The Queen v Cannon[1997] QCA 334

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 171 of 1997

Brisbane

[R. v. Cannon]

THE QUEEN

v.

ERROL JEFFREY CANNON

Appellant

Macrossan CJ

Pincus JA

Byrne J

Judgment delivered 26 September 1997

Joint reasons for judgment of the Chief Justice and Byrne J; separate reasons of Pincus JA concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

JOINT REASONS FOR JUDGMENT - THE CHIEF JUSTICE AND BYRNE J

Judgment delivered 26 September 1997

This appeal against a conviction for murder raises the question whether it was open to the jury to reject a defence of diminished responsibility.

Shortly before 2.30 a.m. on 2 November 1995, at a house on Palm Island occupied by the Wilson family, Freddie Bramwell was stabbed once through the heart as he slept. A blood-stained knife was found on the floor of the room. A neighbour saw the appellant flee the scene.

The appellant declined to participate in an interview when approached by the police that day. Forty-eight days later, he went to the local police station. There, in a recorded interview, he confessed to the killing. He spoke of walking into the house when all were asleep, taking a butcher's knife from the kitchen sink, and going to the bedroom where he expected to find his victim.  There was, he asserted, sufficient light to see that the person lying asleep in the bed was Freddie Bramwell. He stabbed his victim in the chest. He gave a reason for the stabbing: a couple of weeks earlier he had heard a rumour that Freddie Bramwell and his brother, Ray, had "molested" the appellant while he was asleep.

On the night of the killing, the appellant had been one of a group of men drinking and playing darts on the front porch of the Wilson house. A fight broke out between Ray Bramwell and the appellant. Freddie helped to break it up. According to Ray, he was threatened by the appellant after his brother's intervention. Afterwards, as he told the jury, the appellant called out, "I'll go home to my place to get a knife for you". Francis Wilson heard the argument. She thought the appellant called out that he was going to stab Ray. Janice Hubby, who was next door, remembered that the appellant left the porch soon after he and Ray Bramwell had stopped fighting. She saw him standing on the road, swearing and making some reference to Ray. Arthur Wilson was present for the darts game. He heard the appellant call out after he had been told to go home by Eileen Wilson, "I'll get you when you go to sleep. I'll kill you". Many of the witnesses thought that the appellant was drunk. Ray Bramwell left the house soon after the appellant had departed.

The appellant arrived at his parents' home at about 12.15 a.m., upset and saying that he had fought with Ray Bramwell. His father tried to quieten him. After a while, the appellant set out for the Wilson house.

The prosecution case was that there were two possible motives for the killing: having fought Ray, the appellant returned to kill him and in the darkness mistook Freddie for his brother; or the appellant was angry at the deceased for breaking up the fight and went back for revenge. The two Bramwell brothers bore a marked physical resemblance, and there were no light fixtures in the bedroom where Freddie was stabbed or in the lounge room outside it. The prosecution case discounted the idea that a sexual encounter could explain the stabbing. Not one of the more than a dozen members of the Palm Island community who testified had ever heard a rumour about molestation of the appellant, and Ray Bramwell denied that any such thing had happened.

The appellant is an Aborigine. He is of low intelligence. At the time of the killing, he was 18 years old. The youngest of five children, he had grown up on Palm Island. According to his mother, the appellant had been "very depressed" for years. She had heard of his attempts when 13 and 16 to commit suicide. She said that her son had spoken of "hearing voices" telling him to take his own life. She spoke of his emotional state on the "couple of times" she saw him in the weeks preceding the killing, when he seemed "very depressed" and was again telling of voices encouraging him to take his own life. His voices assumed a deal of significance at the trial. Before discussing evidence of the psychiatrists concerning the topic, it is convenient to mention a medical assessment made of the appellant just three weeks before the killing.

