inconsistent with both of those possibilities. 7. As the evidence was unequivocal that the stab wound to Ms Vize's neck was the cause of her death, I am satisfied beyond reasonable doubt of that fact. I am also satisfied beyond reasonable doubt that the accused intended to kill Ms Vize and that, prior to stabbing her, he formed an intention to kill himself. 8. I also find that the accused failed to establish the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act. I accept the opinion of the psychiatrists who gave evidence that the accused had an abnormality of mind arising from an underlying condition namely Obsessive Compulsive Disorder ("OCD") and borderline personality disorder ("BPD"). However, in the absence of a reliable narrative from the accused concerning when he formed an intention to kill and what steps he took to give effect to that intention, I am not persuaded, on the balance of probabilities, that at the time he stabbed Ms Vize the accused's capacity to control himself was substantially impaired. For similar reasons, I am not satisfied that it has been demonstrated on the balance of probabilities that the accused's capacity to understand events or judge whether his actions were right or wrong was substantially impaired at the time he stabbed Ms Vize. 9. The balance of these reasons are structured as follows: (1) Principles of Law and Warnings (at [10]) (A) Murder and manslaughter (at [11]) (B) Inferences (at [15]) (C) Accused's evidence (at [19]) (D) Character (at [21]) (E) Substantial impairment (at [22]) (2) Crown Evidence – Events of 22 July 2013 (at [35]) (A) Layout of the accused's home (at [37]) (B) Joanne Quinn (at [39]) (C) Thomas Quinn (at [60]) (D) Sheree Broad and the triple-0 call (at [75]) (E) Gerhard Warth (at [82]) (F) Police, paramedic and medical response (at [85]) (G) Crime scene observations (at [93]) (H) Post-mortem analysis (at [99]) (I) Assessment (at [122]) (3) Crown Case: The Breakup of the Relationship (at [132]) (A) Evansueda Vize (at [135]) (B) Medina Hasic (at [142]) (C) Melody Loke (at [152]) (D) Andrew Meyers (at [155]) (E) Telephone and SMS records (at [157]) (F) Assessment (at [163]) (4) The Accused's Case (at [170]) (A) The accused's evidence (at [171]) (B) 2009 incident (at [194]) (C) Assessment (at [204]) (D) Consciousness of guilt (at [207]) (5) Murder (at [210]) (A) Deliberate act (at [210]) (B) Causation and intention (at [231]) (6) Provocation (at [237]) (7) Substantial Impairment (at [235]) (A) Dr Stephen Allnutt (at [238]) (B) Dr Richard Furst (at [256]) (C) Dr Olav Neilssen (at [271]) (D) Abnormality of mind (at [284]) (E) Substantially impaired capacity to understand events (at [287]) (F) Substantially impaired capacity to judge whether his actions were right or wrong (at [295]) (G) Substantially impaired capacity to control himself (at [303]) (H) Subsection 23A(1)(b) of the Crimes Act (at [314]) (8) Conclusion (at [315]) (1) Principles of Law and Warnings 1. Section 133(2) of the Criminal Procedure Act requires that the judgment in a trial by judge alone "must include the principles of law applied by the Judge and the findings of fact on which the Judge relied". Section 133(3) provides that "[i]f any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." The findings of fact on which I, as the trial judge, "relied" are set out in the balance of this judgment. However, it is appropriate at this point to record the applicable principles of law and any "warning" that I have taken into account. (A) Murder and manslaughter 1. Section 18(1)(a) of the Crimes Act relevantly provides that the crime of murder shall be taken to have been committed where the "act of the accused" caused the death charged and was done with an intention to kill or inflict grievous bodily harm. In this context, "grievously bodily harm" means "really serious injury". [1] Section 18(1)(b) provides that "[e]very other punishable homicide shall be taken to be manslaughter." 2. It follows that to prove the accused's guilt on the charge of murder, the Crown must prove beyond reasonable doubt that there was a deliberate act of the accused, in this case a stabbing, that the act caused the death of Ms Vize and that in stabbing Ms Vize the accused intended to kill or inflict grievous bodily harm upon her. If the Crown can prove all those elements beyond reasonable doubt, then it will be necessary to consider whether the accused has established the partial defence of substantial impairment. 3. If the Crown cannot establish beyond reasonable doubt that the accused deliberately stabbed Ms Vize and that act caused her death, then the appropriate verdict is not guilty of murder and not guilty of manslaughter. 4. If the Crown can prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize and that act caused her death, but cannot prove that he did so with an intention to kill or cause grievous bodily harm, then it will be necessary to consider whether he is guilty of manslaughter by reason of an unlawful and dangerous act. In the absence of any evidence capable of raising a lawful excuse, stabbing someone with a knife is clearly unlawful. For an act to be dangerous it must be one that a reasonable person in the position of the accused would have appreciated exposed another person to a risk of serious injury. [2] (B) Inferences 1. As stated, the onus is on the Crown to prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize, that in doing so he caused her death, and that he did so with the intention of causing death or grievous bodily harm. There is no direct evidence that the accused stabbed Ms Vize. Other than the accused and Ms Vize, no one was present at the precise instant when Ms Vize's throat was cut. Instead, the Crown seeks to demonstrate that the accused deliberately stabbed her by inference from the primary facts it contends that it has proven. 2. It follows that the Crown case is circumstantial. This means that the Crown must first demonstrate that the inference or conclusion that the accused deliberately stabbed Ms Vize is a reasonable one to draw from the facts established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused deliberately stabbed Ms Vize. If there is any other reasonable inference or conclusion open on those facts that is inconsistent with that conclusion then the Crown's circumstantial case fails. [3] In considering the Crown's case, I must consider all of the circumstances established by the evidence and weigh them up in deciding whether there is an inference consistent with innocence reasonably open on the evidence. [4] A circumstantial case is not to be considered in a "piecemeal fashion". [5] 3. In this case there is no indispensable fact or circumstance that the Crown must prove as part of its circumstantial case; ie the Crown case is not a "link in the chain" case but a "strand in the cable" case. It follows that the circumstances relied on by the Crown need not be established beyond reasonable doubt. [6] 4. The Crown also seeks to prove that the accused had the requisite intent by inference from the alleged fact that he deliberately stabbed Ms Vize. As proof of that element of the crime is required beyond reasonable doubt, and as that is sought to be done by inference, then it follows that I should not draw any such inference unless it is the only rational inference in the circumstances. [7] (C) Accused's evidence 1. As stated, the accused gave evidence and the effect of his evidence was that Ms Vize's throat was cut accidentally when she intervened to stop him from killing himself. If I was to accept this aspect of the accused's version of events then I would enter a verdict of not guilty to murder and manslaughter because, in that event, the Crown would have failed to prove beyond reasonable doubt that the accused deliberately stabbed Ms Vize. Further, even if I did not positively accept the accused's account, then the same result would follow if the Crown has not excluded the reasonable possibility that his version of the facts in that respect is true. In that event the Crown will also have failed to prove the accused's guilt beyond reasonable doubt. 2. Further, even if I were to reject the accused's version in its entirety, the obligation would still remain on the Crown to prove its case beyond reasonable doubt. In its written submissions the Crown contended that the accused lied both when he gave evidence and when he spoke to various psychiatrists about his relationship with Ms Vize and the circumstances of her death. [8] The Crown submitted that I could use those lies as evidence of a "consciousness of guilt" on the accused's part. Before I could use any lies told by the accused in that way the alleged lie must be precisely identified, [9] it must be shown to be a lie (ie a statement by the accused that was untrue and known by the accused to be untrue), and it must relate to a material issue in the trial. [10] If satisfied of those matters, I would then have to consider whether there is a reason for the accused to tell the lie apart from a realisation of his guilt. [11] Only if I concluded that there were no such reason could I then use the lie as a form of admission. [12] Otherwise, if I were to conclude that the accused lied but the lie did not meet the requirements for demonstrating a consciousness of guilt, I could not use that finding as evidence supporting the Crown case (although it can be considered as a matter affecting his credit). [13] (D) Character 1. It was common ground that the accused has no convictions for any criminal offence and that, prior to the events of 22 July 2013, no complaint that he engaged in any act of domestic violence had been made against him. Accordingly, the accused is taken to be a person of good character. I can and do use that fact as evidence that he was unlikely to have committed the crime of murder (or manslaughter). I can, and do, use that fact as supporting his credibility that is by reasoning that he is less likely to lie or give a false account either in giving evidence or in his dealings with others. [14] I have considered and taken into account the accused's character in both respects. (E) Substantial Impairment 1. Section 23A of the Crimes Act relevantly provides: "(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. … (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. … (8) In this section: Underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind." (emphasis in original) 1. Section 23A was introduced into the Crimes Act with effect from 3 April 1998. [15] However, authorities dealing with its predecessor and its equivalent in the United Kingdom are still considered when this provision is applied. [16] In many respects, the above provision is a synthesis of those decisions. 2. The partial defence provided by s 23A can be conveniently broken down into three elements. First, the accused person must demonstrate that, at the time they committed the act causing death, they were subject to an "abnormality of mind arising from an underlying condition" within the meaning of subsection 23A(8). Second, the accused must establish a substantial impairment of at least one of three capacities at that time and "by" (reason of) that abnormality. The three capacities are the accused's capacity to understand events, judge whether his actions were right or wrong and control himself. Third, the tribunal of fact must be persuaded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)). Each of these elements are interrelated. 3. The following passage from the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 ("Byrne") at 403 is commonly cited as explanatory of the concept of abnormality of mind and its interrelationship with an impairment of an accused's capacity: [17] "'Abnormality' of mind", which has to be contrasted with the time-honoured expression in the M'Naughten Rules 'defect of reason', means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression "mental responsibility for his acts" points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of his ability to exercise will power to control his physical acts. Whether the accused was at the time of the killing suffering from an "abnormality of mind" in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into account consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence." (emphasis added) 1. In R v Ryan (1995) 90 A Crim R 191 at 195 ("Ryan"), Hunt CJ at CL referred to an abnormality of mind existing "where there is a deviation from the range over which they may vary in ordinary people". This aspect of Ryan has been repeatedly approved. [18] 2. In Trotter, Hunt CJ at CL cited the above passage from Byrne and then addressed the need for the impairment to be "substantial". His Honour stated: [19] "Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial …To be substantial, the impairment may be less than total, but it must be more than trivial or minimal". 1. One matter of potential significance to this element of the defence is the concept of control that underlies the phrase "capacity to … control himself or herself" in s 23A(1)(a). This must be a wider concept than voluntariness. If it were not, then it is unlikely that s 23A would ever arise for determination in that if the relevant act were not voluntary the accused would be acquitted outright. 2. In Byrne, Lord Parker CJ explained that, prior to the passing of the Homicide Act 1957 (UK), which included a defence of substantial impairment, the concept of a loss of self-control was only relevant to provocation. [20] The inclusion of a partial defence of substantial impairment had the effect of conditionally extending a partial defence to murder from an accused who lost their "self-control" in circumstances that would cause that to occur in a "reasonable person" (ie provocation) to an accused affected by an underlying condition which affected their self-control. [21] The phrase loss of "self-control" is found in s 23 of the Crimes Act, which addresses provocation. 3. In the above passage from Byrne, Lord Parker CJ described the concept of control as the "ability to exercise will power to control physical acts in accordance with [a] rational judgment" formed about whether an action is right or wrong. Hunt CJ at CL referred to this passage with approval in Trotter when referring to "a person's ability to exercise willpower to control his physical actions". [22] Further, in Byrne, Lord Parker CJ stated: [23] "… in a case where the abnormality of mind is one which affects the accused's self control the step between 'he did not resist his impulse' and 'he could not resist his impulse' is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common sense way." 1. His Lordship referred with approval to R v Spriggs [1958] 1 QB 270 ("Spriggs") at 276, in which Lord Goddard concluded it is the duty of the trial judge not to engage in drawing "metaphysical distinctions" but instead to refer the jury to the terms of the section and in effect apply its ordinary meaning. In Cheatham at [106] Smart AJ (with whom Beazley JA and Bell J agreed on this issue) referred to Spriggs with approval although his Honour added that: [24] "… it is necessary for the judge to tell the jury that in determining whether the accused was suffering such abnormality of mind as substantially impaired his mental responsibility for the acts or omissions (in the present case the stabbings) they must take into account the perceptions of events of the accused and the nature and extent of any impairment of his perceptions, his capacity to understand events and his ability or capacity to form a sensible judgment as to whether his actions were right or wrong." Cheatham concerned the predecessor to the current version of s 23A, but nothing turns on that. 1. In relation to s 23A(1)(b), in Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at [33] to [35] Johnson J (with whom McClellan CJ at CL and Fullerton J agreed) stated: "33 It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question". 34 The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s.23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter "is both a legal distinction and a moral one" (SU66). Manslaughter is regarded as "having less culpability than murder and it is, therefore, punished less severely" (SU66). If that "incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter" (SU68). 35 Section 23A(1)(b) has been described as giving rise to "an issue which is quintessentially one for the determination of a jury": R v Hucker [2002] NSWSC 1068 at [2] (Howie J). " 1. Save for one matter these observations apply to this Court's task under s 23(1)(b). In [33] of the above extract, Johnson J cites Trotter at 431 as authority for the proposition that "an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter". That approach to determining whether an impairment is substantial reflected the wording of the former s 23A, which referred to whether the accused was "suffering from such abnormality of mind as substantially impaired his mental responsibility" for his or her acts or omissions as warranted liability for murder being reduced to manslaughter. Section 23A(1)(a) now requires the accused to demonstrate a "substantial impairment" of one of their capacities. If that is demonstrated, then s 23A(1)(b) requires the Court to consider whether the "impairment was so substantial" as to warrant a reduction in the accused's criminal culpability. It is that issue which is a "value judgment by the jury representing the community [and] not a finding of medical fact". [25] 2. In her oral submissions, Senior Counsel for the accused, Ms Manuell SC, submitted that such an assessment should include a consideration of the nature of the abnormality, the extent or degree of the impairment, the accused's thought processes and the extent to which the accused differs from the "ordinary person" in that respect. I agree that it includes those matters. [26] (2) Crown Evidence – Events of 22 July 2013 1. Leaving aside the psychiatric evidence, the evidence adduced by the Crown addressed two topics, namely the events on the morning of 22 July 2013 and the course of the relationship between the accused and Ms Vize that led to her being at the accused's home that morning. To an extent I will outline the evidence on those topics separately although some witnesses gave evidence on both. 2. As stated, there were no witnesses who saw the instant when Ms Vize's throat was cut in the front yard of the accused's home. Instead, the first witness on the scene was the accused's mother, Joanne Quinn, followed by his younger brother, Thomas Quinn, and their neighbour, Sheree Broad. I will describe the layout of the accused's home, their evidence and that of another neighbour as well as the evidence of the paramedics and some of the police officers who attended the scene, as well as the evidence from medical and forensic experts. The evidence of Mrs Quinn and Thomas also addressed the accused's mental health and his relationship with Ms Vize. (A) Layout of the accused's home 1. The accused's home is located in Farmborough Heights in the Illawarra region south west of Wollongong. The videos and photographs tendered during the trial indicate that it is located in a leafy, residential street. The home consists of three bedrooms, a kitchen and dining room and two living areas. [27] At the front of the house is a verandah. The verandah spans approximately the right hand third of the front of the house as one faces the street. The verandah is elevated from the front yard. At the edge of the verandah are steps into the front yard. Immediately below the verandah is a concrete path which runs parallel to the front of the house. The steps to the path from the verandah are on the right side of the house as one faces to the street. The other end of the path leads to a carport which is located on the left side of the house as one faces the street. Another path leads from the concrete path to the front part of the driveway onto the street. On 22 July 2013, a small car covered in a white plastic sheet was located on the top of that path and a white sedan motor vehicle was parked in the driveway. The front yard is enclosed by trees. Behind the trees at the very front of the property is a small brick wall. Beyond that is a nature strip. Behind the trees on the right as one faces the street is a concrete path that leads down the side of the house to the back yard and behind that is a fence. 2. Located along the path that is parallel to the front of the house and immediately below the verandah is a pole for a television antenna. This pole is located about a metre past the left hand edge of the verandah as one faces the street. The evidence of the various witnesses suggests that Ms Vize's throat was cut just to the right of that antenna as one faces the road. At that point there was significant bloodstaining on the wall of the house and the surface of the path. [28] (B) Joanne Quinn 1. The accused's mother, Mrs Quinn, was the first witness at the scene immediately after Ms Vize's throat was cut. The Crown subpoenaed Mrs Quinn to give oral evidence but she raised an objection under s 18 of the Evidence Act 1995 (NSW) which I upheld. [29] Instead, her version of events was adduced in evidence via the Crown tendering the following: first, a short interview with police that was recorded on a mobile phone at 11:46am on 22 July 2013; [30] second, a six-page statement that was prepared at the Lake Illawarra Police Station and signed by Mrs Quinn the afternoon of 22 July 2013; [31] third, a DVD recording of a walk-through of her home on 24 July 2013 in which Mrs Quinn described the events of the morning of 22 July; [32] and fourth, the transcript of oral evidence given by Mrs Quinn at a committal hearing in October 2014. [33] Brief interview 1. Not surprisingly, in the brief interview recorded occurred on 22 July 2013, Mrs Quinn appeared subdued and in shock. Her hands and clothes were covered in blood. She told the police that she was inside the house, "heard shouting, and I went outside and I saw that [Cherie] was bleeding from the neck so I put my hand over her neck and I called out and the lady next door heard me and she rang the ambulance". [34] She said that her son and Ms Vize had been in a relationship for four years. She heard them both "screaming and yelling". [35] At one point she was asked: [36] "Q.15 Ok so what do you believe has happened here today? A. I know that Cherie has been seeing someone else at the time so I think that's what at the core of it." Statement 1. In her statement, Mrs Quinn said that on the morning on 22 July 2013, she drove her car to a mechanic's workshop and was picked up and driven home by her other son, Thomas, sometime between 8:30am and 9am. She stated that "Michael was at home asleep with his girlfriend Cherie Vize". [37] When she returned home they were still asleep. Mrs Quinn made breakfast and did some washing. She recalled Ms Vize woke up, went to the toilet and then to the front of the house for a cigarette. Mrs Quinn recalled that "a little while later" [38] Ms Vize came back inside and went into the accused's bedroom. Mrs Quinn stated that the accused came out of the bedroom, went into the toilet and also went back into the bedroom. Later they both come out of the bedroom and had some orange juice in the kitchen. 2. Mrs Quinn recalled speaking to Ms Vize who told her that "they were going to do some painting". [39] Mrs Quinn told Ms Vize that her paint equipment was in the back of the car that had been taken to the mechanic. Ms Vize said that she would help the accused do his painting. Ms Vize then rang her mother from their house to tell her that she intended to "paint with Michael all day". [40] Mrs Quinn stated that "[w]hile I was speaking with them, everything seemed fine." However, she added: [41] "I know that Cherie had been crying the night before. I didn't see her crying but I could hear her crying. About a week ago, Michael had found out that Cherie had been seeing someone and yesterday he found out that she had slept with whoever she had been seeing. Michael told me this last night while I was talking to him. While I was talking to Michael, Anthony was sitting at the computer but I'm not sure if he heard the conversation or not. Michael also told me that he had seen a message on Cherie's mobile phone in which she was talking about going to the chemist to get the morning after pill." (emphasis added) 1. Mrs Quinn said that she then saw Ms Vize walk outside the front of the house for a cigarette and that "a minute or so later I heard the front door bang". A short time later Mrs Quinn heard Ms Vize say "Michael don't do that". Mrs Quinn explained that she had heard Ms Vize say this to the accused before, but this statement "sounded more urgent than other times". Mrs Quinn heard Ms Vize repeat "Michael don't do that" and that "she wasn't shouting however she sounded like she was trying to reason or plead with Michael". [42] Mrs Quinn said she then left her bedroom and went to the front of the house. When she walked out of the front of the house she: [43] "… saw Michael and Cherie standing near our TV antennae pole. The pole is attached to the house outside Michael's bedroom window. This isn't the area where I would normally expect Cherie to smoke her cigarettes. I could see that Michael was standing in front of Cherie and it looked like he had his hands on her shoulders with one hand on each shoulder. They appeared to be struggling so I went towards them and tried to get in between them. Michael is quite strong and as I was attempting to get between them I saw him take a step back. Around this time I noticed blood and Michael with a knife. I turned around and looked at Cherie and I saw that blood was pouring out from the side of her neck. I can't remember what side the blood was coming from. When I saw the blood I instinctively reached out and put my hand on the wound to try and stop the flow of blood. As I did Cherie collapsed onto the ground on her back near [a mini minor motor vehicle parked in the front yard]." (emphasis added) 1. Mrs Quinn heard Ms Vize's breathing begin to change. She told Ms Vize to "stay with me". [44] Mrs Quinn recalled that a neighbour [Sheree Broad] came to her assistance. Mrs Quinn asked her to call an ambulance. Ms Broad rang triple-0 and they both spoke to the operator. The triple-0 call is addressed at [79] below. 