On 9 October 1995 the appellant saw Dr Trott, a senior psychiatry registrar with six years of psychiatry training. Dr Trott had often treated Aborigines. The appellant attended with members of his family who were concerned that he was being aggressive towards his sister. The appellant informed Dr Trott that he had a long history of violent behaviour which, in Dr Trott's assessment, was "non-discriminative ... really towards anybody". This tendency was associated with heavy consumption of alcohol.  Under the influence of alcohol, the appellant had threatened his sister with a knife when she insulted him. The appellant spoke of numerous times when he had been in fights, saying he was usually intoxicated when fighting. After drinking alcohol, the appellant "would go off", he said, into episodes of violence. He used to drink from Monday to Friday, consuming spirits, wine, sherry and beer, "and then it was heavy binge drinking at the weekend". Dr Trott disclosed that in March 1993 the appellant had consulted Dr Irving, a medical registrar, reporting impulsive attempts at self-harm associated with alcohol consumption.

Dr Trott questioned the appellant to discover whether there was any underlying depressive disorder. He asked about illusions and auditory or visual hallucinations. The appellant denied having experienced any. Family members were also questioned. None mentioned that the appellant had ever heard voices.

Dr Trott testified. At some length, he told the jury his reasons for concluding that nothing in his evaluation of the appellant at the time suggested depressive or psychotic features. As Dr Trott assessed him, the appellant had "poor impulse control", alcohol dependency, and an emergent anti-social personality disorder. There was no evidence of any major depression or illness such as schizophrenia. In Dr Trott's opinion, the appellant needed alcohol detoxification, not further psychiatric evaluation or treatment.

Three psychiatrists, Dr Edwards, Dr Grant and Dr Reddan were called for the defence. Before discussing their testimony, it is material to mention the circumstances in which these psychiatrists came to see him.

The day after the killing, the appellant was taken into custody under warrants of commitment for non-payment of fines. On 14 November 1995 he was received at Stuart Prison near Townsville. He was released on 12 December 1995. Eight days later he confessed to stabbing Freddie Bramwell and was again incarcerated after being charged with murder. On 24 January 1996 he was taken to the John Oxley Memorial Hospital, a high security hospital in Brisbane.

The three psychiatrists who were called in the defence case considered that, at the time of the killing, the appellant suffered from an abnormality of mind which affected capacities central to diminished responsibility. However, their diagnoses were not identical. Drs Grant and Edwards thought that the appellant suffered from paranoid schizophrenia when the stabbing occurred. Dr Reddan's opinion was that he then experienced major depression with psychotic features.

Dr Edwards, who has practiced as a psychiatrist since 1969, examined the appellant on 3 May 1996. The appellant told Dr Edwards that he had not experienced hallucinations. This information did not accord with a hospital record that two days previously the appellant had been affected by hallucinations about people trying to kill him. The appellant also denied having heard voices in 1993 at the time of a suicide attempt. Dr Edwards asked about the killing. The appellant told him about the fight with Ray Bramwell, which he said was over a cask of wine, about eventually returning to the Wilson house, of taking the knife from the kitchen sink, and about the stabbing. He gave Dr Edwards to understand that he stabbed Freddie Bramwell because he had been molested by him one or two years previously while in a drunken stupor. Although he had no memory of this molestation, the appellant claimed that he had overheard a conversation between Ms Palmer and his sister, Yvonne, in which Ms Palmer mentioned that the two Bramwell brothers had anal sex with him. He brooded about the revelation and became depressed by it.

Dr Edwards initially assessed the appellant as having anti-social personality traits amounting to a personality disorder.  At first he did not think that the appellant was suffering from major depression. Subsequently, he altered his diagnosis.

Towards the latter part of 1996 Dr Edwards learned that Ms Palmer and Yvonne Cannon denied the conversation the appellant claimed to have overheard. Dr Edwards then changed his mind. The new information led him to consider that what he had been told by the appellant was explicable on one of two bases. Either "it had been hallucinated" or the appellant had "made it up". Acting on the assumption that a psychotic experience was more likely than a lie, Dr Edwards concluded that the appellant probably was psychotic when the stabbing occurred, labouring under a delusional belief that he had been sexually assaulted. On this basis, Dr Edwards thought it reasonable to say that when the killing took place the appellant suffered from a serious mental illness, paranoid schizophrenia, which substantially impaired his capacity to control his actions and to know that he ought not to do the act.