2. Mrs Quinn recalled that while she was helping Ms Vize she saw the accused holding a "small paring knife with a brown handle". [45] She said he was either trying to cut his neck or stab himself in the chest. She told him "don't do that". [46] She said that Thomas came out and told the accused to stop. By this time, Ms Vize was lying on the ground. Mrs Quinn recalled watching the accused walk across the yard and out the front gate onto the front footpath on the grass. [47] 3. Soon afterwards, police and ambulance officers arrived to a scene of carnage. The ambulance officers assumed the care of Ms Vize. Mrs Quinn walked to the front footpath to see the accused on the ground and another neighbour holding a towel to his neck. The accused said to her "I can't feel my arms or legs" and "I can't believe I missed my heart." [48] 4. I note three further matters about Mrs Quinn's statement. First, Mrs Quinn stated that the accused told her that he had been caught cheating on Ms Vize on a number of occasions. Mrs Quinn also recounted an incident about a month prior to Ms Vize's death where the accused booked some accommodation for both of them to stay in Sydney. Mrs Quinn recalled that, although Ms Vize was supposed to have finished work in an art shop in Campbelltown between 4pm and 5pm, she did not arrive at the hotel the accused had booked until 10pm. Mrs Quinn recalled the accused telling her that "Cherie said that she was smoking and talking to someone and she couldn't get on the train" [49] but added "I believe that Michael had since found out that she had been talking to or seeing whoever she had been seeing behind his back". [50] I infer that in stating this that Mrs Quinn was recounting something the accused had told her. 5. Second, Mrs Quinn stated that the accused had OCD which manifested itself in a desire to be clean. She described the accused obsessively washing his hands and having three to four showers a day with some of these showers taking up to an hour. Mrs Quinn said that the accused could not use garbage bins or even walk near them for fear of being contaminated. Mrs Quinn stated that when his OCD was at his worst the accused could not turn a light switch off because if he did "his brain would be telling him to check it again so he would turn the switch on or off again" and "it would not be uncommon for him to spend five or ten minutes trying to turn the light off". [51] Mrs Quinn stated that when her son started his relationship with Ms Vize his symptoms "relaxed a bit" [52] however "if he was overtired I could sometimes see the OCD coming back". [53] Mrs Quinn stated that he took one "Lovan" tablet a day for his OCD. [54] 6. Third, Mrs Quinn stated that her son was not a violent person and that she "only [knew] of one occasion when he was accused of being violent", [55] which was when he walked out of a university lecture because he thought he touched a garbage bin. She understood he was being approached by the university lecturer and did something which "made her scared". [56] Mrs Quinn understood he made reference to "jump[ing] off a bridge". [57] Further details of this and another incident at the University of Wollongong emerged during the trial. They are addressed below. [58] Walk-through 1. Mrs Quinn participated in a "walk-through" at her home on 24 July 2013 in the presence of Detective Senior Constable Sammut and at least two other police officers. The walk-through was recorded on a DVD, which was tendered at the trial. [59] Mrs Quinn's husband, Anthony, was also present. He was not present during the terrible events on the morning of 22 July 2013. Mrs Quinn was calm and cooperative throughout the walk-through. She described coming to the front of the house and seeing Ms Vize standing near the antennae pole with her back to the house and the accused standing in front of Ms Vize. Mrs Quinn stated that "I tried getting in-between them because I didn't really know what was happening, I didn't see a knife or anything at that stage". [60] She described what she saw as follows: "I just saw that Michael had, had her and that she didn't wanna be held like that, I didn't see any blood at the time, I didn't see a knife but I knew she, she looked fearful and she didn't want him there. So I tried to get in-between them but he's just too strong and then by then I saw the blood and yeah. … [Detective Sammut] … OK so when you say, she looked fearful, what and what, gave you that impression? [Mrs Quinn] Just the way, just her mannerism - - -" [61] (emphasis added) 1. Mrs Quinn said that from the time she came to the front of the house neither Ms Vize or the accused said anything. Mrs Quinn said Ms Vize appeared to be "in shock" and did not appear to know she had been cut. [62] She said that Ms Vize did not have any weapon in her hand. [63] Mrs Quinn was then asked: [64] "[Q] Did Michael have any weapons in his hands? [Mrs Quinn] I don't know. I do remember seeing the knife on the ground though." 1. Mrs Quinn identified the knife located on the ground. [65] Mrs Quinn was shown a photograph of the knife recovered from the ambulance that took the accused to the hospital, [66] but denied seeing it on the morning of 22 July 2013. She confirmed that knife was taken from a knife block next to the kitchen sink. [67] 2. The balance of the account given by Mrs Quinn during the walk-through was consistent with her written statement. Mrs Quinn recalled that the accused asked a police officer to "shoot him to be done with it". [68] She said that prior to her going to the front of the house "the two of them were in the house like they always were, there was no arguments, there was no shouting". [69] Mrs Quinn said that there was "no indication that he was, that this was gunna happen". [70] She was asked about whether there was any "issues" between Ms Vize and the accused and stated: [71] "[The accused] found out that she'd been with someone else at the same time that she was with him but that wasn't the first occasion and he found that out probably a week or so before then. But they still kept talking, they still kept seeing each other. So --- yeah they were, as far as we know, working through it --- You know they, he still saw her nearly every day". 1. Mrs Quinn was asked about whether there were any previous occasions when the accused had self-harmed. She recounted an incident when he cut himself with a razor in the shower and another occasion when he scratched his face with a pen at university. [72] Mrs Quinn's committal evidence 1. The evidence given by Mrs Quinn at the committal hearing was generally consistent with what she said in her written statement and the walk-through, although three matters should be noted. 2. The first concerns whether Mrs Quinn observed the accused holding a knife when he was near Ms Vize. Mrs Quinn stated that when she walked to the front of the house she saw "Michael was holding Cherie by the neck, with both hands". [73] She said that Ms Vize and the accused were not saying anything, Mrs Quinn said to the accused "let go" which he did to reveal blood and "a wound underneath". [74] Mrs Quinn was asked "Did Michael have anything in his hands" and replied "no". [75] The Crown was given leave to cross-examine Mrs Quinn on the apparent inconsistency between that answer and the reference in her written statement to the accused holding a knife. [76] Mrs Quinn stated that she was "not happy" with that paragraph of her statement. [77] She said that she signed the statement under "duress" [78] which she clarified as meaning that she was experiencing stress and anxiety. [79] 3. Under cross-examination by the solicitor for the accused, Mrs Quinn was asked why she intervened between the accused and Ms Vize. She stated: [80] "Because Michael's hands were around Cherie's throat, I thought he was choking her, I don't know, but what he was doing was holding the wound. That's what I meant when I had to get in-between them, I thought – Q. You[r] initial reaction was wrong, wasn't it? A. It was. Q. Michael [was] actually helping her? A. That's right." 1. The second matter concerns Mrs Quinn's assessment of the accused's responsiveness. Mrs Quinn stated that she told the accused to call an ambulance but he did not because "he was just blank" [81] and that "[she] couldn't get any response out of him whatsoever." [82] 2. The third concerns Mrs Quinn's assessment of Ms Vize's fear when she saw her with the accused. In the transcript from the walk-through set out at [50] she described Ms Vize as "fearful". Under cross-examination by the Crown at the committal hearing, Mrs Quinn stated that she did not recall saying that but agreed that was her "recollection now". [83] However, under cross-examination by the accused's solicitor, Mrs Quinn agreed that she was "not able to say what that look on [Ms Vize's] face was". [84] (C) Thomas Quinn 1. Thomas Quinn took part in a short video-recorded interview at 11:54am on 22 July 2013, as well as a recorded walk-through on 24 July 2013. He also gave evidence at the trial. Interview and walk-through 1. Only part of the short recorded interview with Thomas on 22 July 2013 was tendered. [85] In that interview he recalled that he heard "what I thought [was] children shouting … cause it was a high pitched kind of thing" [86] and said he then heard "dogs barking carrying on". [87] He said he then paused the TV and started the TV again but then "they started up again, were shouting". [88] 2. In his walk-through on 24 July 2013, Thomas described the noise he heard as "inaudible shouting". [89] He said he then heard his mother "screaming" [90] and he "sprinted out" [91] to the front area. He saw his mother holding Ms Vize against the brick wall near the antenna pole. He recalled blood was "pouring out of the side of [her] neck" and "her eyes were rolled" and she was "gasping for air". [92] Thomas saw his neighbour standing behind his mother. He said the accused was in the front yard of the house to the right as one faces the street. [93] Thomas said his mother said that she "needed towels". He "sprinted" through the house, collected tea towels and returned. [94] He said he threw the towels to his mother. By this time the neighbour had left. He noticed the accused in the front yard who "started stabbing himself in the chest repeatedly". [95] Thomas ran down from the verandah to the accused and said to him "[w]hy are you doing this, stop". [96] 3. Thomas recalled the paramedics arriving. He said he ran back inside and telephoned his father. [97] He returned to the front yard to find that his brother was near the car in the driveway. [98] Thomas went to him and found that he was still holding the knife. Thomas stated "I think he might have been still been trying to finish off his throat." [99] He said the accused collapsed and there was a knife found in his neck. [100] He recalled that at one point the neighbour was assisting him and the accused started saying "stop helping me. Just let me go. Stuff like that". [101] 4. Thomas said that at one point he said to the accused "why have you done this". [102] He said that the accused "just didn't respond" and "it was as if he couldn't, I am not sure he was ignoring or me couldn't hear the question but he was focused on whatever he was doing to himself" [103] and "I shouted, like I've never shouted like that in my life the way I shouted at him to stop hurting himself but it was as if he couldn't hear me". [104] 5. Thomas was asked as follows: [105] [Detective Sammut] Were you aware of any problems that Michael and Cherie were having in their relationship? [Thomas] Through what I've been told by my mother at, up to this point, Michael had found out that Cherie was cheating on him and I'd spoken to my brother, like he was pretty devastated about it. [Detective Sammut] What did you say? [Thomas] Well I mean from his, from my perspective, when I was talking about it like I thought he'd, he'd, had his heart broken a bit. [Detective Sammut] He was heartbroken? [Thomas] Yeah" (emphasis added) 1. Thomas described the accused as secretive about the company he kept and his relationships. He said that he had "a general understanding that Cherie had slept with another man" and that "Cherie had given him some sort of timeline to, to get his act together, whatever that meant" but his understanding was "that she was still seeing this other gentleman." [106] Thomas was then asked: [107] "[Detective Sammut] Do you know at what point in time he learned of her being with another man. Was it a recent thing or has it been a long, long? [Thomas] Well I know she cheated on him ages ago. I don't know exactly how long ago, like, a fair, a fair while ago now like they, and they'd gone passed it but in terms of this particular one, several weeks ago they were, staying up in Sydney somewhere and she was about five hours late. That might have been the first indication that she was cheating on him. I, I wouldn't know but that might of 'cause he was pretty distraught that night and he was just worried about her and he didn't know where she was and freaking out and then, since then, I don't know how he found out whether he asked her directly or he's seen messages or something on her phone he's become aware that she's cheating on him and he's confronted her about it and she, she didn't deny it I don't think. But again, all this, I really haven't got from him, I've mostly gotten from my mother." Oral evidence 1. The description of the events of the morning of 22 July 2013 given by Thomas in his oral evidence was generally consistent with what he stated during the walk-through on 24 July 2013. It is only necessary to note five matters about his oral evidence. First, Thomas recounted the course of events which involved him hearing noises, running to the front of the house when he heard his mother scream, seeing his mother with Ms Vize, returning to the house to get towels and returning again to the front yard to see the accused stabbing himself. The first time that Thomas stated that he noticed the accused was in the front yard. He did not state that he passed the accused on the verandah or in the house. 2. Second, Thomas stated that when he noticed the accused in the front yard he had a knife in his right hand and was slowly walking backwards towards the road. [108] Thomas said that there was blood on the accused's hands and he saw him stab himself in the chest at least twice. [109] He said that after he stabbed himself the accused "continued to walk backwards, perhaps a couple of steps and then took the knife up to his neck and began to drag it across his throat". [110] Thomas said he screamed out to him to stop. He ran over to the accused who by now had collapsed on the driveway in the area where his car was parked in the front. [111] He said to the accused "why have you done this". [112] He said that he initially got no response however at some point the accused said words to the effect of "leave me alone, I'm ok" and "[d]on't help me, I can't feel anything". [113] 3. In cross-examination, Thomas said that when he screamed at the accused to stop it was the loudest scream he could make ("I had nothing else I could have put into that scream"). [114] Thomas said that there was no visible response from the accused and the expression on the accused's face was "blank". [115] Thomas said that "he couldn't get a read on what [the accused] was thinking or what potentially could be running through his mind" and that he "couldn't see any sign of distress" in the accused. [116] 4. Third, Thomas described an occasion some years before 22 July 2013 when he witnessed the accused cut himself with a razor blade in the bathroom. [117] He recalled the accused turned to him and "seemed to show a level of relief … with the damage to his body". [118] Thomas also described the accused as a "cutter" in that he appeared to cut around the knuckles of his hand with a maths compass. [119] 5. Fourth, Thomas described the accused's compulsive behaviour. Thomas recalled that from when the accused was approximately 15 years of age, he became obsessive about cleanliness. The accused insisted that Thomas wash his hands before using his game console. Thomas observed that the accused would shower at least two times a day and sometimes up to four. [120] Thomas also noticed injuries to the accused's skin after showering from excessive scrubbing. [121] Thomas recalled that the accused became obsessive about any contact with rubbish bins, such that if anyone touched a bin the accused insisted they wash their hands before they went near him. [122] Thomas stated that, even if the accused walked past a rubbish bin or put a wrapper in a bin without touching it, he would wash his hands. [123] 6. Thomas also said that the accused had been compulsive about turning on and off light switches as well as closing and locking doors. He said the accused insisted upon locking a door and sometimes moved back and forth between the door to ensure that it was locked between 10 and 20 times. [124] Thomas said that he sometimes heard the accused in his bedroom at night, getting out of his bed on numerous occasions to ensure the door was shut in a particular way. He commented that this process could take up to 12 to 15 attempts, depending on how stressful the accused's day had been. [125] 7. Thomas recalled that at some point the accused started taking anti-anxiety medication, which "appeared to be working quite well" although there would be periods of weeks when the symptoms might return with the same degree of intensity as before but then settle down. [126] 8. Fifth, Thomas stated that he and the accused had a close relationship with their maternal grandfather, spending many holidays and outings with him. [127] On or about 12 July 2013, their grandfather was taken to a hospital in Orange and transferred to a nursing home a few days later. He was given a poor prognosis. [128] (D) Sheree Broad and the triple-0 call 1. Ms Broad lived next door to the accused and the Quinn family. Ms Broad gave evidence by video-link. [129] She stated that at about 10:35am on the morning of 22 July 2013 she heard a female voice screaming. Ms Broad said that she went to the front of her house and looked over the fence, and saw "a young girl who was bleeding profusely from the neck and I saw my neighbour, Joanne, with her hands on her neck trying to stop the bleeding". [130] Ms Broad recalled Ms Vize leaning with "her right shoulder up against [Mrs Quinn's] house". [131] Ms Broad dialled triple-0. According to Ms Broad's phone the triple-0 call was made at 10:38am. [132] This is consistent with the annotation on the recording of that call which records it being made at 10:39am. [133] 2. The transcript of triple-0 call records Ms Broad telling the operator that her neighbour was "bleeding profusely from the neck". At the request of the operator, Ms Broad went to the front yard of Mrs Quinn's home and put the operator on loud-speaker. As the sight of blood made her sick, Ms Broad held the phone out with one hand and covered her eyes with the other. [134] The transcript of the triple-0 call records Mrs Quinn telling the operator that Ms Vize had "been stabbed in the neck with a knife". [135] In the recording of the triple-0 call, noises can be heard that appear to include Ms Vize in distress and experiencing difficulty breathing. 3. Ms Broad said that she noticed a knife on the concrete which was covered in blood. Ms Broad then said she heard a male voice coming from the verandah just above where Mrs Quinn and Ms Vize were standing. She recalled the male voice asked what happened. She looked up and saw two males standing on the verandah. Ms Broad said the eldest son of Mrs Quinn, ie the accused, was "standing above Joanne [Quinn]" and the "younger one [ie Thomas] was partially inside the door". [136] 4. Ms Broad said that Mrs Quinn said "Michael stabbed her" [137] and the other son "yell[ed] out … 'Michael, what have you done? What have you done?'". [138] Ms Broad said that she recalled the older son walking down from the verandah towards them and that as he was walking down the stairs she saw "a knife sticking out of his stomach". [139] She did not notice any other "injuries or blood on him". [140] Ms Broad said that this made her feel unsafe and she returned to her house whilst speaking to the triple-0 operator. [141] 5. The transcript of that part of the triple-0 call, annotated by my listening to the recording of the call, reads as follows: "[Operator] Where, where is the offender? [Mrs Quinn] Sorry? [Operator] Where is the offender? [Mrs Quinn] Sorry, I can't hear. [Ms Broad] Where is the offender? [Mrs Quinn] Here. [Operator] So the offender is in the same house? [Indistinct noise in background] [142] [Mrs Quinn] Yes, he is. [Operator] O.K. Is there more than one wound? [Mrs Quinn] No, just the one. [Operator] Just the one. O.K. You stay with me please Joanne. [Mrs Quinn] She's [fallen] [143] over. [Operator] I'm going to give you some medical advice in just a moment. [At this point indistinct noise can be heard in the background including Ms Vize in distress] [144] [Operator] O.K. This is what I'd like you to do. [indistinct noise] [145] [Operator] Joanne this is what you need to do. You need to control that bleeding. I want you to get a clean, dry, I want you to clean, dry cloth or towel and place it right on the wound. I want you to press down firmly, do not lift it up to have a look. [Mrs Quinn] Michael, help [me] [146] please [Indistinct noise] [Mrs Quinn] Michael [scream] [147] [Ms Broad] Just, can you send please send another ambulance? He has just stabbed himself as well. [Operator] OK. So the - - - [Ms Broad] I'm sorry. [Operator] OK. So the offender on scene, offender on scene has - - - [Ms Broad] Yeah. [Operator] - - - also - - - [Ms Broad] … [Operator] - - - stabbed himself [Ms Broad] I'm sorry, I've had to run away … [Operator] That's, that's all right. Thank you. You've done a really good job for me. Do you know where he stabbed himself. [Ms Broad] In the stomach." 1. The only participants in the remainder of the call were Ms Broad and the operator. By this time, Ms Broad had returned to her house. During this part of the call Ms Broad told the operator that "the guy next door stabbed his, I dunno, girlfriend or something …" and "stabbed himself". [148] According to the annotations on the disc that was tendered, the call concluded at 10:44am. 2. The recording of the triple-0 call does not include the statements that Ms Broad attributed to either Mrs Quinn or Thomas, as noted in [78]. However, that is not much of an indication that those statements were not made given that the phone was on speaker, and there is clearly noise in the background that is not recorded. Further, at times Ms Broad is talking directly to the operator and her voice may have obscured noise in the background. From what Ms Broad told the operator, it is clear that she believed the accused stabbed Ms Vize. She could have only obtained that understanding from what she saw and heard at her neighbour's place. (E) Gerhard Warth 1. A statement was read from Mr Gerhard Warth who lived two houses from the accused's home in July 2013. [149] Mr Warth recalled returning to his home at around 10.20am after dropping his grandson at preschool. He said that he and his wife were having coffee on their front verandah. He recalls that "after about 15 to 20 minutes" he heard a loud female voice shouting "Michael no, no" which was repeated "a minute or so later". [150] Mr Warth described the tone of the voice as "not playful, it was loud but not screaming or anything". [151] He says that after a further "minute or so" heard the same voice say "[s]top Michael, stop it, stop it, stop it". He queried with his wife where the voice was coming from. Mr Warth said the female voice went quiet for a short period but then he heard her say "No Michael no, stop it". [152] 2. Mr Warth and his wife deduced that the female voice was coming from the accused's home. As he walked towards that house he saw Thomas in the front yard and came across the accused lying on the nature strip. He asked Thomas to "get some rags to stop the bleeding" and saw him run back into the house. [153] He saw Ms Vize lying on the ground in the front yard and briefly spoke to Mrs Quinn. He knelt down beside the accused and saw a knife sticking out of his neck. He spoke to the accused who told him that he could not move his legs or "feel anything from the neck down". [154] 3. Mr Warth recalled the police and ambulance personnel arriving around this time and attending to both Ms Vize and the accused. One of the paramedics asked Mrs Quinn "What happened here, what happened". Mr Warth recalled that she replied: "He found out she was cheating on him with one or two men". [155] (F) Police, paramedic and medical response 1. As noted, the triple-0 call commenced at around 10.38 or 10.39am and concluded around 10:44am. At around that time, Constable Zwickl and Senior Constable Riley arrived as did Sergeant Brown and Senior Constable Wells. Over the next 10 or 15 minutes a number of other police officers arrived. 2. An ambulance arrived at around 10:54am with two intensive care paramedics, Stephen Dawson and Michael Rogers. Mr Dawson attended upon Ms Vize and Mr Rogers attended upon the accused who was on the nature strip. 3. Mr Dawson observed a deep laceration to the left side of Ms Vize's neck. He concluded that the artery was severed due to the level of blood loss. Ms Vize suffered cardiac arrest at the scene. Arrangements were made to transfer Ms Vize to hospital. Prior to her departure Mr Dawson observed Ms Vize to be "evidently exanguinated" [156] (ie drained of blood). 4. Mr Rogers observed the accused lying on the nature strip with the "handle of a knife protruding from the right side of his neck". [157] He observed two stab wounds to the accused's chest and stomach area. Mr Rogers tried to stabilise the knife in its position. He moved the accused into an ambulance for transfer to Wollongong hospital. During the journey to the hospital the knife that was protruding from the accused's neck fell onto the floor of the ambulance. This knife was seized by police. [158] It had a black handle, was 20cm in length and had a steel blade. [159] This knife matched other knives in a knife block found in the kitchen of the accused's home. [160] 5. In her statement, Constable Zwickl stated that at one point she was standing near the accused when he was laying on the nature strip. She recalled the accused said to her "[t]ake your gun out and shoot me, I'll forgive you", to which she replied "[n]o". [161] Constable Crosland recalled the accused stating "[y]ou should just shoot me", "[h]ow hard is it to hit your own heart", "I can't feel anything" and "[i]s she alright". [162] 6. Constable Zwickl also recalled speaking to Mrs Quinn and asking her "[w]hat has happened here today" and Mrs Quinn responding "[h]e just found out she was cheating on him". [163] 7. A Registrar at Wollongong Hospital, Dr Stewart, stated that Ms Vize was "close to … death" on her admission due to extensive blood loss. [164] Ms Vize was immediately operated upon by "open[ing] the wound further and assess[ing] the degree of further injury and then [trying to] stop the blood loss that was occurring from the major vascular structures within the neck". [165] Dr Stewart stated that the decision was made "to ligate… the severely lacerated internal and external carotid arteries and the internal jugular vein" due to the severity of blood loss. [166] After the operation, Ms Vize was transferred to intensive care to receive infusions of blood but she succumbed to her injuries. [167] Dr Stewart's understanding was that she passed away later that evening. [168] 8. It is not necessary to further describe the treatment of Ms Vize. There is no doubt she died as a consequence of blood loss arising from a laceration to the carotid artery and jugular vein. Her other injuries were documented in the post-mortem. [169] The effect of the operation on the fatal wound was to make any post-mortem assessment of its size and depth prior to the operation difficult. [170] The hospital records state that on her admission the wound to her neck was observed to be "1 x 3cm" in size. [171] (G) Crime scene observations 1. The officer in charge, Detective Senior Constable Sammut, arrived at the accused's home at 11.25am on 22 July 2013. Detective Sammut identified a number of crime scene photographs, [172] which I infer were taken in the immediate aftermath of the transfer of Ms Vize and the accused to hospital. Four matters should be noted about those photographs. 2. First, there was a significant amount of blood staining in the area where Mrs Quinn first saw the accused and Ms Vize (and where Mrs Quinn assisted Ms Vize). [173] Just near that location Ms Vize's handbag was found. It was covered in blood. [174] There were blood stains on the adjacent wall. [175] Her blood stained clothes were located on the grass just near where she laid down and was attended to by Mrs Quinn and then by the paramedics. [176] There was a cigarette lighter on the ground and a pot plant in the area had fallen to the ground and smashed. [177] 3. Second, on the grass verge just near the cement at the front of the house, a small brown handled blood stained knife was found. [178] The knife was approximately 20cm in length. The blade was bent. [179] DNA testing of the blood on the blade was a match for Ms Vize. [180] A hair was located on the blade but not tested for DNA. [181] A swab of the handle of the knife contained the accused's DNA. [182] 4. Third, Detective Sammut stated that there were blood droplets on the steps leading to the verandah but not beyond. [183] The blood droplets contained the accused's DNA. [184] 5. Fourth, both Ms Vize and the accused's mobile phones were seized and analysed. [185] 6. Further, in his evidence the accused stated that after Ms Vize's throat was cut he walked inside the house and washed blood off his hands in the sink. The Crown called evidence in reply concerning the forensic examination of the inside of the house. [186] The examination revealed that there was "no blood on the floor leading to the kitchen or on the kitchen floor". The kitchen had a stainless steel twin-bowl sink and a single mixer tap in the centre. The right hand bowl was partially filled with soapy water. The left hand bowl was empty. The tap was pointed into the left hand sink. There was no blood located in the sink, on the mixer tap or in the areas around the sink. [187] (H) Post-mortem analysis 1. The post-mortem was undertaken by Dr Kendall Bailey who gave oral evidence. The Crown also led evidence from a very experienced forensic pathologist, Dr Johan Duflou, as to whether some of Ms Vize's injuries could have been deliberately inflicted, self-inflicted or the result of an accidental stabbing. [188] Dr Bailey 1. The results of Dr Bailey's autopsy of Ms Vize were as follows. Dr Bailey observed the fatal wound to the carotid artery and jugular vein as well as four "superficial incised [ie slash] wounds" on the exterior of Ms Vize's neck. [189] She concluded that the cause of death was massive blood loss. [190] 2. With the fatal wound, Dr Bailey stated that she observed "a deep incised injury on the left side of the neck with underlying incised injury to the internal carotid artery immediately above the bifurcation of the common carotid artery". [191] Dr Bailey explained that the "internal carotid artery is one of the major vessels of the neck that goes from the heart to the neck and up to supply the brain" [192] and the bifurcation of the common carotid artery is where the "carotid artery ... splits off and becomes the internal and the external carotid artery". [193] Dr Bailey stated that Ms Vize's "internal carotid artery had an incised injury" and there was "also an injury to the internal jugular vein which lies right next to it, which is the vein that drains blood from the brain". [194] Dr Bailey explained that each of those veins is usually "half a centimetre or a centimetre wide". [195] Dr Bailey estimated that those vessels "could be about 5 centimetres below the [exterior of the] skin" given the amount of subcutaneous tissue on Ms Vize's neck. [196] Dr Bailey estimated that the fatal wound was 5 to 10 centimetres deep. [197] She observed that the carotid artery was partially severed and the jugular vein was "totally transected". [198] 3. Dr Bailey observed the effect of the operation on Ms Vize's neck wound at Wollongong Hospital. She was aware that there was a "T extension" of the wound during surgery but could not determine if they "extended the original wound and made that longer or if they just added a T". [199] The wound she observed was in a "V" shape with one limb 13cm in length and the other 8.5cm. [200] Dr Bailey also identified a large area of bruising around the neck area. [201] 4. Dr Bailey observed four superficial incised wounds on the front of Ms Vize's neck. They were marked as wounds A2 to A5 on Exhibit II. [202] Two of them were roughly horizontal. If one faced Ms Vize, the left end of wound A2 started approximately 40mm from the "midline of the neck" [203] and was 80mm in length. It was located 4cm from the fatal wound. [204] Wound A3 was located approximately 50mm below wound A2. It was "an essentially horizontally orientated linear incised wound … 75mm in length" which extended slightly over the midline. [205] Wound A4 was a 25mm wound that intersected with wound A3. Dr Bailey described it as a "very superficial, almost scratch-like wound that sort of almost joins up" with wound A3. [206] Wound A5 was located approximately 20mm below wound A2 and was approximately 9mm in length. [207] Dr Bailey described all of the incised wounds as "very superficial". [208] Only wound A2 extended into the subcutaneous tissue. [209] Dr Bailey stated that each wound was "essentially orientated in the same way [resulting from] either a blade moving across the skin or the blade being stationary and the skin moving ... or both". [210] 5. Dr Bailey stated that she could not say whether the person who inflicted the wounds stood behind or in front of Ms Vize or was left or right handed. [211] 6. Dr Bailey's autopsy identified faint bruising over Ms Vize's right elbow as well as the front and back of the mid foreman on her right arm, [212] along with bruising on the back of the left forearm and both of Ms Vize's hips. [213] 7. Dr Bailey located seven wounds on Ms Vize's right hand. First, she identified a 50mm long gaping wound through the webbing between the right thumb and index finger, "extending partially into the thenar muscle". [214] Dr Bailey noted photograph 51 of Exhibit A demonstrates the "gaping nature [of the wound] and the [deep] extension of the wound". [215] 8. Second, Dr Bailey identified an "irregular jagged incised wound" on the end of the right thumb consisting of "three limbs, 20, 30 and 50mm in length". [216] 9. Third, Dr Bailey located a 12mm, long horizontal incised wound on the tip of the right index finger. [217] 10. Fourth, on the tip of the middle finger Dr Bailey located a 10mm long, horizontal incised wound. [218] 11. Fifth, between the second and third joints on the middle finger, Dr Bailey located a 15mm long, horizontal incised wound. [219] 12. Sixth, at the first joint on the middle finger Dr Bailey located a 8mm long, horizontal incised wound surrounded by faint bruising. [220] 13. Seventh, on the tip of the ring finger Dr Bailey located a "slightly obliquely orientated 15mm long, linear incised wound". [221] Dr Bailey also located a small area of bruising on the outside of the little finger on Ms Vize's right hand. [222] 14. Dr Bailey agreed with the characterisation of these wounds to Ms Vize's right hand as "classic defensive injuries" [223] which are "injuries to the palm of the hands or the outside of the forearm where a person will instinctively put their hands and arms up to defend themselves". [224] 15. In cross-examination, Dr Bailey agreed that she could not determine whether any of the bruising to Ms Vize's body was caused before, during or after the altercation that resulted in the sharp force injuries. [225] Dr Duflou 1. Dr Duflou has worked as a specialist forensic pathologist in Australia for almost 25 years, having first qualified in South Africa. [226] He estimated that the number of autopsies he had performed in the Australia was in the "many, many thousands". [227] He stated that he had reviewed deaths caused by knife stabbing in "[m]uch larger numbers" in South Africa prior to arriving in Australia and then since that time he has performed a "large number of autopsies as a result of infliction by another person, accidental knife injuries and self-inflicted suicidal knife injuries". [228] Dr Duflou was provided with Dr Bailey's autopsy report, photographs of the crime scene and the deceased, a psychiatrist's report from Dr Richard Furst concerning the accused and various prosecution statements including those concerning the medical treatment administered to Ms Vize. [229] 2. Dr Duflou noted that Dr Bailey measured the fatal wound as involving one limb that was 13cm long and another limb as 8cm long. Dr Duflou was referred to Dr Stewart's evidence that on admission to hospital an observation was made of a single stab wound approximately 1cm x 3cm in size. [230] He was asked whether a comparison of those two measurements allowed for an estimate of the effect of medical intervention on the size of the fatal wound. [231] Dr Duflou stated that it was his experience that observations of wound size made at a hospital when the focus is on saving the patient's life were "a very rough estimate at best". [232] Dr Duflou agreed that Dr Bailey's assessment of the depth of the wound as between 5 and 10 cm was not "unreasonable". [233] In cross-examination, he explained that the lack of precision arose because it was not clear whether the surgical intervention extended the wound deeper, and it was not known what the position of Ms Vize's head was, or the extent of the compression of the skin and other tissues, at the time the wound was inflicted. [234] 3. Dr Duflou also agreed with Dr Bailey's description of the wounds on Ms Vize's right hand as defensive and stated that they are "commonly found on the palms of the hands, due to attempts to grasp or ward off [a] knife". [235] Dr Duflou stated that, while it was possible for a single grasp of a knife to cause multiple incisions, the distribution of incisions on Ms Vize's right hand meant that "a single grab of a knife would not be expected to cause such multiple injuries". [236] Dr Duflou considered that circumstance to be inconsistent with the accused's version of events as recorded by Dr Furst, which only referred to a single grab of the blade by Ms Vize. [237] 4. In cross-examination, Dr Duflou accepted that multiple incised wounds to a hand could occur from the grab and release of a knife and then it being grabbed again. [238] In Ms Vize's case, Dr Duflou stated that it was possible that there were four separate interactions between the knife and the right hand, "as a minimum". [239] He was asked if it was possible that the injury to the tip of Ms Vize's thumb was caused by Ms Vize grabbing at the knife as the accused was pulling the knife back towards himself. Dr Duflou said that it was "a bit unusual but it could potentially be" [240] although a "swipe or slash across the thumb … [was] … more likely". [241] 5. Dr Duflou considered that the distribution of wounds around Ms Vize's neck were inconsistent with self-harm. His experience was that, if there was more than one wound to the neck from self-harm, the wounds were usually "parallel to each other" as the person hesitates and then applies more and more force to their own neck. [242] He added that in cases of suicide it was "relatively unusual" to change from "an incised wound to a stab wound. [243] 6. Dr Duflou considered that the knife located on the ground on the front yard of the accused's home "could reasonably" have caused the fatal wound to Ms Vize, [244] and that considered alone that wound "could have been sustained by homicidal, accidental or suicidal means". [245] However, Dr Duflou considered that when the fatal wound was taken with the four incised wounds to the neck there "have been five applications of sharp force to the neck" being four "slashing type motions" and "one … stab". [246] Dr Duflou considered that the extent of wounding to Ms Vize's neck did not "appear to correspond with the description provided by the accused to Dr Furst". [247] In particular, Dr Duflou stated that those wounds were not consistent with a "single pull back and by accident, a single stab in the neck, it does not explain the other injuries". [248] Dr Duflou considered that the incision wounds to the neck would be quite unusual in a struggle because: [249] "…you … have multiple applications of force in a sideways motion. Each one is not too dissimilar in depth. I would find that quite unusual. To expect there to be that, then it would be repeatedly applied in the same area. It just sounds strange to me and not something that I've seen of that nature." 1. Dr Duflou agreed that Ms Vize's wounds were consistent with someone initially trying to cut Ms Vize's throat and then determining to stab them in the neck ("yes it could absolutely be"). [250] (I) Assessment 1. At this point it is appropriate to record my assessment of the above witnesses and to make certain primary findings of fact. Although the accused's evidence was potentially relevant to these findings, for the reasons set out below I reject his evidence except where it is confirmed or corroborated by independent evidence. 2. I accept all the evidence of the police, paramedics and medical witnesses about what they saw, heard and the medical treatment administered to Ms Vize at the scene and the hospital. I accept Dr Bailey's evidence as to what she observed during the autopsy. In the case of Dr Duflou, I accept that he accurately relayed his observations and provided his honest opinion on the matters he addressed. I return to address the weight to be attached to Dr Duflou's opinions (and to a lesser extent, those of Dr Bailey) at [210ff] below. 3. It is appropriate at this point to record my findings about what knives were used and when they were obtained. Given the DNA results noted in [95], I am satisfied that the knife located in the front yard was the knife that cut Ms Vize's throat and right hand. I am also satisfied that the accused used the knife that was taken from the knife block and later found in the ambulance to stab himself. I am satisfied that Ms Vize received the fatal wound at the location where Mrs Quinn states she first saw the accused and Ms Vize, namely, near the antenna pole immediately in front of the verandah. [251] This was consistent with the blood stains observed at the scene. [252] 4. I also accept that the fatal wound inflicted on Ms Vize was between 5 and 10cm deep, as noted by Dr Bailey. [253] It is true that the wound was operated upon, which certainly expanded it at surface level. However, Dr Stewart did not state that the wound tract was deepened and the loss of blood at the scene suggests that a significant wound to the carotid artery and jugular vein was inflicted. As for the length and width of the wound, I accept the hospital measurement of 1cm x 3cm as a rough guide of the size of the wound on admission, even allowing for Dr Duflou's misgivings. That measurement approximates to the size of the knife that I have found inflicted the wound. I inspected the knife. At the point which is 5cm below the tip, the width of the blade is 2cm. 5. I am satisfied that Thomas and Ms Broad were truthful in giving evidence and, in the case of Thomas, he was truthful when he spoke to police. I also accept that Mr Warth was truthful when he provided a statement to the police. Unless otherwise indicated by the discussion that follows, I accept their evidence as evidence of what they saw and observed. In the case of Thomas that means that, contrary to the evidence of the accused which for the reasons set out below I reject, I accept that part of his evidence in which he stated that the accused told him that he was "devastated" that "Cherie was cheating on him" [254] and his description the accused's history of self-harm and compulsive behaviour. 6. In the case of Mrs Quinn, I have traversed the course of her evidence at [39ff]. I give little weight to her evidence at the committal hearing and far more weight to the three accounts she gave within two days of the incident occurring. I am satisfied that in providing those accounts she was endeavouring to be truthful and was doing her best to recount her recollection of the events that transpired as well as the accused's personal history, including his relationship with Ms Vize. In relation to the committal hearing, the events at that time would not have been as fresh in her mind compared to the immediate aftermath of the incident on 22 July 2013. The answer Mrs Quinn gave to the effect that when she saw the accused and Ms Vize in the front yard she believed the accused was helping her [255] is highly suggestive of a parent seeking to do the best they can to help their child. 7. Nevertheless, as between her written statement completed on 22 July 2013 and the recording of the walk-through on 24 July 2013, there is a discrepancy as to whether the accused had a knife in his hand when Mrs Quinn first saw the accused with Ms Vize in the front yard. [256] With those two sources of evidence, I am in a better position to consider the walk-through given that it was recorded. To the extent that there is a discrepancy I prefer what was stated by Mrs Quinn during the walk-through. At the time she gave her written statement, Mrs Quinn would have been under great stress, no matter how careful the police were in their dealings with her. There was an obvious potential for her to slip in describing the precise details of the interaction between the accused and Ms Vize. It follows that I accept that Mrs Quinn did not know whether or not the accused had a knife in his hand when she saw him struggling with Ms Vize. However, I also accept Mrs Quinn's assessment that at that time she saw them together in the yard, Ms Vize "look[ed] fearful and she didn't want him there", [257] a matter I will return to. 8. I accept the balance of the material contained stated in Mrs Quinn's statement and walk-through. In particular, and notwithstanding the accused's evidence, I accept what she stated concerning the accused and Ms Vize's relationship, [258] in particular, that on the night before the stabbing the accused told her that he was upset about Ms Vize sleeping with Mr Andrew Meyers (or at least seeing him) and had seen a message on Ms Vize's phone about needing the morning after pill. [259] As noted below, [260] such a message was indeed sent by Ms Vize to Mr Meyers. There is no apparent reason why Mrs Quinn would be aware of that detail unless the accused mentioned it to her. I also accept Mrs Quinn's evidence about the accused's compulsive behaviours. 9. Did the accused take two knives to the front yard before Ms Vize's throat was cut? As noted the accused stated that, after his mother came to the front yard, he went to the kitchen and washed blood off his hands. There is no support for this assertion in the forensic evidence, which did not reveal any blood inside the house, including in the sink area. Given the approach I take to the accused's evidence I do not accept this. However, has the Crown proven he did not return to the house to obtain another knife? The evidence was not capable of demonstrating that, if the accused had returned to the house to collect a further knife, he would necessarily have left some blood on a surface or door handle. Further, a consideration of the evidence of Mrs Quinn, Thomas and Ms Broad leaves me uncertain as to whether or not the accused re-entered the house to obtain a knife to stab himself. Thomas only noticed the accused in the front yard of the premises after he returned from obtaining the towels for his mother. Ms Broad located the accused on the verandah at the time he first stabbed himself. According to her Thomas was in the doorway to the verandah at that time. This sits uneasily with Thomas' recollection, but allows for the possibility that the accused had returned to the kitchen to obtain another knife. Ms Broad's version in this respect derives support from the finding of the accused's blood on the steps leading to the verandah. [261] Thomas did not locate the accused in that vicinity at any point after he stabbed himself. In the end, I am not satisfied one way or another about whether the accused initially took two knives out to the yard or one. 10. Otherwise, I accept Ms Broad's evidence that Mrs Quinn said at the scene that the accused stabbed the deceased and that Thomas yelled out to him "Michael what have you done, what have you done?" [262] Clearly, both Mrs Quinn and Thomas believe that happened. Ms Broad told the triple-0 operator that the accused stabbed Ms Vize and it is likely she came to that conclusion after hearing Mrs Quinn state that. (3) Crown Case: The Breakup of the Relationship 1. The Crown led a body of lay evidence concerning the course of the relationship between the accused and Ms Vize that led to her being at the accused's home on the morning of 22 July 2013. I have already referred to some of it and will summarise the rest. Before I do so it is necessary to state the relevance of that evidence. 