Dr Reddan was the appellant's treating psychiatrist at John Oxley. She first saw him on 26 January 1996 and was his treating psychiatrist throughout the five months he remained in hospital. Dr Reddan described how the appellant was alarmed by his new environment, where he was surrounded by caucasians. He appeared depressed and distressed. Initially he spoke with a stutter which gradually ameliorated. Dr Reddan testified to possible diagnoses, mentioning psychotic disorder, drug-induced psychosis, depression and schizophrenic illness. The appellant appeared to her to be distressed by auditory hallucinations and paranoid delusions. He kept speaking of hearing people saying they were going to get him.

The appellant told Dr Reddan that his motive for the killing was the rumour. When she became aware that the nominated participants in such conversations said that they had not occurred, her suspicion was strengthened "that these were either grossly misinterpreted overheard conversations or in fact were the product of frank hallucinations".

Dr Reddan's final conclusion was that the appellant was suffering a major depression with psychotic features when Freddie Bramwell was stabbed. She saw it as a serious mental illness amounting to an abnormality of mind which substantially impaired his capacities to control his actions and to know that he ought not to do the act.

The hallucinations were important to Dr Reddan's conclusion that major depression had started not later than the stabbing.  She was asked whether guilt, remorse or incarceration may have contributed to the depression but adhered to a diagnosis of major depression with mood congruent features.

Dr Reddan commented upon Dr Trott's assessment. She pointed to the relatively brief time - an hour or so - involved in his examination. She said she had taken Dr Trott's notes into account. Despite them, she thought that the appellant probably was developing, or already had, major depression by the time of that assessment, but that it was not then obviously psychotic depression.

Dr Grant examined the appellant on 3 May 1996. He, too, was told of the molestation rumour. But Dr Grant heard a different account of events preceding the stabbing.  The appellant described the argument with Ray Bramwell but said it had to do with cars. He also claimed to have confronted Freddie with the allegation, "You rooted me". He said that Freddie laughed at him, and that he had said to him, "You laugh at me, I'm going to kill you".

Dr Grant informed the jury that, according to hospital records, the appellant had heard voices when he was in prison at Townsville. He was then transferred to John Oxley where, according to hospital records, psychotic episodes persisted. Dr Grant testified that the appellant denied having experienced hallucinations in custody. The appellant, however, did claim that people were out to get him, appearing to describe his impressions as if they were real events.

Dr Grant thought the appellant was suffering from a psychotic illness that had certainly been present since he was incarcerated at Townsville. It was not, he said, an easy diagnosis to make. There were signs of depression, and the appellant had been a very heavy abuser of both alcohol and marijuana over a long time. Those who drink very heavily often experience auditory hallucinations with sexual themes. However, after Dr Grant discovered that the conversation the appellant claimed to have overheard concerning molestation had not happened, he concluded that, at the time of the stabbing, the appellant was acting, at least in part, in response to a delusional belief that he had been sexually assaulted. His diagnosis was of a paranoid schizophrenic illness which had its early manifestations at the time of the offence and became more obvious later in prison.

Dr Grant gave a little evidence about the impact of incarceration upon Aborigines, describing it as a very stressful experience which often leads to adjustment problems and even mental illness. He thought it unlikely that the incarceration was responsible for the symptoms presented to him because the appellant had sought medical assistance in 1993 and again shortly before the stabbing.

In Dr Grant's opinion, the appellant had a serious mental illness which amounted to an abnormality of mind that substantially impaired his capacity to know that he ought not to do the act as well as his capacity to control his actions. In forming this view, it was important to Dr Grant that the appellant had laboured under a delusion concerning the molestation rumour. In cross-examination, he accepted that if the appellant was lying about overhearing a conversation concerning a sexual assault upon him, he did not have a defence of diminished responsibility.

The chance that the appellant might have fabricated the "voices" was touched upon in Dr Reddan's cross-examination, which revealed that in a report written in May 1996 she had referred to a recent claim by the appellant that he was hearing voices - something she thought "questionable" because his behaviour was not consistent with his claims. When she prepared that report, Dr Reddan had doubts whether he was hallucinating.

There were grounds upon which the jury could properly have declined to find on the preponderance of probabilities that diminished responsibility had been made out.

Three experienced psychiatrists eventually arrived at an opinion that the appellant suffered from an abnormality of mind which impaired relevant capacities at the time of the stabbing. But their diagnoses were all made after this young Aborigine had been in custody for more than a month; the diagnoses were not the same; and they depended upon a view that the appellant had not invented his story about the molestation rumour or the voices.