2. At no point in its case did the Crown indicate that it was relying on tendency evidence (see Evidence Act, s 97). In particular, the Crown did not allege as part of its case that the accused had a tendency to be controlling in his relationships and become violent if he was rejected. No such reasoning has played any part in my acceptance of the Crown case. However, it was the Crown's case that the accused's anger or despair about the breakup, or prospect of a breakup, of his relationship with Ms Vize and the fact that she was, or was intending to, sleep with someone else led to him deliberately stabbing her. To that end, the Crown led evidence concerning the history of their relationship which suggested that the accused was emotionally dependent on Ms Vize, as well as evidence concerning the breakup of the relationship and his response that suggests he was deeply distressed by the breakup. There was no objection to that evidence being led. Further, as the trial unfolded, that evidence became significant to an assessment of the accused's credit because he testified to the existence of a completely different dynamic between himself and Mr Vize. The Crown submitted that the evidence to the contrary not only destroyed his reliability as a witness, but it demonstrated that he was a liar. 3. Further, the evidence that was led by the Crown concerning the accused's relationship with Ms Vize and his response to the breakup was also embraced by Ms Manuell SC as part of her client's alternative case under s 23A of the Crimes Act. In particular, Ms Manuell SC relied on that evidence as supporting the diagnosis of the accused as experiencing BPD. One of the manifestations of that disorder is an excessive fear of abandonment, usually evident at the time of a relationship breakdown. (A) Evansueda Vize 1. Ms Vize's mother, Evansueda Vize, gave oral evidence on the fourth day of the trial. [263] Mrs Vize confirmed her daughter was left-handed. [264] Mrs Vize described her daughter as a warm and friendly person, who was talented at art and passionate about pursuing it as a career. Mrs Vize recalled travelling with her daughter in 2011 on a train when her daughter showed her a picture of the accused. A few months later she introduced him to Mrs Vize. [265] Mrs Vize stated that the accused often brought her daughter home and stayed late at the house. She said the accused constantly rang her daughter's mobile or their home phone to find out where she was and who she was with. [266] 2. Mrs Vize recalled that sometime after the accused finished university she asked him why he was always "running around with Cherie" but not finding a job. She recalled him responding "that he loved Cherie and he wanted to be with her". [267] Mrs Vize stated that the accused often drove her daughter to her work at various art stores across Sydney. 3. Mrs Vize recalled that about three months before her daughter died she was crying and upset. Mrs Vize said that her daughter told her that she was "suffocated with my relationship with Michael" and "[a]ll we do is argue. [268] Mrs Vize told her daughter that if their relationship was like that "there's no point of … why don't you break up with him?" Her daughter replied "I don't want to hurt him" and "I hope he will change". [269] 4. Mrs Vize said that, about a month before her death, her daughter told her that she had broken up with the accused and that she had met someone else. Soon after her daughter brought Mr Meyers to their home and introduced him to Mrs Vize. [270] Mrs Vize stated that the accused still came to their home after that. Mrs Vize recalled that one night, prior to Ms Vize's death, the accused rang the house and asked her to pass on a message that his grandfather had passed away. [271] She said that the following morning she saw the accused parked in front of her house. Mrs Vize asked him why he was not helping his mother as her father had just died. She said the accused replied saying "no, I don't do that, I only take care of Cherie, or just Cherie". [272] Mrs Vize agreed that the accused continued to drive her daughter to work. 5. Mrs Vize said that, on the afternoon of what was most likely Saturday, 20 July 2013, the accused drove Ms Vize from her work at Bondi Junction to her home in Dolans Bay. Mrs Vize stated that the accused said he was too tired to drive to Wollongong and instead he slept at her house. [273] Mrs Vize said that at about 1am or 2am in the morning she heard "loud shouting" between Ms Vize and the accused. She recalled hearing her daughter say to the accused "we are not together … . I [am] only going to help you with this exhibition and you have to have a life and that's it". [274] Mrs Vize also heard her daughter state "that's it you have to have a life and move on". [275] Mrs Vize told the accused he had to go home. The accused said "I'm going to crash the car". Mrs Vize told him she did not care. However her daughter intervened and told the accused to "come back and sleep in my room". [276] Mrs Vize said that she told her daughter to sleep in a different room to the accused. Mrs Vize said that the next morning the accused drove her daughter to work at Bondi Junction. They returned that afternoon. Mrs Vize gave her daughter some money for painting materials and her daughter went with the accused to Wollongong. She said that was the last time she saw her daughter alive. [277] 6. Mrs Vize received a phone call from her daughter at 7am on the morning of 22 July 2013. She recalled her daughter saying "Mum, I'm coming home soon". [278] Mrs Vize recounted the events of that afternoon when she was contacted by a social worker from Wollongong Hospital. She and her husband caught a taxi to the hospital. During the taxi ride she heard on the radio that someone had been stabbed and realised that it was her daughter. When she arrived at the hospital she was advised that her daughter had been stabbed, had experienced cardiac arrest and there was a 30 minute period when no blood flowed to her brain. [279] She spent time with her daughter before she passed away. 7. Under cross-examination, Mrs Vize stated that she was not aware her daughter continued to have sex with the accused after they broke-up. [280] She stated that she believed that when her daughter stayed at the accused's home she slept in a spare room. [281] (B) Medina Hasic 1. Ms Medina Hasic met Ms Vize in year 3 at primary school. She considered Ms Vize to be her best friend. [282] She described Ms Vize as a friendly, caring person who was capable of great empathy. [283] 2. A significant part of Ms Hasic's evidence consisted of her description of the course of Ms Vize's relationship with the accused from 2010 to 2013. It is not necessary to recount much of that evidence. Only four matters need to be noted. First, Ms Hasic recalled meeting the accused in 2010 and instantly formed an adverse opinion of him such that from then until Ms Vize's death she only met the accused in person once, being at a birthday party in January 2011. [284] 3. Second, Ms Hasic recounted Ms Vize continually complaining that the accused was at her place so regularly that "there was hardly any time she had to herself". [285] 4. Third, Ms Hasic recalled that sometime in 2011, Ms Vize became pregnant and had an abortion. Ms Hasic said Ms Vize then ended her relationship with the accused. Ms Hasic did not learn it had resumed until early in 2013. In cross-examination, Ms Hasic agreed she could have been confused about the timing of the abortion. [286] Ms Hasic also said that she knew that in 2012, Ms Vize and the accused were still in contact but she did not think they were in a "romantic boyfriend/girlfriend official relationship". [287] Ms Hasic said she knew that Ms Vize and the accused were not in an "exclusive" relationship during 2012 in that Ms Hasic "didn't quite know [if Ms Vize] was seeing Michael Quinn specifically, but I knew she was seeing other people". [288] 5. Fourth, the balance of Ms Hasic's evidence concerned events in the immediate weeks before Ms Vize's death. Ms Hasic recalled that, sometime around May 2013, Ms Vize mentioned that she was having difficulty finding spare time with "Michael being around" and that "she didn't have the energy to tell him to go away". [289] Ms Hasic recalled that: [290] "[Ms Vize] also told me that [the accused] was saying that he was going to kill himself if they didn't get back together and she felt guilty and concerned about him so she was spending time with him." 1. Ms Hasic said that on 23 June 2013 Ms Vize introduced her to Mr Meyers. Ms Hasic deduced it was "like a … boyfriend test situation where she wanted me to give my first impressions of him". [291] She recalled receiving a text message later that night from Ms Vize saying how happy she was to be seeing Mr Meyers. Ms Hasic responded by advising Ms Vize not to see the accused anymore but recalled Ms Vize saying that he was "back around". Ms Vize told her that she was deleting messages between herself and Mr Meyers on Facebook and on her phone to avoid the accused discovering them. [292] 2. Ms Hasic stated that on 1 July 2013, Ms Vize told her over Facebook that she and Mr Meyers were officially boyfriend and girlfriend. [293] Ms Hasic recalled that she saw Ms Vize on 12 July 2013 who told her that she was receiving constant text messages from the accused about his grandfather being ill. Ms Hasic said that Ms Vize told her the accused had waited in his car for her to come home and slept over at her house. [294] 3. Ms Hasic said that Ms Vize told her that on 14 July 2013 the accused found a message on her Facebook account about Mr Meyers. Ms Vize told her that she "had a very long conversation" with the accused and by the end of that conversation they "officially said good-bye to each other". [295] 4. Ms Hasic recalled that on 20 July 2013, Ms Vize posted a picture on Facebook of Mr Meyers sleeping with a sketch next to him and posted "something about seeing beauty in the things around you and will give you inspiration for artwork". [296] 5. Ms Hasic said that she did not believe that after 1 July 2013, Ms Vize was sleeping with both Mr Meyers and the accused. [297] (C) Melody Loke 1. Ms Melody Loke befriended Ms Vize during 2012 when they both studied visual arts at the University of Sydney. [298] She described Ms Vize as "bubbly and outgoing" as well as "very caring". [299] 2. Ms Loke had dinner with Ms Vize on 19 July 2013. [300] Ms Vize told Ms Loke that she had broken up with the accused and "she had begun dating someone new, a man named Andrew". [301] Ms Vize told Ms Loke that she was worried about the accused "because he was threatening suicide". [302] Ms Vize also told her that "she didn't want to stop hanging out with [the accused] because she still care[d] about him and she still wanted to be his friend". [303] Ms Vize told Ms Loke that the accused "told her that he was okay with – he could handle her sleeping with somebody else but not being in a relationship with somebody else". [304] 3. On 21 July 2013, Ms Loke noticed that Ms Vize posted a photograph and sketch of Mr Meyers sleeping on Facebook. [305] At around 7.30pm, Ms Loke spoke briefly to Ms Vize on the telephone. Ms Loke said that Ms Vize "sounded emotionally drained and very tired … I knew she was with Michael because she called me back on Michael's phone". [306] Ms Loke deduced they had been arguing. At one point Ms Loke spoke to the accused who asked "[s]o what do you know about the situation with me and Cherie?" Ms Loke replied "I understand it's not exactly going swimmingly". Ms Loke said that the accused replied "you can say that again" then "heaved a deep sigh" and said "I don't know what I'm going to do". [307] In cross-examination, Ms Loke said that the accused "sounded exhausted, really emotionally drained" and "it was a lower mood than usual". [308] (D) Andrew Meyers 1. Mr Meyers met Ms Vize through an online dating site in 2011. [309] They became friends and communicated with each other during the ensuing years. About three weeks prior to her death Ms Vize told Mr Meyers that her relationship with the accused was over and they began seeing each other. [310] 2. In his evidence-in-chief, Mr Meyers was questioned on the premise that he had seen Ms Vize at around 10.30pm on Saturday, 20 July 2013 and spent part of the night with her. [311] Based on the telephone records and Mrs Vize's evidence, I am satisfied that he was mistaken and he was instead recounting the events of the evening of Friday, 19 July 2013. Ms Vize spent that evening with Mr Meyers at his home in Macquarie Fields and the next morning he drove her to Bondi Junction for work. [312] At 2.28am on the morning of Sunday, 21 July 2013 he received a text from Ms Vize that stated "good night perfect man. Sweet dreams". [313] He received a further text message from Ms Vize at 3.56pm on 21 July 2013. A search of Ms Vize's phone reveals that in this message Ms Vize made mention of her using the morning after pill. [314] (E) Telephone and SMS records 1. The Crown tendered various records concerning the telephone and SMS contact between the accused and Ms Vize as well as between Ms Vize and Mr Meyers in the weeks prior to her death. These were obtained from three sources. 2. The first source was the accused's and Ms Vize's mobile phones. One obvious limitation on that material is the evidence that Ms Vize deleted many of the messages from her phone. [315] It is clear from the carrier records noted below that there were far more contacts or attempted contacts than was evident from the material downloaded from the accused and Ms Vize's phones. [316] Also, not all SMS messages between the accused and Ms Vize retained on the phones were presented to the Court in the Crown case. Detective Mortimer was called in reply by the Crown to confirm one part of the accused's evidence, namely, that Ms Vize had sent him a text early in the morning of Saturday, 20 July 2013. [317] Detective Mortimer stated that due to a mistake he "left out a number of text messages" from the table recording the messages obtained from the download of the mobile phones that had previously been tendered. [318] 3. The tables produced from the downloads that were tendered revealed nine messages from Ms Vize to Mr Meyers in the period of 17 July 2013 to 21 July 2013. [319] The most significant message was noted in [156]. The table also revealed 29 messages that passed between the accused and Ms Vize in the period of 12 July 2013 to 21 July 2013, seven of which were from Ms Vize to the accused and 22 were from the accused to Ms Vize, including five missed calls on 19 July 2013. [320] In particular, on 12 July 2013, the accused messaged Ms Vize telling her that her grandfather had a stroke. On 17 July 2013, at around 5pm the accused messaged Ms Vize stating as follows: [321] "Im sorry for all the troubles … . I loved you so much that the one thing i always feared was losing you. In the end i pushed u away and its that which ultimatly proved my greatest mistake. We have been through much together that dispite the pain i have and will always love you. I wish nothing but the best for u … Live by ur own design and be happy. Love u always …" 1. The second source of evidence of telephone or SMS contact between Ms Vize and the accused as well as Ms Vize and Mr Meyers was a set of records taken from the telecommunication carrier, Optus. [322] Detective Mortimer's analysis of the carrier records produced a spreadsheet of the telephone contact or attempted contact between the accused and Ms Vize and between Ms Vize and Mr Meyers. [323] These records also had their limitations. Detective Mortimer agreed that times of the contact as revealed on the carrier records were difficult to reconcile with the timing of the messages that were downloaded direct from the phones. [324] Further, Detective Mortimer explained that the "cleaning software" used by the police to analyse carrier data had incorrectly changed some of the call types from SMS to voicemail records. [325] Detective Mortimer also agreed that in producing the spreadsheets from the carrier records there were a number of "filtering errors". [326] 2. Even allowing for those inaccuracies, the spreadsheets prepared from the carrier records demonstrate a regular and relatively equal number of contacts and attempted contacts between Ms Vize and Mr Meyers in the period of 10 July 2013 to 21 July 2013. In contrast, between Ms Vize and the accused, the spreadsheet shows 227 contacts or attempted contacts by the accused of Ms Vize and only nine contacts or attempted contacts by Ms Vize to the accused during the same period. 3. The third source was the telephone records for the landline of Mrs Vize's home phone. [327] Detective Mortimer identified 61 calls from the accused's mobile phone to that home phone in the period 10 July 2013 to 21 July 2013. (F) Assessment 1. I accept that each of Mrs Vize, Ms Hasic, Ms Loke and Mr Meyers were truthful witnesses. I also accept that they have accurately recounted what they saw, heard, observed and discerned. 2. There are a number of reasons to be careful before attaching much weight to evidence given by a third party about a relationship of the kind that existed between Ms Vize and the accused. Relationships often defy categorisation and theirs was no exception. A number of witnesses generally recounted Ms Vize's statements to them. Such evidence was hearsay, albeit admissible (Evidence Act, s 65(2(b)), and should be treated with caution. For example, in the case of Ms Hasic, she clearly disliked the accused. The descriptions of Ms Vize's agreeable personality suggest that she was more likely to raise her complaints about the accused with Ms Hasic and perhaps take any compliments of him elsewhere. Further, there is the obvious fact that this evidence was recounted by people close to Ms Vize who were grief stricken by her death and (understandably) blame the accused it. Such a circumstance can clearly affect any hindsight discussion of the relationship. 3. Nevertheless, a consideration of the totality of their evidence, the evidence of Mrs Quinn and Thomas along with the telephone and SMS records overwhelmingly suggests that in the weeks preceding her death Ms Vize told the accused that she had met someone else, that their relationship of boyfriend and girlfriend was either over or was coming to an end and the accused was distressed about both matters so much so that he threatened self-harm. 4. It is true that Ms Vize and the accused continued to see each other and sleep in the same bed after the time Ms Vize told the accused that their relationship was over (or soon would be). It is clear from her words and her actions that Ms Vize still cared for the accused, was worried the accused might self-harm and was concerned that he not feel abandoned. There is nothing unusual much less duplicitous in her behaviour. However, she repeatedly told the accused that their relationship, at least as boyfriend and girlfriend, was either over or coming to an end. As Mrs Vize recalled on the Saturday evening before her death, Ms Vize told the accused that they were not together and that he had to "move on". She told her friends about her new relationship and posted about Mr Meyers. According to both Mrs Quinn and Ms Loke on the night before Ms Vize's death she and the accused were arguing or at least upset. The accused told his mother how upset he was that she was seeing someone else. [328] Ms Loke spoke to him and he was upset about the breakup. [329] Ms Vize told Ms Hasic and Ms Loke that the accused threatened self-harm, [330] and he did so in the presence of Mrs Vize. [331] 5. As I will explain, the accused maintained to both the psychiatrists and in his oral evidence that it was he who instituted the breakup of the relationship, that ultimately Ms Vize wanted to resume the relationship with him and he was suicidal because he saw no way out of their relationship. For the reasons set out below, I reject this evidence along with the remainder of his evidence that is not confirmed or corroborated by independent evidence. On this issue, there is no independent evidence that supports the accused's version. 6. The end result is that I am satisfied beyond reasonable doubt that, in the weeks preceding her death, Ms Vize repeatedly told the accused that she had met someone else, that their relationship as boyfriend and girlfriend was either over or was coming to an end and the accused was distressed about both matters. 7. Further, I am satisfied (and to the extent necessary, satisfied beyond reasonable doubt) that: 1. By late June 2013, Ms Vize had determined that she would end the relationship with the accused and commence a relationship with Mr Meyers with whom she was besotted. She introduced Mr Meyers to her friends and family. She publicly declared the relationship via Facebook. However, Ms Vize still cared for the accused and was concerned about how he would respond to the breakup; 2. By no later than 14 July 2013, Ms Vize had told the accused that the relationship was over or was coming to an end. On 17 July 2013, he sent a message acknowledging that and regretting the fact that it would happen. However, he could not accept it and repeatedly telephoned and messaged her despite the fact that she did not often respond. Part of his reason for doing so was his sadness about the health of his grandfather; 3. Ms Vize had dinner with Ms Loke on 19 July 2013 and then spent the evening with Mr Meyers. On the morning of Saturday 20 July 2013, Mr Meyers drove to her work at Bondi Junction. She was collected by the accused and driven to her home at Dolans Bay where they both spent the night. The following day the accused drove to her work at Bondi Junction and then collected her. They drove to Mrs Vize's home at Dolans Bay and then to Wollongong; 4. On the evening of Saturday, 20 July 2013, Ms Vize and the accused argued over Ms Vize ending the relationship. She implored him to move on with his life; 5. The accused saw the text that Ms Vize sent to Mr Meyers at around 3.26pm on Sunday, 21 July 2016 referring to the morning after pill. This distressed the accused so much that he discussed it with his mother that evening and mentioned to his brother that Ms Vize was sleeping with someone else; 6. On the evening before Ms Vize's death, she and the accused again argued over the breakup. The accused was by this time despairing; and 7. The accused threatened self-harm in front of Mrs Vize on the evening of Saturday, 20 July 2013. He had expressed thoughts about self-harm in the context of the relationship breakup prior to that time. (4) The Accused's Case 1. The accused gave evidence over four hearing days spread over a week. [332] He is intelligent and articulate. He was able to understand the questions asked of him and clarify any matter of which he was uncertain. At various times both before and during the trial, his Counsel, Ms Manuell SC, raised a (legitimate) concern about the accused's ability to access and review the Crown brief as he did not have the means of accessing it in electronic form. There was no indication that this inhibited in him in answering questions. (A) The accused's evidence 1. The accused attended school until year 12, which he completed in 2006. He commenced a computing degree at the University of Western Sydney in 2007 [333] before transferring to the University of Wollongong to study history and sociology. [334] He later enrolled in a creative arts degree. [335] At the commencement of 2010 he transferred to the University of Sydney. [336] He graduated from the University of Sydney in May 2013. [337] 2. The accused was close to his grandparents, especially his maternal grandfather. [338] The accused learnt in July 2013 that his maternal grandfather was gravely ill and he passed away while the accused was in hospital after he stabbed himself. [339] 3. The accused stated that towards the end of primary school he was referred to a school counsellor who sexually assaulted him. He explained that he never spoke to another adult about that assault until he was interviewed by Dr Furst and Dr Allnutt for these proceedings. [340] He did not tell Dr Olav Neilssen because he thought it was "irrelevant in the grand scheme of things." [341] 4. At various points in his evidence the accused addressed the incident(s) that caused him to be suspended from the University of Wollongong in 2009. I address that evidence in detail below. It suffices to state at this point that he was referred for psychological counselling. He completed a self report form at a clinic on 30 July 2009 in which he described the problem that he was seeking help for as "OCD", including having to turn lights on and off before bed and having to check himself as he passed near a bin. [342] The accused confirmed the accuracy of that report. [343] 5. The accused also described the repetitive behaviours he engaged in during the years prior to 22 July 2013, including "showering a certain number of times in a certain way" [344] and for "the best part of two hours," [345] closing the door in his room three times to make sure it was shut and asking others to confirm it was shut for him. [346] The accused said that he turned the light off in his room on and off 12 times a day [347] and became frustrated if it was not done properly. [348] The accused stated that he held casual jobs, one of which was packing shelves at a supermarket. [349] He said he became obsessed with how the groceries were stacked. [350] 6. The accused also described instances of self-harm, including cutting his face with a razor blade as described by his brother. [351] He described self-harming as a form of self-punishment and said he blamed himself for not taking his own life when he was 12 after he was sexually abused by his counsellor. [352] The accused said that he was prescribed the anti-depressant sold under the brand name "Lovan" in 2008. He described it as having no immediate effect but "as time went on" he found he could "cop[e] significantly better". [353] He claimed that Ms Vize persuaded him to stop using the drug in the months prior to July 2013. 7. The accused stated that he had long planned to kill himself on his 25th birthday, being 30 September 2013, because he witnessed one of his grandparents become incapacitated and feared the same would happen to him. [354] He stated that he was scared that he would lose the "governance of my own mind". [355] 8. The accused met Ms Vize and started a sexual relationship with her in about May 2010. They shared a common interest in art. [356] In the winter of 2010 she fell pregnant and had an abortion. The accused stated that after she had the abortion he tried to kill himself by jumping off a cliff at Stanwell Tops. [357] The accused said that about a month of two after the abortion Ms Vize threatened to slash her wrists. [358] The accused and Ms Vize broke-up but they continued seeing each other and their relationship resumed again. [359] He described a number of ensuing breakups and reconciliations between May 2010 and July 2013. Throughout this period they continued to see each other, the accused helped with her studies and drove her to work. [360] The accused said that after he met Ms Vize most of his compulsive behaviours ceased but they were "replaced with telephone calls" to Ms Vize. [361] 9. The accused stated that on 10 July 2013, he broke off the relationship with Ms Vize after she told him she was seeing another man, Mr Meyers. [362] The accused stated that he was not "upset in the slightest" [363] by the breakup but instead considered it "was such a relief". [364] He described their relationship as "dysfunctional … from 2010 onwards" [365] and denied that Ms Vize had any reason to express concerns to her friends about his response to the breakup. He denied that Ms Vize had any knowledge of his self-harming. The accused stated that Ms Vize expressed concern to him that she might be predisposed towards suicide because of her family history. [366] 10. The accused stated that despite the breakup Ms Vize continued to want him to "keep being there with her … show up and drive her around and ... still wanted to have a sexual relationship". [367] Ms Manuell SC took the accused through the tables showing the excessive number of calls he made to Ms Vize in that period. [368] The accused explained that those calls were a combination of himself and Ms Vize making arrangements to meet so that he could drive her to work, [369] his need to speak to Ms Vize about his grandfather, because she was "the love of my life and she's the only person who can ease any pain in my head" [370] and his having developed a "ritual" of needing to hear the deceased's voice before he could go to sleep at night or get out of bed in the morning. [371] With this ritual, the accused stated that when Ms Vize ignored his calls he found it "frustrating, because I needed to complete the ritual in order for me to get out of bed and function during the day". [372] In cross-examination, the accused also stated that he repeatedly telephoned Ms Vize because he was concerned that she might be "attacked" and that "her safety is my job". [373] 11. I found both the evidence of the telephone calls and the accused's explanation of them irreconcilable with his protestation that he broke up with Ms Vize and in doing so felt a sense of relief. I am also sceptical that the accused had the "ritual" he spoke of, given that none of the psychiatrists recorded this as a manifestation of his OCD in their reports 12. The accused was taken to the message he sent to Ms Vize on 17 July 2013, noted in [159]. His explanation for his statement that he feared losing her and had pushed her away was that "I always feared something bad would happen if I didn't carry on with my rituals" meaning "something bad would happen to her". [374] 13. The accused was asked about the argument that Mrs Vize overheard late on Saturday 20 July 2013. The accused admitted that Ms Vize said the words attributed to her by her mother [375] but stated that the argument arose from his telling Ms Vize that he had been sexually abused by the school counsellor and of his suicide attempt following her abortion. [376] The accused stated that Ms Vize became "really angry" at the disclosure of the latter because she would get angry when she found out that he had kept things from her. [377] I found this evidence particularly implausible. The words attributed to Ms Vize by her mother are inconsistent with the accused's assertion that he ended the relationship and was relieved that it was over. 14. The accused agreed that Mrs Vize asked him to leave and he made reference to crashing his car before Ms Vize intervened to make him stay. [378] The next day, he collected Ms Vize from Caringbah. He drove her home and then to Wollongong. [379] The accused said that during the car trip he told Ms Vize that "this is the last time we'd see one another". [380] He described her response as follows: [381] "Once I started telling her that I intended to leave her life entirely, she started to breakdown and cry, telling me that I [was] the one constant thing in her life and how sorry she was for hurting me; that she didn't want me to go. I [was] telling her that it were the best thing for both of us that I disappear, because inevitably I didn't want her to ever hear or find out in any way that I had done something to myself. And she became inconsolable." 1. The accused stated that they bought a DVD, returned to his home and went to his room. Ms Vize told him she would never see Mr Meyers again. He stated that they had sex. [382] After an hour or so they fell asleep watching the DVD. [383] The accused said an hour later he woke up in a cold sweat. He got out of bed and sat in the lounge room. [384] He said "as I sat there all I could think of was suicide being the best choice for me" and that it "would not only allow Cherie to be free to do whatever she wanted" but also "give her that little bit of a kick to grow up a bit and rely on herself rather than having to rely on me". [385] He contemplated suicide but said he "didn't want to do it there and then while everybody were asleep and they wake up and find me". [386] He returned to bed. [387] 2. The accused said that when they woke up the next morning, he and Ms Vize had sex again. [388] The accused said he was "more panicked in the morning" than the night before. [389] Both he and Ms Vize got up but she then returned to his room as did he. He said at this point he "just really needed to do harm to myself". [390] He went back to the kitchen, took a knife from the drawer and placed it in his pocket "in order to go outside and use it on myself". [391] As he walked out to the front yard he realised Ms Vize was having a cigarette behind the trees on the right side of the front yard as one faces the street. 3. The accused went to the garage to look at his artwork. [392] He returned to the front yard and spoke to Ms Vize. He asked her if she was "happy with us being back together" and she replied "yes and … she said that she was sorry that she'd hurt me". [393] The accused said they "cuddled" and he told her when she finished smoking to go inside the house and start painting. He said that he walked back to near the antenna pole and looked over at his childhood "cubby house". He thought Ms Vize had gone back inside. [394] 4. The accused put the knife up to his sternum and held it there, but then Ms Vize "came running down the stairs, asking me what I was doing". [395] He said she "turned me around", he dropped his "left hand down, and she started reaching for the knife". [396] The accused said he tried his best to keep the blade away from her but "[w]hen she couldn't reach with her left hand she reached out with her right". [397] The accused held the knife in his right hand, pointed upwards. Ms Vize was trying to grab it and he was trying to keep it away from her. [398] The accused said: [399] "After that point I ‑ I'm not entirely sure. When she had tried to reach for it with her right hand, I think she grabbed the top of my hand where the hilt of the blade would have been, and either she or I lifted it up. I think she brought it closer towards her as I was trying to bring it back towards me … As it was all occurring, I then noticed blood on the right-hand side of her neck. Not entirely sure how long we'd been struggling, but I then pulled it back towards me, and she reached out again with her left hand … ... and moved her [left] hand up over my right hand trying to get the blade off me ... She started pulling my hand closer towards her as I was trying to pull it back. I was struggling, moving my arm around trying to release her grip from me. Not entirely sure what happened. I think my strength lapsed, and I lent towards her, and I noticed the blade was in her neck. The first thing I did was take it out and throw it to the ground." 1. The accused said he did not hear Ms Vize say anything. The accused stated that his only intention was to see "that blade inside of me … as relieving the stress, the anxiety" and that if he did so "Cherie would have a far better life". [400] He denied having any intention to harm Ms Vize. [401] 2. The accused said he recalled his mother "pulled" him back from Ms Vize when his hand was on the wound to try and stop her bleeding. [402] He made his way to the house, washed her blood off his hands, tried calling out to his brother and grabbed another knife from the knife-block near the sink. [403] He walked out the front. He said his "next clear memory" is laying on his back and talking to his brother. [404] 3. In cross-examination, the accused stated that after Ms Vize's throat was cut and she was being attended to by Mrs Quinn he gave her "a cuddle and a kiss" and told her "everything will be alright". [405] 4. He also agreed that his "main concern" was Ms Vize and that if he had dropped the knife or given it to her during the struggle she would still be alive. [406] When asked why he did not drop the knife he stated that "at that point I'd gone to a place where only pain or death could bring me back." [407] He said that he "needed [the knife] to go inside of me" [408] but agreed that he had "no satisfactory explanation" for why he did not drop it. [409] 5. The accused was asked in cross-examination about the wounds to Ms Vize's neck. The accused stated that they were caused by the "struggle for a blade that should have been inside of me." [410] When asked how there could be multiple wounds in the same place, he stated that the knife could have "stayed up" near her neck during the struggle. [411] (B) 2009 incident 1. One matter of particular significance to an assessment of the accused's credit was the evidence he gave in relation to his suspension from the University of Wollongong in 2009. 2. On the second day that he gave evidence, 19 August 2016, the accused was asked about an incident where he was suspended from the University of Wollongong. The accused stated that "the University felt that it was for my own benefit" and that until he received "adequate mental health ... support" he should not be permitted to return. He was then asked: [412] "Q. What was the incident that gave rise to this intervention by the university? A. I walked into a lecture room and there were bins sitting by the door and a banana peel half hanging over the edge. Normally on its own it would be enough to prompt a rather extreme OCD episode but with the banana peel hanging over the edge I felt that if I walked too closely that it would somehow fall off and touch me and I'd have to either go home and change or I would just have to throw the clothes out altogether. I then sat in the lecture room and I was sitting with a friend but I was just agitated at the time because of the bin and she were trying to keep me calm and keep me focused on the lecture but in the end I chose to walk outside and just try and relieve some form of frustration so I would try and tell myself over and over I hadn't touched the bin, I hadn't touched the banana peel, but the more I did that in my head the worse it became so in the end I just started having to touch one or two things around, so I touched the wall three times and that wasn't enough." (emphasis added) 1. The accused explained that when he "touched the wall" he hit the wall. He said that as he did that, "a member of staff I believe came up and asked if I were all right and I'm not entirely sure what I said to them but I was quite loud, verbally abusive towards them". [413] Once the stress abated he returned to his lecture but after it finished he was escorted off campus by security. [414] The accused was referred for psychological counselling. 2. The accused stated that the psychologist he was referred to approved his return to the University of Wollongong. [415] He was then asked: [416] "Q. And you had no further problems at university for the rest of your time there? A. No, but ultimately in the end I opted to change universities." (emphasis added) As stated, the accused enrolled at the University of Sydney in 2010. 1. The balance of the accused's evidence on Friday, 19 August 2016 concerned other topics. The proceedings were meant to resume on Monday 22 August 2016 but they were adjourned on that morning. In the meantime, the Crown had inspected documents from the University of Wollongong and provided them to the accused. An adjournment was granted to allow the accused to consider the material and address it in his evidence-in-chief if he wished to. 2. When the proceedings resumed on Tuesday, 23 August 2016, the accused was reminded of the question and answer set out in [197]. He was then asked if there was "another incident" at the University of Wollongong in the spring semester of 2009. The accused answered "[y]es there was two days in which a friendship [with a female student] had broken down." [417] 3. The accused agreed that allegations were made against him that he had physically blocked that student's path and had touched her on various parts of the body, albeit not sexually. [418] He agreed that he received a letter dated 21 August 2009, which recorded that he was suspended pending an investigation into a complaint by the student. [419] He also agreed that he appealed but that was dismissed. He said that the University insisted on a continuation of counselling and the submission of a psychologist's report before he could return. [420] The accused denied that he had any sexual interest in the student. However, he agreed that he blocked her path but only because he was "trying to reclaim some property that she had borrowed". [421] In cross-examination he agreed that incident occurred on the first day that he resumed classes after being suspended over the incident involving the bin. [422] The accused also agreed there was an incident where he had scratched his face with a pen and asked the student in a lecture whether he was bleeding. [423] 4. The accused was then taken back to the question and answer noted in [197] above and asked: [424] "Q. Is there any reason to why you said last week that you hadn't had any further problems. A. Not really. I didn't think them to be all that important. Seven years on they weren't all that important in the grand scheme of things." 1. In cross-examination it was put to the accused that he had repeatedly texted and phoned the complainant, [425] waited outside classrooms for her, [426] and otherwise harassed her, [427] all of which he denied. It was also put to him that he procured someone to pose as his sister and contact the complainant to attempt to persuade her to drop her complaint, a matter he also denied. [428] The accused agreed he wrote to a friend of the complainant in the UK in an effort to restore the friendship. [429] 2. I consider the manner in which this evidence unfolded to be highly damaging to the accused's credibility. His initial denial that he did not encounter any further problems at the University of Wollongong was clearly false. On any view, being suspended due to an allegation of physically intimidating and harassing another student is a "problem". Further, the level of detail that the accused provided about this further suspension when it was specifically raised with him suggests that he was clearly able to recall what happened, or at least his version of what occurred. (C) Assessment 1. There are two principal matters that warrant my rejection of the accused's evidence. The first has just been addressed, namely his evidence that he did not experience any further problems at the University of Wollongong after his first suspension in 2009. Even allowing for his good character, I am satisfied that his evidence was untruthful. 2. The second matter is the accused's evidence concerning the last few weeks of his relationship with Ms Vize, prior to her death. As explained, that evidence was to the effect that the accused initiated the breakup of his relationship with Ms Vize, that he was not "upset in the slightest" [430] about about the breakup but was instead relieved about it, and that he despaired about being trapped in the relationship with Ms Vize, not ending it. This evidence was completely implausible. It was internally inconsistent and inconsistent with the evidence of the other witnesses as well as the telephone and SMS records. His attempt to reconcile the number of telephone calls and messages, especially the message he sent on 17 July 2013, with his version of how the relationship ended was unconvincing. His attempt to explain Mrs Vize's evidence of what she heard on the evening of Saturday, 20 July 2013 did not address how it was that Ms Vize told him to "move on" if he was the one who had initiated the breakup. The accused denied that he was upset about the text message sent by Ms Vize to Mr Meyers during the afternoon of Sunday 21 July 2013 but instead said he was "quite happy that [Ms Vize] was taking responsibility" (for contraception). [431] This cannot be reconciled with Mrs Quinn's evidence of what the accused discussed with her the night before the stabbing. Ms Loke's evidence of their telephone conversation clearly suggests that on the evening of 21 July 2013, the accused was upset that they were breaking up, not staying together. 3. Notwithstanding his good character, the combination of the accused's untruthful evidence concerning his suspension(s) from the University of Wollongong and his completely implausible evidence concerning the (crucial) events of the last few weeks of Ms Vize's life, compel me to reject any aspect of the accused's evidence that was not confirmed or corroborated by independent evidence. (D) Consciousness of guilt 1. As noted, the Crown submitted that the accused told lies in his evidence and to the psychiatrists, whose evidence is summarised below. The Crown sought to rely on those lies as demonstrating a consciousness of guilt. Consistent with [20], the Crown's written submissions identified the alleged lies relied on. 2. One alleged lie identified by the Crown is the accused's assertion that Ms Vize's death was accidental and his denial that he deliberately stabbed her. To rely on this as a lie to demonstrate consciousness of guilt would involve circular reasoning. I could only conclude that was a lie if I concluded that the stabbing was deliberate, in which case there would be no utility in taking the analysis any further. 3. The other lies sought to be relied on by the Crown concern the accused's evidence about the last few weeks of his relationship with Ms Vize and his attempts to maintain his assertion that he broke-up with her and was resisting her attempts to reunite. While I regard that evidence as completely implausible I am not sufficiently convinced it is lie; that is, I am not persuaded that at the time the accused told that to the psychiatrists and gave evidence about it in Court he knew it was untrue. The impression I gained from the accused is that his life is reduced to ruminating on the past and his present circumstances. To that end, it is reasonably possible that since July 2013, the accused has reconstructed the last few weeks before Ms Vize's death to construct a narrative that portrays himself as a noble and romantic figure who sought to sacrifice himself for Ms Vize's wellbeing, only to have tragedy ensue. (5) Murder (A) Deliberate act 1. The first issue that arises is whether the Crown has established beyond reasonable doubt that the accused deliberately stabbed Ms Vize. I have already noted that the Crown case is circumstantial in that no witness saw the accused stab her and he did not admit that he stabbed her. I have set out the principles applicable to an assessment of a circumstantial case at [16ff] and will treat them as the relevant form of "warning". 2. Given that the accused and Ms Vize were the only persons in the front yard of the accused's home at the time she was stabbed, there are only three possible explanations for Ms Vize's stabbing, namely, self-harm, deliberate infliction of harm or accidental infliction of harm. 3. At the outset, I find that the Crown has excluded the possibility that Ms Vize deliberately harmed herself. My rejection of that much of the accused's evidence that was not confirmed by independent evidence means that there was no satisfactory evidence that Ms Vize was suicidal. To the contrary, other than when she was with the accused she was happy and had much to live for. Dr Duflou explained that her neck injuries were inconsistent with his experience of persons who self-harm with a knife. [432] Moreover, the defensive style wounds to her hands cannot be reconciled with her inflicting self-harm. 4. There is no doubt that an inference is at least available that the accused deliberately harmed Ms Vize, given that he was the only person present in the front yard, the nature of the wounds she suffered, the presence of his DNA on the handle of the brown knife [433] and the evidence of Dr Duflou, especially that noted in [121]. The real issue is whether any conclusion inconsistent with the conclusion that the accused deliberately stabbed Ms Vize is reasonably open on the evidence. 5. Notwithstanding my rejection of so much of the accused's evidence that is not confirmed or corroborated by independent evidence, the Crown must still exclude the reasonable possibility that he inadvertently stabbed Ms Vize in the neck as she intervened to stop him killing himself. The necessity for the Crown to disprove that possibility arises from the accused's oral evidence considered with the other evidence that he had expressed suicidal thoughts prior to the morning of 22 July 2013, the fact that he did attempt suicide or at least massive self-harm after Ms Vize's throat was cut and my acceptance that Ms Vize still had residual feelings for him as demonstrated by her presence at his home the previous night and that morning. In considering whether or not the Crown has demonstrated that no inference consistent with innocence is reasonably open on the evidence, I am not limiting myself to the precise version of an accidental stabbing given by the accused in his evidence. 6. As stated in [16], to address this element it is necessary to consider all the circumstances established by the evidence. I have already stated what evidence of the various witnesses I accept. I have made findings as to what knives were used to inflict harm upon Ms Vize and the accused. I was not able to conclude one way or another whether the accused took two knives or one to the front yard before Ms Vize's throat was cut. I am satisfied beyond reasonable doubt that Ms Vize told the accused repeatedly in the weeks preceding her death that she had met someone else, that their relationship of boyfriend and girlfriend was either over or was coming to an end and the accused was extremely distressed about both matters. Of itself, that circumstance is not necessarily inconsistent with the accused attempting to commit suicide and Ms Vize intervening, but it at least establishes a reason or rationale as to why he would harm her (as well as himself). 7. Five other circumstances need to be addressed. 8. The first is the shouting and noises heard in the front yard prior to Mrs Quinn arriving at the scene. Mrs Quinn, Thomas [434] Ms Broad [435] and Mr Warth [436] each heard noises just before or around the time of Ms Vize's stabbing. Both Mrs Quinn [437] and Mr Warth [438] heard Ms Vize protesting to the accused, imploring him not do something. Ms Broad heard a female voice scream. This evidence is not inconsistent with either the accused either deliberately harming Ms Vize or his attempting to commit suicide and Ms Vize intervening. However, it is suggestive of a sustained confrontation and not something instantaneous. 9. The second circumstance is Mrs Quinn's observation that Ms Vize "looked fearful and she didn't want him there." [439] There is no doubt that when she arrived at the scene Mrs Quinn immediately concluded that the accused had stabbed Ms Vize. Mrs Quinn told the triple-0 operator that Ms Vize had been stabbed in the neck. She stated in front of Ms Broad that the accused had stabbed her and told the police and other witnesses that the stabbing arose out of the accused's distress at Ms Vize sleeping with someone else. Of itself, Mrs Quinn's surmise does not prove anything. However, her surmise was, in part, based on her assessment of Ms Vize's fear of the accused when Mrs Quinn first arrived at the scene. I am satisfied that is what she observed. The fact that Ms Vize was fearful of the accused is not necessarily inconsistent with her having been accidentally stabbed with a knife he was carrying. However, it points in favour of a conclusion that the stabbing was deliberate. 10. The third circumstance is the set of statements made by the accused in the immediate aftermath of Ms Vize's throat being cut and his infliction of self-harm. In those statements he expressed a desire to end his life. He told his mother that he could not believe he "missed [his] heart", [440] he told Thomas to "stop helping me" [441] and "don't help me" [442] and asked Constable Zwickl to shoot him. [443] Each of these statements and his actions in self-harming were equivocal as to whether the accused intentionally or accidentally stabbed Ms Vize. 11. The fourth circumstance concerns the layout of the front yard and the location where Ms Vize was stabbed. I have described the layout of the front yard at [37] to [38]. In [124] I concluded that Ms Vize received the fatal wound at or just near the point that Mrs Quinn first saw her with the accused, namely, adjacent to the antenna pole. In his evidence, the accused said he emerged from the garage and was near the antenna pole when Ms Vize came down the stairs towards him. [444] If the accused was not intending to harm Ms Vize and only meant to kill himself then he had space to step away, either backwards or to his left. There was ample space in either direction. It is true that he may have been in a state in which he was determined to commit suicide. Nevertheless, the probabilities point to him having the opportunity to step away and avoid harm to Ms Vize. This possibility becomes stronger when considered with the next circumstance. 12. The fifth and most significant circumstance is the nature of the wounds suffered by Ms Vize. They were described by Dr Bailey in detail. The only uncertainty concerned the size and depth of the fatal wound, a matter I addressed in [125]. 13. I accept Dr Duflou's evidence that, if Ms Vize was seeking to hold or grab the knife to prevent the accused self-harming, then at a "minimum" she must have grabbed the knife four times to suffer the defensive wounds to her right hand that were observed. [445] While that could have happened relatively quickly, a significant amount of force must have been applied between the accused and Ms Vize to make at least the deep cut to the base of her right thumb. In fact, the injuries to Ms Vize's right hand are more indicative of a sustained struggle rather than a quick attempt to restrain the accused. Further, if Ms Vize had intervened to prevent a suicide attempt in which the accused was holding the knife in his right hand, then it is more likely that she would have attempted, initially at least, to restrain his hand with her left hand, given that she was left handed. This is especially so if Ms Vize approached the accused from the front because her left hand would be closest to his right hand holding the knife. The accused was right handed. In his evidence, the accused stated that Ms Vize initially tried to grab the knife with her left hand but he kept it out of reach and she grabbed it with her right hand. [446] While that is possible, it seems unlikely that under that scenario Ms Vize's left hand would not receive a single cut. 14. The injuries to Ms Vize's neck are especially significant. I accept Dr Duflou's opinion that those wounds would be "quite unusual" for a struggle in which the person who received those wounds was supposedly trying to prevent another person from self-harming. The pattern of at least two of the superficial incised wounds is clearly suggestive of the knife running across Ms Vize's neck under the control of one hand and not an irregular movement that would be expected if there was a struggle for control between two people. Most importantly, I cannot envisage how a struggle in which Ms Vize was attempting to grab the knife, or the hand of the accused that held the knife, could lead to her receiving superficial incised wounds to the neck and then a stab wound to the neck of the kind she received (or vice versa). The injuries to Ms Vize's neck and hand were inconsistent with her intervening to prevent him harming herself. 15. To this assessment must be added the ability of the person holding the knife to drop it to avoid harm to the other person if it was not their intention to harm them. Both the extent of Ms Vize's wounds and the evidence of the witnesses who heard Ms Vize's protests suggests a sustained struggle took place. If the accused did not intend to harm her then he could have let go of the knife at a relatively early point. This was taken up with him in cross-examination and he provided no satisfactory answer. [447] Overall, I consider it likely that he accused had the time and space in the front yard to either step away before Ms Vize supposedly grabbed the knife, or drop the knife before the struggle escalated, or both. 16. As explained below, I am satisfied beyond reasonable doubt that the accused was determined to take his own life as he walked out to the front yard that morning. It is therefore possible he was so consumed by the task of taking his own life that he could not drop the knife when he was struggling with Ms Vize because he intended to use it on himself. However, the possibility that he was in such a state that he could not drop the knife during a sustained struggle is very difficult to reconcile with his being sufficiently responsive to walk away when his mother intervened. It is true that, in the meantime, Ms Vize was stabbed and that may have switched the accused's attention from killing himself to assisting her. However, a scenario in which he is focused on killing himself, then focused on helping her before refocussing on killing himself and leaving it to his mother to assist Ms Vize is highly improbable. 17. The task required of the Court at this point is one that involves an assessment of all the circumstances established by the evidence (Hillier at [46]). I have identified the circumstances and considered them as well as the accused's good character. I accept that the Crown has excluded the existence of any reasonable conclusion inconsistent with a finding that the accused deliberately stabbed Ms Vize. In particular, I am satisfied that the Crown has excluded the reasonable possibility that Ms Vize was accidently wounded when she intervened to stop the accused self-harming. I am satisfied that the only reasonable inference that can be drawn from a consideration of all the established facts viewed as a whole is that the accused deliberately stabbed Ms Vize. I am satisfied beyond reasonable doubt of that fact. 18. Three further matters should be noted. 19. First, as noted, the Crown sought to bolster its case by proving that the accused lied in his evidence in denying that he deliberately stabbed Ms Vize and asserting that it was he and not Ms Vize who ended their relationship. The Crown submitted that these lies reflected a consciousness of guilt on the part of the accused. Consistent with [209] I record that no part of the reasoning that led to the finding at [226] relies on any finding that a lie of the accused revealed a consciousness of guilt. 20. Second, in his opening the Crown Prosecutor contended that the principal event that caused the accused to deliberately stab Ms Vize was the realisation that his relationship with her was over or coming to an end and his viewing of the Facebook post noted in [150] and the text message noted in [156]. I have already accepted that the accused was distressed by the realisation that his relationship with Ms Vize was over or coming to an end and from viewing the text message. [448] However, I do not accept that the Crown proved that he viewed the Facebook post. Other than that, I accept the Crown's contention as to what led the accused to deliberately stab Ms Vize, although that is not necessarily inconsistent with him being substantially impaired at that time. 21. Third, I am satisfied beyond reasonable doubt that, at least from the time the accused obtained a knife from the kitchen, he not only intended to deliberately stab Ms Vize he also intended to kill himself. The evidence suggests that he had been at least brooding over that possibility for some days. His discussions with his mother and Ms Loke on the evening prior to the stabbing suggests he was in a state of despair. The events immediately after the killing revealed a lack of hesitancy consistent with a determination to end his own life. Whether findings can be made as to whether the accused fixed upon killing himself, stabbing Ms Vize, or both at an earlier time is a matter I will return to. (B) Causation and intention 1. The evidence of Dr Stewart [449] and Dr Bailey, [450] which I have already accepted, confirms that Ms Vize died from blood loss resulting from the stab wound to her neck which cut her carotid artery and jugular vein. I am satisfied beyond reasonable doubt that the accused's deliberate act of stabbing Ms Vize caused her death. 2. The accused is, and was, highly intelligent. He was clearly aware of the strong likelihood that a person would die if their throat was cut. The only rational inference that can be drawn from his actions in deliberately stabbing Ms Vize in the neck is that he intended to kill her. Accordingly, I am also satisfied beyond reasonable doubt that when he stabbed Ms Vize the accused intended to kill her. 3. It follows that no question of manslaughter by an unlawful and dangerous act arises. Unless a partial defence is established the accused is guilty of murder. (6) Provocation 1. In their written submissions, both Counsel noted that the date of Ms Vize's death, namely 22 July 2013, preceded the amendment of s 23 of the Crimes Act by the Crimes Amendment (Provocation) Act 2014 (NSW), [451] such that the previous provision applied. Nevertheless, Ms Manuell SC expressly disclaimed any reliance on the partial defence of provocation on the basis that, if it is accepted that the accused was affected by an abnormality of mind at the time of Ms Vize's killing, then that was not a characteristic attributed to the ordinary person test found in the former s 23(2)(b) of the Crimes Act. Presumably, it was also accepted that any conduct of Ms Vize towards the accused could not have induced the relevant form of loss of control in an ordinary person who did not possess the accused's abnormality of mind. (7) Substantial impairment 1. Three psychiatrists gave evidence on the issue of substantial impairment. The Crown called Dr Allnutt and the accused called Dr Furst and Dr Neilssen. They are all highly qualified forensic psychiatrists. Each of them were professional in their manner of presentation and were prepared to make concessions where appropriate when answering questions. In the end result, Dr Allnutt and Dr Furst were in agreement that the accused suffered from an "abnormality of mind arising from an underlying condition", specifically OCD and BPD. Dr Neilssen agreed that the accused suffered from OCD. He also diagnosed the accused as suffering from a depressive disorder (or mood disorder), which in the context of this case was not materially different to BPD. However, the psychiatrists disagreed on whether it had been demonstrated that the accused was "substantially impaired" in any of the three relevant respects "by" that abnormality. To resolve that dispute it is necessary to describe the psychiatrists' evidence in some detail. Consistent with s 23A(2) of the Crimes Act, none of the psychiatrists sought to address the issue raised by s 23A(1)(b). Further, one particular difficulty for the psychiatrists was identifying a factual basis upon which to opine in circumstances where substantial impairment only arises it if it was found that the accused deliberately stabbed Ms Vize, yet he denied doing so and the onus of proof on this issue rested upon him (s 23A(4)). 2. Before summarising the respective psychiatric opinions, it is appropriate that I identify the relevant features of OCD and BPD. OCD is an anxiety disorder which creates a level of dysfunction in an affected person. Dr Furst stated that individuals affected by OCD typically fear contamination and may have intrusive thoughts which manifest in a compulsive need for order. [452] Their obsessions, which are experienced as unpleasant, unwanted and intrusive thoughts, are relieved by their compulsions, such as cleaning, which is time-consuming and impairs feelings of wellbeing and psychosocial function. Dr Allnutt's description of OCD was consistent with this. [453] Dr Furst stated that OCD is usually treated with a combination of psychological therapy and anti-depressant medication. [454] 3. Dr Furst described BPD as involving a prolonged disturbance of personality function characterised by "depth and variability of moods". [455] The disorder typically involves unusual levels of instability in mood, chaotic and unstable interpersonal relationships, self-image problems, identity problems and behaviour as well as a disturbance of the individual's sense of self. According to Dr Furst, in extreme cases this disturbance in the sense of self can lead to periods of dissociation. [456] The disturbances can have a pervasive negative impact on many, or all, of the psychological facets of a person's life, including difficulties maintaining relationships in work, home and social settings. Dr Furst stated that attempted and completed suicide are possible outcomes for persons with BPD. [457] He added that one of the diagnostic criteria for BPD is a "fear of abandonment" and that "being abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone" with the disorder. [458] Dr Allnutt and Dr Neilssen's descriptions of BPD (and borderline personality traits) were consistent with that of Dr Furst. [459] (A) Dr Stephen Allnutt 1. Dr Allnutt conducted clinical evaluations of the accused on 12 October 2015 and 27 January 2016. Dr Allnutt was provided with a copy of Dr Neilssen's report as well as the Crown case statement and various reports and statements concerning Ms Vize's death (but not the statements of Mrs Vize, Ms Hasic and Ms Loke). The material that was provided included statements of the accused's family members confirming the various instances of his compulsive behaviour. [460] 2. Dr Allnutt took an extensive history from the accused as well as his account of the stabbing of Ms Vize. Both were generally consistent with the accused's evidence, including the reference to his being sexually assaulted by a school counsellor, although the following additional matters should be noted about what the accused told him. 3. First, Dr Allnutt recorded the events at the University of Wollongong as simply involving the accused reacting to being close to a bin and threatening to "jump off a roof". [461] Dr Allnutt was not provided with any evidence suggesting that the accused had intimidated another student. 4. Second, Dr Allnutt recorded an assertion by the accused that Ms Vize had twice taken an overdose of pain killers in 2011. [462] There is no independent evidence to support that assertion. I do not accept it. 5. Third, the accused told Dr Allnutt that he did not see the text message concerning the morning after pill. Instead, he said that Ms Vize told him about it but "it didn't bother him". [463] 6. Fourth, the accused repeated his account that he broke up with Ms Vize. He said that on the morning of 22 July 2013 he determined to kill himself as that was the "only way it [was] going to register with her, if I'm dead, that we can't be together". [464] 7. Fifth, the accused told Dr Allnutt that he had intermittent suicidal thoughts "for 17 years" and he planned to kill himself on his 25th birthday, being 30 September 2013. [465] 8. Dr Allnutt's initial opinion was based on his acceptance of the accused's account. Dr Allnutt concluded that the accused "would be regarded as manifesting an abnormality of mind derived from an underlying condition in that he manifested a depressive disorder, obsessive-compulsive disorder and histrionic and borderline personality traits." [466] Dr Allnutt stated that he did not consider that the accused was affected by any substantial impairment of the three capacities referred to in s 23A(1)(a) by his abnormality. [467] 9. Under further questioning, Dr Allnutt enhanced his opinion that the accused was affected by borderline personality traits to an acceptance that he had a BPD, adding that "he probably has a personality disorder but the objective information is difficult to find". [468] Dr Allnutt expanded on this as follows: [469] "There are traits, for example, the current self‑harm behaviour, instability in relationships. I suppose to some degree, dramatic expressions of emotions but if you look at his account, for example, a person with borderline personality doesn't manage rejection very well; his account is that he did manage rejection very well. That a lot of his self‑harm behaviour was in response to frustration with OCD, although on other occasions it was also a response to the stress about his partner being pregnant. But the difficulty here is that there seemed to be some problems with his account and I think if one reads between the lines there probably are ‑ he probably does have an underlying personality disorder but with borderline personality traits but I didn't find enough information to have that but I'm willing to concede that it likely is there." 1. In cross-examination, Dr Allnutt was referred to the fact that he was not provided with the statements of Mrs Vize, Ms Hasic and Ms Loke, which contained references to aspects of the accused's behaviour consistent with borderline personality traits. [470] These only served to bolster his opinion that the accused had a BPD. [471] Otherwise, the above extract reflects the dilemma confronting Dr Allnutt in diagnosing the accused as experiencing a BPD, one manifestation of which is an inability to cope with rejection in circumstances where the accused was asserting that he managed rejection well. That said, it is clear that the above opinion was not based on an acceptance of the accused's account but a consideration of the independent evidence. Dr Allnutt's approach to this point is consistent with the findings that I have made. 2. Next, Dr Allnutt was asked to assume, contrary to the accused's account, that the accused deliberately stabbed Ms Vize in response to his rejection by her. [472] On that assumption, Dr Allnutt maintained his opinion that the accused was not impaired in his capacity to understand events or judge whether his actions were right from wrong. [473] I address this aspect of his opinion below. 3. On the same basis Dr Allnutt then addressed whether the accused's capacity to control himself was substantially impaired. He stated: [474] "People with borderline personality disorder, and sometimes people with depression, but more on the severe end of the scale of depression, are more prone to react. People with borderline personality are more prone to react to rejection, in other words, they can get upset very easily, they engage in re‑current self‑harm behaviour, for example, they may engage in reckless behaviour, get in the car, drive recklessly, so they may engage in reckless behaviour to deal with that emotional response of rejection which may be what we might formulate happened here. The question is was it a loss of control? It's difficult for me to know if it's a loss of control because I think it requires a forensic analysis of the behaviours that he engaged in in the time leading up to the alleged offending. If it was a sudden reaction to something she said, then that may go towards a loss of control. If it was a planned event in order to seek revenge or to find retribution, then that may go against loss of control." (emphasis added) 1. Two interrelated points emerge from Dr Allnutt's comment, namely the connection between the amount of planning or premeditation involved in the stabbing of Ms Vize and, according to Dr Allnutt, the difficulty in undertaking a "forensic analysis of the behaviours" that the accused engaged in in the time leading up to the stabbing of Ms Vize in the absence of any account from the accused that was consistent with him deliberately stabbing Ms Vize. 2. In relation to the first matter, Dr Allnutt was referred to the fact that the accused placed the knife that stabbed Ms Vize in his pocket before he went outside to the front yard. Dr Allnutt accepted that the "more planning is involved the less likely its [a] loss of control, in my view". [475] Dr Allnutt explained that the response of people with BPD who react, or overreact, to rejection is not "necessarily instantaneous" and "can occur over a period of time" as they can "brood" over it. [476] Dr Allnutt said that "generally" they overreact by harming themselves. [477] Dr Allnutt accepted that the people with "borderline personality [disorder] are vulnerable to impulsive action but people with borderline personality disorder can also plan." [478] 3. Dr Allnutt considered that the actions of the accused in stabbing himself might have involved a loss control: [479] "Well, I think that [his self harm] was an impulsive response to what had happened. I think that the entire incident would have been experienced by him as a very emotional experience and I would regard that as an act of impulse driven by emotional distress, feelings of guilt. I would see that. So that might be regarded as a loss of control, in my view, post offence." (emphasis added) 1. At this point, I note that this opinion is inconsistent with the finding I have made at [230]. I do not accept that the accused's self-harm was an "impulsive response" to what happened, if that is meant to suggest that the accused only decided to harm himself after he stabbed Ms Vize. 2. In relation to the second matter, Dr Allnutt emphasised the significance of providing opinions based on a (reliable) "account provided by the individual." [480] Dr Allnutt stated that the absence of an account meant that "one cannot test things and clarify things like the decision-making process or why people decide to do things at certain times or their exact emotional state at the material time". [481] To that end, Dr Allnutt speculated about various rationales that the accused might have adopted that would affect any determination of whether his actions involved a loss of control, including, for example, that the accused "intended to kill [Ms Vize] and then himself" and that "there was a plan to do that and that he had planned to do it in the home, because it's dramatic, there's an audience." [482] Dr Allnutt stated that these scenarios were "speculative, theoretical and, in the absence of a proper history from him and an account from him … it can go from an impulsive, momentary act where within a few minutes he decides to take the knife to something that he's planned over a period of time". [483] 3. Finally, I note that Dr Allnutt addressed the relevance, if any, of the accused's OCD to any impairment of his capacity to control himself. Dr Allnutt considered that people with OCD are "are very anxious about avoiding harm to themselves or others" [484] (as opposed to inflicting harm). Dr Allnutt stated that if the accused's "behaviour was driven by an underlying condition", it derives more from his personality [disorder] and depression than from OCD." [485] (B) Dr Richard Furst 1. Dr Furst conducted an assessment of the accused on 5 November 2015 and later produced a report dated 5 January 2016. [486] The history that Dr Furst took was consistent with the accused's evidence and the matters noted in [240] to [244], except that the accused told Dr Furst that his obsession with cleanliness commenced after the school counsellor who abused him ejaculated on his face. [487] 2. Dr Furst diagnosed the accused as suffering from OCD and BPD. Dr Furst stated that the accused "is probably best regarded as a mentally disordered offender, owing to his reported and observed mental state at the time of the offence". [488] The reference to the accused's "observed mental state" appears to be a reference to the observations of him being non-responsive at the scene. Dr Furst added that "his mental disorder probably resulted from his underlying borderline personality disorder and, to a lesser extent, from frustrations he was feeling about his chronic OCD and daily cleaning routines" [489] and that it was "likely he was emotionally disturbed about the deceased commencing a new relationship" and his sense of being rejected. [490] Dr Furst did not accept that the accused's capacity to understand events or judge right from wrong was affected by his condition. I address his evidence on those topics below. 3. However, Dr Furst concluded that the accused "was probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions" (ie BPD and OCD). [491] Dr Furst concluded that his "apparent lack of self control is consistent with his actions [in] stabbing himself in a life-threatening manner immediately after the alleged offence." [492] 4. Six matters should be noted about Dr Furst's evidence. 5. The first concerns the factual basis for Dr Furst's opinions. Dr Furst provided a written report dated 5 January 2016, [493] which he spoke to and amended in his evidence-in-chief. It was not clear from that report whether Dr Furst's opinion was based on an acceptance or rejection, in whole or in part, of the accused's personal history and account of the offence. However, in the course of giving evidence, Dr Furst explained that he placed "more weight on the descriptions in the [Crown] witness statements" that he was provided with, [494] and this extended to rejecting the accused's account of the offence and his breakup with Ms Vize. Dr Furst assumed the accused deliberately stabbed Ms Vize. [495] 6. Second, Dr Furst assumed or inferred that the accused was suicidal before he stabbed Ms Vize. [496] Dr Furst reached that conclusion based on the close proximity in time between the two stabbings and the statements the accused made to his family after he stabbed himself. Dr Furst suggested that the accused may have been suicidal for "at least several minutes" prior to stabbing Ms Vize. [497] This aspect of Dr Furst opinion is consistent with the finding at [230]. 7. Third, Dr Furst addressed the effect of the accused's OCD on his mental disorder and capacities at the time of the offence. Dr Furst was asked to nominate what impulse the accused could not control that led to the accused stabbing Ms Vize. [498] He did not nominate any such impulse. Instead, he identified "an overwhelming sense of rejection, abandonment and basically becoming disordered and losing it in that sense rather than the need for a control and contamination" arising from OCD as the operative condition. [499] However, Dr Furst also stated that the OCD "probably [gave the accused] a baseline level of dysfunction," [500] and that interacted with BPD and narcisstic traits in relation to interpersonal relationships. [501] Dr Furst stated that an "actual inference of how that disorder [ie OCD] and that part of that disorder [ie BPD] controls one behaviour and another disorder is probably going a little bit beyond what we can be certain about in psychiatry but we can talk about the likelihood of contribution of factors being relevant or not relevant". [502] To that end, he agreed that it was likely that both conditions were operating on the accused's mind on 22 July 2013. [503] In cross-examination, he was asked whether the accused was having difficulty with his OCD symptoms on 22 July 2013. [504] In response, Dr Furst referred to a history given by the accused of experiencing OCD symptoms in the two years prior to the offence and the statement of Mrs Quinn. [505] Later in his evidence Dr Furst nominated the accused's excessive number of telephone calls to Ms Vize as "probably related to the OCD that he has". [506] 8. Fourth, Dr Furst explained that BPD makes a person both more inclined to be jealous and fear abandonment, and affects the ability to temper or control their response to that fear. In cross-examination, it was suggested to Dr Furst that, if Ms Vize was deliberately stabbed, then the accused could have been motivated to act by jealousy. Dr Furst stated that, if that were the case, then it was not necessarily inconsistent with his capacity to control himself, being substantially impaired by BPD. [507] Dr Furst explained this as follows: [508] "So the jealousy and fear of rejection or abandonment, classic description, is an underlying tendency they have by virtue of their personality structure. But, if sufficiently stressed, they might tip over and go into crisis of generally self‑harming or cutting oneself or attempting suicide and getting into what we call a mentally disordered state under the Mental Health Act type description." [509] 1. Fifth, like Dr Allnutt, Dr Furst was questioned about the interplay and potential inconsistency between the accused planning to stab Ms Vize on the one hand and whether his ability to control himself was substantially impaired on the other. Dr Furst accepted that the taking of the knife by the accused from the kitchen indicated "a degree of planning" [510] but stated that a person can be in a "disordered state" for "several minutes or hours before or after an event" [511] such that it is "variable in terms of the degree of disorder, degree of planning and degree of loss of control". [512] 2. It seems unlikely that Dr Furst's reference to a "disordered state" equates to a state where the accused lacked the capacity to control his actions. At one point, I asked Dr Furst how long the lack of control he believed the accused experienced lasted. [513] He answered: [514] "A. Yes, I can't say exactly, but I would imagine, your Honour, it was most likely at least several minutes before the stabbing of Ms Vize or at least some period of time beforehand. Q. Wouldn't you need to know more about their interactions between each other that morning to be able to pick that type of period? A. There was ‑ I think I recall, your Honour, that they were in the kitchen area or drinking some juice or something, but yes, happy to be taken back to the sequence of the Crown statement and the facts as alleged, I just ‑ I'm just making my opinion based on the likely duration of how long that would be. Q. You weren't seizing on some particular interaction or event as precipitating the loss of control? A. Not ‑ the evidence I'm giving now, I'm not picking a particular event as the trigger point of when that control was lost, no, your Honour, I'm just speculating as to how likely or how long it may have been‑‑ Q. Referring backwards, as it were‑‑ A. Trying to think backwards and do a retrospective analysis of his mental state at the time." (emphasis added) 1. Later, Dr Furst was asked by the Crown: [515] "[h]ow does your understanding of control accommodate this idea that it may be planned? A. My guess, your Honour, I'm looking at control from a broader psychological or psychiatric perspective, perhaps, that once the accused made the decision to either kill himself or the victim and was in such a mental state that he decided that was the option for him and then carry through that action, I would regard that episode as being a sign of his mental disorder from the very beginning of his ‑ basically become suicidal and/or homicidal when arming himself, and whether he had one knife or two or three knives to do that job, I think you can't really draw too much inference as to what he was thinking at that point. He may have just wanted to make sure that he killed himself, for example." (emphasis added) 1. The first of these passages involves Dr Furst inferring back from the stabbing of Ms Vize that the accused experienced an impairment of his capacity to control himself "of at least several minutes". In the second passage, Dr Furst (implicitly) assumes that the accused formed the intention to kill Ms Vize and himself at the time he armed himself in the kitchen, rather than at some earlier time. Thus, each of these passages only deals with the accused's thoughts and actions from the time he grabbed a knife and leaves out any consideration of what occurred prior. In one sense this is understandable in that, while the events during that time have their mysteries, they are well documented. However, what is not documented or well-known is the accused's mental processes prior to his seizing the knife. If they were known, then an assessment could be made as to when the accused became "suicidal and/or homicidal" before he armed himself which in turn would, or at least could, affect any assessment of whether his capacity to control himself was impaired when he stabbed Ms Vize. 2. In another part of his evidence, Dr Furst was asked whether the arguments that the accused had with Ms Vize on the evenings of Saturday, 20 July 2013 and Sunday, 21 July 2013 and his viewing of the text message from Ms Vize to Mr Meyers were precipitating factors that led to the accused stabbing Ms Vize. [516] Dr Furst replied: [517] "they could have been the factors and that's still a reasonable possibility but, in my view, I would see these arguments and these constant phone calls and messages described in the brief as being evidence of him being in this unstable mental state for at least some days leading up to the event and that unstable mental state being a product of the disorders I mentioned earlier in evidence of his borderline personality disorder and his OCD." (emphasis added) 1. If the reference to an "unstable mental state" in this passage was to the accused being substantially impaired in his capacity to control himself then that would not be consistent with [265] and [266]. However, I understand it to be a reference to some form of heightened, mental agitation that made the accused more susceptible to a loss of control on the morning of 22 July 2013. 2. The sixth is the relevance of Thomas' evidence that the accused was non-responsive to screams and pleas on the morning of 22 July 2013. [518] Dr Furst considered that evidence to be "consistent with [the accused] being highly disturbed emotionally and in some type of abnormal state emotionally". [519] (C) Dr Olav Neilssen 1. Dr Neilssen interviewed the accused on 9 October 2013 and 12 December 2014. The detailed history that Dr Neilssen obtained from the accused and his version of the events of the morning of 22 July 2013 was generally consistent with his evidence and the matters noted in [240] to [243]. Only four additional points need to be mentioned. 2. First, the accused did not inform Dr Neilssen that he had been sexually abused by his school counsellor. [520] In contrast to what he told Dr Furst, the accused told Dr Neilssen that he first developed symptoms of OCD when he was "around the age of 11 … which he associated with watching a frightening scene in a movie." [521] 3. Second, the accused told Dr Neilssen that Ms Vize wanted to commit suicide and that she was "begging" him not to leave. [522] I reject that assertion. 4. Third, Dr Neilssen recorded the accused telling him that the incident at Wollongong in 2009 involved him having a fight with a friend and yelling at one of the staff members. [523] The accused stated that he received mandated counselling sessions from a psychologist and moved to the University of Sydney the following year. [524] 5. Fourth, Dr Neilssen recorded that the accused told him that he had been "thinking about committing suicide for some time prior to the offence and especially in the days before the offence itself." [525] 6. Dr Neilssen was provided with a substantial number of statements and reports, including from the psychiatrists who have treated the accused since the time of Ms Vize's death. Dr Neilssen also interviewed Mrs Quinn. Dr Neilssen diagnosed the accused as having "Obsessive Compulsive Disorder in remission and depressive illness," [526] although he later referred to the latter as a "mood disorder". [527] Dr Neilssen's diagnosis of depressive illness was based on the same behavioural traits that Dr Allnutt and Dr Furst relied on to diagnose the accused with BPD, namely, sudden fluctuations in mood, sudden severe depression in response to setbacks such as rejection as well as acute reactions to perceived rejection. [528] Dr Neilssen stated that he included those matters "under the rubric of depressive illness" because he considered that a diagnosis of BPD was "scientifically … just not a reliable enough diagnosis to present to Courts." [529] Dr Neilssen considered that BPD "only manifests itself when people are in crisis". [530] Nevertheless, Dr Neilssen accepted that it is a "very distressing and disabling condition" [531] and he was "happy to concede that [the accused] meets accepted diagnostic criteria for Borderline Personality Disorder". [532] 7. Dr Neilssen concluded that the accused had an abnormality of mind arising from an underlying condition, being his chronic OCD and mood disorder. [533] Dr Neilssen also concluded that the accused's capacity to understand events and judge whether his actions were right or wrong was substantially impaired by his abnormality of mind. [534] The basis for each of these two conclusions is addressed below. Dr Neilssen also concluded that the accused's capacity to control himself was substantially impaired by his abnormality of mind. [535] Dr Neilssen described the accused's impairments as "moderate to severe". [536] 8. Four matters should be noted about Dr Neilssen's conclusion concerning the accused's impaired capacity to control himself. 9. First, in cross-examination Dr Neilssen confirmed that in diagnosing the accused with OCD and a depressive illness he did not place much reliance on the accused's account, but instead there was "ample additional information to confirm the presence of those conditions". [537] 10. Second, Dr Neilssen described the mechanism by which the accused's capacity to control his actions was substantially impaired as follows: [538] "His combination of disorders are likely to have had a significant effect on his ability to control his actions. His severe mood swings producing states of severe depression and also anger, and also the impairment in impulse control that goes with Obsessive Compulsive Disorder in those situations, between the combination of the two are likely to have affected his capacity for self‑control and significantly affected his capacity for self‑control. … There's extreme sudden mood swings with irrational anger and severe depression that can be triggered by small events and appear completely disproportionate and so it is a loss of emotional control." [539] 1. Third, Dr Neilssen stated that the "emotional disturbance" involved in a loss of control "can last for sort of minutes, hours and days, you know, depending on the individual person and in the way they respond to setbacks, minor or major setbacks." [540] 2. Fourth, various question were put to Dr Neilssen concerning the level of planning involved in the stabbing of Ms Vize, which exposed the limits on the making of an assessment of the impairment of the accused's capacity to control his actions in the absence of a reliable narrative from him. In his evidence-in-chief, Dr Neilssen was asked whether, if the accused's account was rejected and instead there was a finding that the stabbing was deliberate, then "does the taking of the knife from the house suggest to you anything in terms of planning?" [541] Dr Neilssen responded: [542] "Well, if it's ‑ I'd have to ask Mr Quinn, actually. I can't really know what's in his mind at that time, other than, it does appear that he's armed himself either to stab himself or stab another person." (emphasis added) 1. Later Dr Neilssen was asked: [543] "Q. But the history of this man is that he considered killing himself the night before but didn't want to do it in the house with other people present. But then he gives a version of intending to kill himself the next day. Now, if you reject that completely as being a completely made up version, then the fact that he's put the knife in his pocket the next morning and then he's gone outside and stabbed Cherie Vize, that's indicative, is it not, not of a complete loss of control as indicated by a Borderline Personality Disorder, but it shows some planning; does it not? A. Well, again, it's over a short period of time without proper forethought or consideration of the consequences. I mean - - Q. But how do you know that? How do you know he didn't just consider this the previous night when he got up and he was thinking about, not so much about killing himself, but killing Cherie Vize? A. Look, I don't know that, again, that's really for Mr Quinn to ‑ he's the only one who really knows exactly what was going through his mind. But certainly, taken as a whole, it does appear to be an impulsive and extreme overreaction to perceived rejection by a person who has those psychiatric vulnerabilities. HIS HONOUR Q. Can I ask about that, doctor. If the killing of Ms Vize, on this hypothesis as deliberate, and the personal attempt at suicide was part of the one plan, and that had been in contemplation for a period of time, that would at least impact upon an assessment as to whether there was a loss of control, I take it? A. Yes, a degree to which there's been a loss of control according to a rational ‑ a calm and rational contemplation of the likely outcome." (emphasis added) (D) Abnormality of mind 1. I have already adverted to the difficulties in relation to the identification of the facts upon which the psychiatrists opined, especially in circumstances where I do not accept the evidence of the accused unless it is confirmed or corroborated by independent evidence. 2. In her comprehensive submissions, Ms Manuell SC sought to overcome this by pointing to the evidence of various prosecution witnesses, including the accused's family, as demonstrative of his state of mind both prior to and on 22 July 2013. I have already accepted much of that evidence, including that which was relied on by the three psychiatrists to make their diagnoses. Ms Manuell SC also referred to a mental health care plan prepared by the accused's GP, Dr Peter Allan, on 8 April 2008, [544] what was revealed concerning the accused's second suspension from the University of Wollongong in 2009, [545] and the telephone records relating to the accused. [546] Ultimately, each of the psychiatrists referred to material of this kind as supporting their diagnoses of the accused and conclusions that the accused had an abnormality of mind. I accept that the independent evidence does justify those conclusions, although the extent to which it supports a finding of a substantially impaired capacity is another matter. 3. Accordingly, I am satisfied on the balance of probabilities that, as at the time of the act that caused Ms Vize's death, the accused suffered from an "abnormality of mind arising from an underlying condition" [547] being a "pre-existing mental or physiological condition, other than a condition of a transitory kind", [548] namely, OCD and BPD. (E) Substantially impaired capacity to understand events 1. Both Dr Allnutt and Dr Furst did not accept that the accused's capacity to understand events was impaired. Dr Allnutt's opinion was that "his account" is not "consistent with a delusional belief" and that "while he might have misjudged his actions at the material time he had capacity to judge events." [549] 2. Dr Neilssen was the only one of the three psychiatrists who gave evidence after the accused. This allowed him the benefit of reviewing the transcript of the accused's evidence. Dr Neilssen was of the opinion that the accused's capacity to understand events was impaired because: [550] "… he's clearly got quite a distorted world view, which is evident perhaps in his evidence in the last couple of days, and I believe that was in operation at the time and also his – the effect of his severe mood swings would also alter his perception of events." (emphasis added) 1. Dr Neilssen nominated the accused's apparent belief that Ms Vize was a threat to herself as one matter supporting his opinion that the accused's capacity to understand events was substantially impaired. [551] 2. I do not accept these opinions of Dr Neilssen because I do not accept that it has been established on the balance of probabilities that, at the time he stabbed Ms Vize, the accused's "world view" was distorted. I understand this "world view" to be a reference to so much of the accused's evidence in which he stated that he ended the relationship with Ms Vize, that she wanted to get back together and that he saw his suicide as the only way in which Ms Vize would accept their relationship was over. [552] I accept that any such view, if it were held, was distorted. However, it follows from my earlier findings that I do not accept that the accused had that view at the time he stabbed Ms Vize. In particular, I do not accept that the accused believed that Ms Vize was a danger to herself at the time he stabbed her. 3. In his evidence, Dr Neilssen was also asked: [553] "Q. Doctor, what events of that morning was he distorted about? A. Well, the perception of rejection, which may have been real, but the way he's viewed it, the effect of his behaviour on the likely consequences of his behaviour, how it might affect his family and other people who might have witnessed what's going on, of course, how it might affect Ms Vize, that he's somehow ‑ that somehow that he should kill her, that she wanted to die, perhaps, that‑‑ Q. Sorry, just going back. Where is there evidence that he had a distorted view that killing himself wouldn't, in the front yard, wouldn't have caused distress to his family? A. Well it's more in the effect of his behaviour, the fact that he's set out to do it, without considering the full consequences of it. If he'd been able to calmly reflect on the possible consequences, he might reconsider his behaviour. But in his frame of mind at the time it seemed the right thing to do; I would call that a distortion of reality." (emphasis added) 1. These answers were predicated on an acceptance that, as at 22 July 2013, the accused correctly perceived he was being rejected by Ms Vize. That approach accords with my findings. However, the balance of the answer reverts to either making assumptions or drawing inferences about the accused's mental state that are not established on the balance of probabilities. In particular, I do not accept that as at 22 July 2013 the accused believed that Ms Vize wanted to die. There is no independent evidence that Ms Vize, in fact, wanted to die or harm herself and there is no independent evidence that as at 22 July 2013 the accused believed she wanted to die or harm herself. 2. Similarly, there is no evidence that the accused set out to kill Ms Vize and then himself "without considering the full consequences" of his behaviour. I have found that he intended to kill Ms Vize and he intended to kill himself. There is evidence that he had ruminated on killing himself for some time. It is plausible that the accused adverted to the distress his actions would cause others but was indifferent to it. The contrary has not been shown. In the end result, there is no satisfactory evidentiary material capable of demonstrating that as at 22 July 2013, the accused's "capacity to understand events" was impaired, let alone less substantially impaired. 3. I am not satisfied on the balance of probabilities that as at 22 July 2013 or beforehand the accused's capacity to understand events was substantially impaired. (F) Substantially impaired capacity to Judge whether his actions were right or wrong 1. Dr Allnutt did not accept that borderline personality traits or depression "impairs a person's capacity to know right from wrong". [554] Dr Allnutt considered that the accused's infliction of self-harm after the deceased was stabbed was a reaction of "guilt, that he had done the wrong thing." [555] 2. Dr Furst was referred to an opinion expressed by Dr Neilssen that the accused's impaired capacity to know right from wrong derives support from his preparedness to harm himself in the presence of his mother and brother. He was asked: [556] "… do you see that that particular factor impacts on Mr Quinn's capacity to judge right from wrong on the day of the incident? A. I think that I would probably have a different interpretation or a different grade, if you like, of judging right from wrong, so I tend to see judging right from wrong as being driven by some moral justification or delusional thinking, for example, that the victim is possessed by a demon and it's right to kill the victim. That would be a clear example where one can't judge from right from wrong. Once you get into someone being mentally disordered and suicidal, suicide is wrong clearly in a moral sense and by community standards and it may be that his capacity to judge right from wrong is impaired that way but I wouldn't necessarily reach that threshold from my understanding of judging right from wrong. Others might, it's really up to the individual as to how they assess that." (emphasis added) 1. Although this answer refers to the accused only being suicidal, the question posed was predicated on an assumption that the accused deliberately stabbed Ms Vize. 2. As stated, Dr Neilssen was of the opinion that the accused was substantially impaired in his capacity to judge right from wrong. His reasons for that conclusion emerge from the following exchange: [557] "Q. If I could take you please to ability to judge right from wrong. And I appreciate there might well be an overlap in your view relating to the respective capacities in 23(A)(1), but do you have anything to say specifically about an impairment he may have suffered to his ability to judge right from wrong? A. Yes. Well, again, from his point of view at the time, his behaviour was the right thing to do, and that demonstrates an impairment in his ability to judge right from wrong. Q. But you understand that people deliberately commit offences such as murder? A. Of course. Q. And that does not necessarily mean that they are substantially impaired in their ability to know right from wrong? A. Yes. Q. So how do you see the difference here? A. Well, I mean, from the point of view of a person who has no regard for their own safety and for their own life and that he's already spoken about wanting to kill himself himself, from that point of view, he wouldn't care perhaps about the consequences of his actions because he doesn't care about his own safety, and in that sense, his ability to judge right from wrong is impaired from his point of view." (emphasis added) 1. This extract again highlights the difficulty in determining what version of the events the psychiatrists, in this case, Dr Neilssen, were opining upon. The last answer suggests that Dr Neilssen was directing his attention to the accused's act of stabbing himself. However, the issue presented by this part of s 23A(1)(a) of the Crimes Act concerns the accused's capacity to judge whether his actions in deliberately stabbing Ms Vize were right or wrong. Section 23A(1)(a) refers to the impairment existing "at the time of the acts or omissions causing the death concerned". Given the proximity in time between the accused's action in stabbing himself and stabbing Ms Vize, it follows that an impaired ability to judge whether stabbing himself was right or wrong might throw some light upon whether his capacity to judge whether stabbing Ms Vize was right or wrong was impaired, but it is far from determinative. The fact that the accused may have showed no regard for his own safety in stabbing himself may or may not mean that he thought harming himself was capable of being morally justified. He might have thought he deserved it. He might have known that stabbing himself was wrong but did not care. However, except perhaps in the respect identified by Dr Allnutt in [295], none of this says much in this case about whether the accused's ability to judge whether deliberately stabbing Ms Vize was right or wrong was impaired. In terms of an assessment of what is right and wrong, there is a qualitative difference between harming yourself and harming others. 2. The emphasised portions of the extracts in [296] and [298] highlight the significance of assessing an individual's thought process to determine if their capacity to judge whether their actions were right or wrong was impaired. However, there is no evidence from either the accused or any other source capable of suggesting that his capacity in that respect was impaired. 3. As for Dr Allnutt's opinion, noted in [295], it follows from the findings in [230] that I do not accept that the accused stabbed himself as a consequence of feeling guilty about stabbing Ms Vize. I have already found that as he walked to the front yard he had decided to kill her and then himself. It may be that his decision to stab himself after killing Ms Vize was made in the knowledge that he could not live knowing that he ended her life. However, in the absence of any evidence from the accused to that effect, that is pure speculation and can be put aside. Even if it were correct, it would not reveal an impairment of the accused's capacity to judge whether his actions in stabbing Ms Vize were right or wrong. 4. I am not satisfied on the balance of probabilities that as at 22 July 2013, the accused's capacity to judge whether his actions were right or wrong was substantially impaired. (G) Substantially impaired capacity to control himself 1. The last capacity to consider is the accused's capacity to control himself. I have summarised the evidence of each of Drs Allnutt, Furst and Neilssen on that topic at [249] to [255], [258] to [270] and [277] to [283] respectively. 2. I do not consider that the accused's OCD made any significant or substantial contribution to any loss of control on his part at the time he stabbed Ms Vize. There is no evidence that his actions in stabbing her arose from his giving effect to any impulse or from frustration from being prevented from carrying out any such impulse. Further, there is no evidence that his actions were connected to any intrusive thought that weighed upon him. The only suggested connection between his OCD and his conduct towards Ms Vize was his evidence that he had some "ritual" or compulsion related to his OCD to contact her in the morning or at night that replaced his compulsion to clean or turn light switches off. I do not accept that his killing Ms Vize involved him giving effect to any impulse relating to his OCD. Although he was emotionally dependent on Ms Vize, there is insufficient evidence to suggest that she was part of the focus of his OCD. 3. I accept, as Dr Furst stated, that the accused's OCD was a contributor to a level of dysfunction and agitation on his part. [558] However, given that none of those close to him were observing any significant amount of compulsive behaviours in the weeks prior to Ms Vize's death, I am not persuaded that it made much of a contribution to any such level of dysfunction at the time of, and leading up to, the stabbing. 4. As stated, I accept the diagnosis that the accused was affected by BPD. During a period when a relationship is ending or under strain, the accused's BPD had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses. I have found that the accused was distressed about the breakup with Ms Vize and was refusing to accept that it would occur. He was emotionally dependent on Ms Vize and was desperate to contact and be with her. On the two previous nights they had argued. In those circumstances, I accept that the accused may have been "unstable" in the immediate period prior to the stabbing in the sense stated by Dr Furst at [268] and accordingly vulnerable to an impairment of his self-control. However, has a substantial impairment of his capacity to control himself at the time he stabbed Ms Vize been demonstrated on the balance of probabilities? 5. I have discussed the concept of control at [28] to [31]. While there is not necessarily an inconsistency between planning to kill someone and possessing a substantially impaired capacity for self-control, I accept the approach stated by Dr Allnutt, namely, that the "more planning is involved the less likely" it will involve a loss of control. Applying a "common sense" approach, [559] a spontaneous, random killing is more likely to be the product of an impaired capacity for self-control than a planned killing. In fact, the greater the level of planning and the longer the period between the formation of the plan and its implementation, the more likely it is that the accused "did not resist his impulse" as opposed to "could not resist his impulse." [560] 6. There is no reliable direct evidence of the accused's thought processes from the evening before Ms Vize's death to the time he stabbed himself. At best, they can only be determined by drawing inferences from what has been demonstrated about his mental state generally, from the apparently calm period from when he woke up until he when he seized the knife and his violent actions thereafter. It is not clear how long the former period was, but the latter lasted no longer than 4 to 5 minutes. 7. From those actions it can be deduced that the killing involved some elements of planning, namely, the seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer a fatal would and the plan to kill himself. Of itself, that level of planning is not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control. However, what is not known is his thoughts and actions prior to his seizing the knife. 8. The analysis of the psychiatrists' evidence set out above highlights the significance in this case of obtaining some form of reliable narrative from the accused as to when he formed the intention to kill Ms Vize and what steps he took to give effect to it. Dr Allnutt stated that it required a "forensic analysis of the behaviours that he engaged in in the time leading" up to the stabbing. [561] When he was asked about the significance of the accused seizing the knife and the possibility that he formed an intention to kill Ms Vize the night before, Dr Neilssen understandably said that he could not "really know what's in [the accused's] mind" and "he's the only one who really knows exactly what was going through his mind" respectively. [562] 9. Further, for the reasons explained at [267], Dr Furst's approach assumed or inferred that the accused became "suicidal and/or homicidal when arming himself". However, in the absence of a reliable narrative from the accused, especially one that describes when he formed the intention to kill and what steps he took to give effect to that intention, why should it be assumed or inferred that the accused did not form a suicidal or homicidal intention before he seized the knife? Did the accused decide to kill Ms Vize in the days before but plan to do it at his home when his family were present? What was the accused thinking during the period from when he woke up to when he armed himself? Was he steeling himself to carry out a plan he had already formed or was he ruminating over his rejection and losing his capacity to control himself? None of these questions can be addressed yet each are of potential significance to an assessment of whether his capacity to control himself was impaired and, if so, whether any such impairment was substantial. 10. In the absence of a reliable narrative from the accused, I am not persuaded on the balance of probabilities that at the time he stabbed Ms Vize the accused's capacity to control himself was substantially impaired. 11. It follows that the accused has failed to satisfy s 23A(1)(a) and his defence of substantial impairment fails. (H) Section 23A(1)(b) of the Crimes Act 1. Section 23A(1)(b) requires the Court to consider whether the "impairment was so substantial" as to warrant a reduction in the accused's criminal culpability. This involves a "value judgment". [563] Given that I am not satisfied that the impairment was substantial it is neither necessary nor possible to make any finding in respect of this provision. (8) Conclusion 1. It follows that I am obliged to find the accused guilty of murder. A verdict to that effect will be entered on the indictment. 2. I will fix the matter for submissions on sentence on 14 October 2016. If that date is not suitable to the parties then they should approach my Associate to obtain a further date. 3. Accordingly: 1. The Court finds the accused guilty of murder; 2. The accused is convicted of murder; 3. The Court directs that the proceedings standover for submissions on sentence on Friday, 14 October 2016 at 10.00am. ********** Endnotes 1. Haoui v Regina (2008) 118 A Crim R 331; [2008] NSWCCA 209 at [129] per Beazley JA and [160] per Johnson J with whom McCallum J agreed at [168] 2. Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 3. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ("Shepherd"); R v Hillier (2007) 228 CLR 618; [2007] HCA 13 ("Hillier") at [46]; The Queen v Baden-Clay [2016] HCA 35 ("Baden-Clay")at [47] 4. Hillier at [46] 5. Hillier at [48]; Baden-Clay at [47] 6. Shepherd 7. Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at [104]; Baden-Clay at [46] 8. Crown written submissions at [44] to [50] 9. Edwards v The Queen (1993) 178 CLR 193 at 210; [1993] HCA 63 ("Edwards") 10. Edwards at 210 11. Edwards at 211 12. Edwards at 211 13. Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 14. R v Murphy (1985) 4 NSWLR 42 at 53 - 54; Evidence Act; s 110 15. By the Crimes Amendment (Diminished Responsibility) Act 1997, No 106 of 1997 16. In her detailed submissions on this provision, Senior Counsel for the accused, Ms Manuell SC, cited R v Majdalawi (2000) 113 A Crim R 241; [2000] NSWCCA 240 (per Spigelman CJ at [10], Newman and Adams JJ agreeing); R v Maric [2009] NSWSC 346, per Harrison J (at [36]); Potts v R [2012] NSWCCA 229 (per Johnson J at [31], McClellan CJ at CL and Fullerton J agreeing); R v Kaewklom (No. 1) [2012] NSWSC 1103, per Johnson J. 17. See R v Trotter (1993) 35 NSWLR 428 at 431 ("Trotter") 18. See for example R v Cheatham [2002] NSWCCA 360 ("Cheatham") at [73] 19. Trotter at 431 20. Byrne at 402 21. Byrne at 402 to 403 22. Trotter at 430 to 431 23. Byrne at 404 24. Cheatham at [111] 25. Trotter at 431 26. Transcript at p 541 27. Exhibit H 28. Exhibit A – photograph 8; see [94] 29. see R v Quinn (No 1) [2016] NSWSC 1101 30. Exhibit B 31. Exhibit KK 32. Exhibit KK 33. Exhibit KK 34. Exhibit B at p 1.1 35. Exhibit B at p 2 36. Exhibit B at p 2 37. Exhibit KK, statement dated 22 July 2013 at [4] 38. Exhibit KK, statement dated 22 July 2013 at [5] 39. Exhibit KK, statement dated 22 July 2013 at [7] 40. Exhibit KK, statement dated 22 July 2013 at [7] 41. Exhibit KK, statement dated 22 July 2013 at [8] 42. Exhibit KK, statement dated 22 July 2013 at [11] 43. Exhibit KK, statement dated 22 July 2013 at [12] - [13] 44. Exhibit KK, statement dated 22 July 2013 at [13] 45. Exhibit KK, statement dated 22 July 2013 at [15] 46. Exhibit KK, statement dated 22 July 2013 at [15] 47. Exhibit KK, statement 22 July 2013 at [16] 48. Exhibit KK, statement 22 July 2013 at [18] 49. Exhibit KK, statement 22 July 2013 at [21] 50. Exhibit KK, statement 22 July 2013 at [21] 51. Exhibit KK, statement 22 July 2013 at [22] 52. Exhibit KK, statement 22 July 2013 at [22] 53. Exhibit KK, statement 22 July 2013 at [22] 54. Exhibit KK, statement 22 July 2013 at [24] 55. Exhibit KK, statement 22 July 2013 at [24] 56. Exhibit KK, statement 22 July 2013 at [23] 57. Exhibit KK, statement 22 July 2013 at [23] 58. at [194] to [203] 59. Exhibit C 60. Exhibit C at 9.1 61. Exhibit C at 9.5 62. Exhibit C at 10 63. Exhibit C at 10.1 64. Exhibit C at 10 65. Exhibit C at 24 - Being the knife depicted in Exhibit A at photographs 59 and 61 66. Exhibit A – photograph X0000102859 67. Exhibit C at 24 68. Exhibit C at 13 69. Exhibit C at 14.8 70. Exhibit C at 14 71. Exhibit C at 15.2 72. Exhibit C at 15.6 73. Exhibit KK transcript 27/10/2014 at p 35.39 74. Exhibit KK transcript 27/10/2014 at T35.50 75. Exhibit KK transcript 27/10/2014 at p 36.5 76. See [43] 77. Exhibit KK transcript 27/10/2014 at p 45.46 78. Exhibit KK transcript 27/10/2014 at p 57.14 79. Exhibit KK transcript 27/10/2014 at p 68.45 80. Exhibit KK transcript 27/10/2014 at p 66.7 81. Exhibit KK transcript 27/10/2014 at p 36.29 82. Exhibit KK transcript 27/10/2014 at p 59.42 83. Exhibit KK transcript 27/10/2014 at p 47.34 84. Exhibit KK transcript 27/10/2014 at p 66.36 85. Exhibit B 86. Exhibit B at 1 87. Exhibit B at 1 88. Exhibit B at 2 89. Exhibit D at 2.7 90. Exhibit D at 3.1 91. Exhibit D at 3.6 92. Exhibit D at p 4.2 93. Exhibit D at p 4.7 94. Exhibit D pp 4 - 5 95. Exhibit D at p 6.3 96. Exhibit D at p 7.6 97. Exhibit D at p 8.2 98. Exhibit D at p 8.2 99. Exhibit C at 8.3 100. Exhibit D at p 8 101. Exhibit D at p 9.6 102. Exhibit D at p 11.3 103. Exhibit D at p 11.3 104. Exhibit D at p 11.5 105. Exhibit D at pp 17.18 106. Exhibit D at p 18.7 107. Exhibit D at p 19 108. Transcript at p 107.40 109. Transcript at p 108.38 110. Transcript at p 109.45 111. Transcript at p 109.2 112. Transcript at p 110.15 113. Transcript at p 110.20 114. Transcript at p 115.39 115. Transcript at p 115.20 116. Transcript at p 115.39 117. Transcript at p 116 118. Transcript at p 116.29 119. Transcript at p 117.10 120. Transcript at p 118.45 121. Transcript at p 119.19 122. Transcript at p 121.39 123. Transcript at p 122.1 124. Transcript at p 119.40 125. Transcript at p 120.31 126. Transcript at p 122.25 – 40 127. Transcript at p 122 – 124 128. Transcript at p 124.38 129. Transcript 10/08/2016 at p 128 130. Transcript at p 129.8 131. Transcript at p 130.30 132. Transcript at p 134.50 133. Exhibit I 134. Transcript at p 132.7 135. Exhibit I at 3.5; Transcript at p 132.20 136. Transcript at p 133.26 137. Transcript at p 133.28 138. Transcript at p 133.37 139. Transcript at p 134.1 140. Transcript at p 134.15 141. Transcript at p 134 142. Not in transcript but can be heard on recording that is part of Exhibit I 143. Not in transcript but can be heard on recording that is part of Exhibit I 144. Not in transcript but can be heard on recording that is part of Exhibit I 145. Not in transcript but can be heard on recording that is part of Exhibit I 146. Not in transcript but can be heard on recording that is part of Exhibit I 147. Not in transcript but can be heard on recording that is part of Exhibit I 148. Exhibit I at 5.3 149. Exhibit LL 150. Exhibit LL at [13] 151. Exhibit LL at [13] 152. Exhibit LL at [15] 153. Exhibit LL at [23] – [24] 154. Exhibit LL at [29] 155. Exhibit LL at [34] 156. Exhibit S at [8] 157. Exhibit T at [8] 158. Exhibit N at [13] 159. Exhibit N at [16] 160. Exhibit G; Exhibit O (knife); Exhibit F – other knives from block; Exhibit A – photograph of knife removed from POI; Transcript at p 67.48] 161. Exhibit L at [9] 162. Exhibit K at p 3.6 163. Exhibit L at [10]). 164. Transcript at p 95.15 165. Transcript at p 94.41 166. Transcript at p 96.20 167. Transcript at p 98.1 168. Transcript at p 100.30 169. See [100] to [114] 170. See [101] to [102] 171. Exhibit Y 172. Exhibit A 173. Exhibit A photographs 8 and 9 174. Exhibit A photograph 11 175. Exhibit A photograph 15 176. Exhibit A photograph 9 177. Transcript at p 10 178. Exhibit A photographs 10, 59 and 60 179. Exhibit A photograph 61 180. Transcript at p 71.38 181. Transcript at p 71.38 182. Transcript at p 71.45 183. Exhibit A photograph 21-24; Transcript at p 11.46 184. Transcript at p 66.30 185. see [157ff]); Transcript at p 45 186. Transcript at p 518.1 187. Transcript at p 518.13 188. Transcript at p 214.40 189. Transcript at p 198.19 and Exhibit GG at p.50 190. Transcript at p 210.15 191. Transcript at p 197.35 192. Transcript at p 197.45 193. Transcript at p 197.46 194. Transcript at p 197.47 195. Transcript at p 198.4 196. Transcript at p 198.11 197. Transcript at p 198.10; T199.43 198. Transcript at p 200.33 199. Transcript at p 198.43 200. Exhibit GG a p1 and p5 201. Transcript at p 201.12 202. Exhibit II at p 5 203. Transcript at p 201.50 204. Transcript at p 201.35 – 202. 25; Wound "A2" in Exhibit GG at p 5 205. Transcript at p 202.32-41 206. Transcript at p 203.3 207. Transcript at p 203.13 208. Transcript at p 204.31 209. Transcript at p 204.34 210. Transcript at p 205.3 211. Transcript at p 205.11 212. Transcript at p 205.25 213. Exhibit GG at p 1 214. Transcript at p 206.10; Ex A at photographs 50 and 51 215. Transcript at p 206.19 216. Transcript at p 206.31 217. Transcript at p 206.43; Exhibit GG at page 6 218. Transcript at p 207.6; Exhibit GG at page 6 219. Transcript at p 207.12; Exhibit GG at page 6 220. Transcript at p 207.22 221. Transcript at p 207.35; Exhibit GG at page 6 222. Transcript at p 207.48 – 208.10 223. Transcript at p 209.25 224. Transcript at p 209.17 225. Transcript at p 212.38 226. Transcript at p 214.21 227. Transcript at p 214.25 228. Transcript at p 214.33 229. Transcript at pp 215 to 216 230. Transcript at p 219 231. Transcript at p 219.15 232. Transcript at p 219.22 233. Transcript at p 219.42 234. Transcript at p 226.7 235. Transcript at p 221.46 236. Transcript at p 222.5 237. Transcript at p 222.6; Transcript at p 221.20 238. Transcript at p 227.21 239. Transcript at p 228.48 240. Transcript at p 229.20 241. Transcript at p 229.30 242. Transcript at p 223.24 243. Transcript at p 223.44 244. Transcript at p 222.41 245. Transcript at p 222.39 246. Transcript at p 223.2 247. Transcript at p 223.7 248. Transcript at p 224.47 249. Transcript at p 225.14 250. Transcript at p 225.25 251. see [43] 252. see [94] 253. see [101] 254. see [65] 255. see [57] 256. see [43] and [50] to [51] 257. see [50] 258. see [42] and [53] 259. see [42] 260. see [156] 261. see [96] 262. see [78] 263. Transcript at p 145 264. Transcript at p 152.40 265. Transcript at p 146.10 266. Transcript at p 147.45 267. Transcript at p 148.15 268. Transcript at p 149.15 269. Transcript at p 149.20 270. Transcript at p 149.40 271. Transcript at p 150.34 272. Transcript at p 150.39 273. Transcript at p 151.5 274. Transcript at p 151.9 275. Transcript at p 151.10 276. Transcript at p 151.18 277. Transcript at p 151.25 278. Transcript at p 152.8 279. Transcript at p 152.30 280. Transcript at p 157 281. Transcript at p 155.5 282. Transcript at p 160.20 283. Transcript at p 163.20 284. Transcript at p 181.45 285. Transcript at p 166.4 286. Transcript at p 187 287. Transcript at p 180.49 288. Transcript at p 180-181 289. Transcript at p 171.44 290. Transcript at p 171.45 291. Transcript at p 172.19 292. Transcript at p 173.9 293. Transcript at p 173.38 294. Transcript at p 173.33 295. Transcript at p 173.41 296. Transcript at p 175.3 297. Transcript at p 186.9 298. Transcript at p 230.14 299. Transcript at p 230.43 300. Transcript at p 234.3 301. Transcript at p 234.13 302. Transcript at p 234.15 303. Transcript at p 234.30 304. Transcript at p 234.44 305. Transcript at p 235.11 306. Transcript at p 235.39 307. Transcript at p 236.40 308. Transcript at p 242.24 309. Transcript at p 246.9 310. Transcript at p 249 311. Transcript at p 249.50 312. Transcript at p 250 313. Transcript at p 251.15 314. Exhibit CC 315. see [147] 316. Transcript at p 140.8 317. Transcript at p 515 318. Exhibit V 319. Exhibit CC 320. Exhibit V 321. Exhibit V – entry 17/07/2013 322. Transcript at p 79; see Exhibit FF 323. Exhibits W, DD and EE 324. Transcript at p 88; transcript at p 141 325. Exhibit FF at page 2; Transcript at p 194 326. Transcript at p 516.34 327. Exhibit MM 328. see [42] 329. see [154] 330. see [146] and [153] 331. see [139] 332. 17 August 2016, 19 August 2016, 23 August 2016 and 24 August 2016 333. Transcript at p 350 334. Transcript at p 350 335. Transcript at p 350 336. Transcript at p 359.18 337. Transcript at p 359.21 338. Transcript at pp 345 to 346; p 365 339. Transcript at p 348.13 340. Transcript at p 348.50 341. Transcript at p 354.25; see [271] 342. Exhibit 3 343. Transcript at pp 356.49 to 358 344. Transcript at p 360.30 345. Transcript at p 360.34 346. Transcript at p 361.5 347. Transcript at p 361.13 348. Transcript at p 361.27 349. Transcript at p 359 350. Transcript at p 360.2 351. Transcript at p 361 352. Transcript at p 362 353. Transcript at p 362.32 354. Transcript at pp 366 to 367 355. Transcript (corrected) at p 366.1 356. Transcript at p 366.40-45 357. Transcript at p 370.50 358. Transcript at p 372.35 359. Transcript at pp 371 to 372 360. Transcript at pp 376 to 380 361. Transcript at p 382.19 362. Transcript at p 384.29 363. Transcript at p 385.33 364. Transcript at p 385.44 365. Transcript at p 386.49 366. Transcript at p 386.50 367. Transcript at p 420.35 368. see [157] to [162] 369. Transcript at pp 392.40, 396.36, 393.11 and p 396.1 370. Transcript at p 392.7 371. Transcript at p 393.46, p 395.15 372. Transcript at p 395.11 373. Transcript at p 464.1 374. Transcript at p 411.26 375. see [139] 376. Transcript at p 415 377. Transcript at p 415 378. Transcript at p 416 379. Transcript at p 417 380. Transcript at p 417.41 381. Transcript at p 418.14 382. Transcript at p 420.18 383. Transcript at p 420.25 384. Transcript at p 420.45 385. Transcript at p 421.10 386. Transcript at p 421.23 387. Transcript at p 421 388. Transcript at p 422.3 389. Transcript at p 423.14 390. Transcript at p 423.50 391. Transcript at p 424.6 392. Transcript at p 424 to 425 393. Transcript at p 426.1 394. Transcript at p 426.33 395. Transcript at p 426.41 396. Transcript at p 427.3 397. Transcript at p 427.8 398. Transcript at p 427 399. Transcript at pp 427.34 to 428.41 400. Transcript at p 429.28 401. Transcript at p 430.18 402. Transcript at p 430.28 403. Transcript at p 430.39 404. Transcript at p 431.6 405. Transcript at p 440.11; p 441.15 406. Transcript at p 432.37 407. Transcript at p 431.35 408. Transcript at p 433.1 409. Transcript at p 432.4 410. Transcript at p 435.20 411. Transcript at p 435.33 412. Transcript at p 354.43 413. Transcript at p 355.20 414. Transcript at p 355.28 415. Transcript at p 359.6 416. Transcript at p 359.8 417. Transcript at p 401.6 418. Transcript at p 401.31-49 419. Transcript at p 403.1 420. Transcript at p 403.24 421. Transcript at p 401.37 422. Transcript at p 453.31 423. Transcript at p 402.32 424. Transcript at p 404.12 425. Transcript at p 449.29 426. Transcript at p 450.6 427. Transcript at p 451 428. Transcript at p 454 429. Transcript at p 455; 456 430. Transcript at p 385.31 431. Transcript at p 442.11 432. see [119] 433. see [95] 434. see [62] and [67] 435. see [75] 436. see [82] 437. see [43] 438. see [82] 439. see [50] 440. see [46] 441. see [63] 442. see [68] 443. see [89] 444. see [187] to [188] 445. see [119] 446. see [118] 447. see [192] 448. see [168] to [169(i)] 449. see [91] 450. see [100] 451. Which commenced on 13 June 2014 452. Transcript at p 319.21 453. Transcript at p 287.33 454. Transcript at p 319.26 455. Transcript at p 320.4 456. Transcript at p 320.16 457. Transcript at p 320.21 458. Transcript at p 320.49 459. Transcript at p 274; p 319 and p 499 460. Transcript at pp 271 to 272 461. Transcript at p 262.26 462. Transcript at p 264.12 463. Transcript at p 265.42 464. Transcript at p 266.14 465. Transcript at p 268.5 466. Transcript at p 276.32 467. Transcript at p 276.38 468. Transcript at p 278.31 469. Transcript at p 278.34 470. Transcript at p 290 471. Transcript at p 291.3 472. Transcript at p 279.19 473. Transcript at p 279.25 474. Transcript at p 279.32 475. Transcript at p 280.21 476. Transcript at p 280.2-10 477. Transcript at p 280.3 478. Transcript at p 280.41 479. Transcript at p 280.27 480. Transcript at p 282.43 481. Transcript at p 282.48 482. Transcript at p 283.40 483. Transcript at p 284.9 484. Transcript at p 281.9 485. Transcript at p 281.10 486. Exhibit 1 487. Transcript at p 303.26 488. Transcript at p 323.30 489. Transcript at p 323.32 490. Transcript at p 323.38 491. Transcript at p 324.15 492. Transcript at p 324.18 493. Exhibit 1 494. Transcript at p 308.21 495. Transcript at p 316.21 496. Transcript at p 316.10 497. Transcript at p 316.31 498. Transcript at p 325.20 499. Transcript at p 325.26 500. Transcript at p 325.32 501. Transcript at p 325.36 502. Transcript at p 326.5 503. Transcript at p 326.13 504. Transcript at p 330.18 505. Transcript at p 330.20 and p 330.33 506. Transcript at p 333.8 507. Transcript at p 331 508. Transcript at p 331.35 509. Transcript at p 331 510. Transcript at p 332.5 511. Transcript at p 332.15 512. Transcript at p 332.16 513. Transcript at p 333.21 514. Transcript at p 333.26 515. Transcript at p 337.42 516. Transcript at p 336.3 517. Transcript at p 336.7 518. see [64] and [68] to [69] 519. Transcript at p 340.14 520. Transcript at p 488.27 521. Transcript at p 489.14 522. Transcript at p 483.14 523. Transcript at p 489.37 524. Transcript at p 489.39 525. Transcript at p 490.13 526. Transcript at p 497.24 527. Transcript at p 502.1 and p 502.50 528. Transcript at p 498.1 to 8 529. Transcript at p 498.9 530. Transcript at p 498.31 531. Transcript at p 498.41 532. Transcript at p 511.37 533. Transcript at p 502.50 534. Transcript at p 503 to 504 535. Transcript at p 505.6 536. Transcript at p 506.18 537. Transcript at p 508.25 538. Transcript at p 505.15 539. Transcript at p 511.43 540. Transcript at p 512.13 541. Transcript at p 505.28 542. Transcript at p 505.30 543. Transcript at p 512.28 544. Exhibit 2 545. Exhibit NN 546. Exhibits V, W, EE and MM 547. Crimes Act; s 23A(1)(a) 548. Crimes Act; s 23A(8) 549. Transcript at p 276.49; p 279.23 550. Transcript at p 503.12 551. Transcript at pp 503 - 504 552. Transcript at p 421 553. Transcript at p 504.12 554. Transcript at p 279.27 555. Transcript at p 272.29 556. Transcript at p 327.4 557. Transcript at pp 504 to 505 558. see [262] 559. see [30] 560. Byrne at 404; see [30] 561. see [249] 562. see [289] to [283] 563. Trotter at 431 Amendments 08 September 2016 - minor typographical errors 29 November 2016 - [304] typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2016