Dr Trott's diagnosis was opposed to the defence. His was not an extended examination, but it was proximate to the killing. The assessment took place on Palm Island in a familiar environment, it was assisted by discussions with family members and, because the diagnosis preceded the killing, it was not complicated by difficulties associated with estimating the significance of remorse or of the distressing effects of incarceration and anxiety over a pending murder trial.

Because the appellant did not testify, there was no sworn evidence of rumours of a sexual assault.  Certainly the evidence, especially that of Ms Palmer and Yvonne Cannon, indicated that there had not actually been any such conversation as the appellant claimed to have overheard. What the appellant said to the police and to the doctors about the molestation rumour may have been a delusion indicative of mental illness. But, in all the circumstances, the jury could appropriately have regarded it as a belated attempt at excusing the killing. After all, before the killing the appellant had not mentioned hearing that he had been interfered with. And the idea that such a delusion led to the stabbing may have seemed to the jury quite difficult to reconcile with the events of the night, especially the farewell threats of serious violence made not long before the killing by a man with a propensity to violence when intoxicated.

The appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 26 September 1997

I have read the joint reasons of Macrossan CJ and Byrne J from which it will be gathered that the problem before the jury was essentially a conflict of psychiatric evidence, resolution of which depended in part on what facts the jury found concerning the circumstances in which Freddie Bramwell died, and in particular whether that had anything to do with suggestions which the appellant heard, or thought he had heard, about Freddie having sexually assaulted him.

By s. 304A(2) of the Criminal Code the defence bore the onus of establishing that the appellant’s state of mind at the relevant time was in such a condition as is described in s. 304A(1);  there is therefore no question of setting aside the conviction of murder on the ground that the jury should have had a reasonable doubt.  Chester [1982] Qd.R. 252, Wallace [1982] Qd.R. 265, and Michaux [1984] 2 Qd.R. 159 show that psychiatric evidence favourable to the defence cannot be rejected if there is nothing to cast doubt on its correctness.

This Court’s jurisdiction to set aside a conviction based on a jury verdict as unsafe has been variously defined and the formulae used are discussed in M (1994) 181 C.L.R. 487.  Perhaps the strictest test which it has been suggested a verdict might have to pass is that there must be no "significant possibility that an innocent person has been convicted":  (M at 494);  but the predominant view appears to be that the Court should ask itself whether a jury acting reasonably must have entertained a reasonable doubt (or some equivalent test):  see Chamberlain (No. 2) (1984) 153 C.L.R. 521 at 534.  In determining this, the appellate court is entitled and indeed obliged, to take into account any consideration to be found in the evidence and an example of the sort of reasoning which is involved is to be found in Meissner (1995) 184 C.L.R. 132 at 145-147.  Because the onus under s. 304A lies on the defence, the test of safety of the verdict perhaps becomes, by analogy with that generally applicable, whether a reasonable jury must have accepted that the onus on the defence had been discharged.  It appears to me that this may be so whether or not psychiatric opinion favouring the defence is contradicted and whether or not there is evidence casting doubt on that psychiatric evidence.  Taken as a whole, the lay and psychiatric evidence may be plainly such that the probabilities, on the diminished responsibility issue, overwhelmingly favour the defence and in this situation I do not see how the Court could hold that the verdict could stand as being one which a reasonable jury could reach.

In the present case, however, it is my view that the jury’s verdict is defensible whether or not one applies the broad test just discussed.   The conflict between the psychiatrists had two aspects, the first being whether, speaking generally, the appellant suffered from a mental illness or lesser mental affliction, fluctuating in severity, and the second being whether at the very time the appellant killed Freddie Bramwell he was in such a state or abnormality of mind as substantially to impair one of the capacities mentioned in s. 304A(1).  On the first point, it is my view that the jury could not reasonably have rejected the defence contention.  It is true that the three psychiatrists whose opinions favoured the defence did not all agree on the precise nature of the appellant’s condition.  Dr J G Reddan, who found the diagnosis a difficult one, concluded that there was a major depression with mood congruent psychotic features (267).  Dr Edwards reached the view that the appellant had a personality disorder with antisocial personality traits (229), but subsequently changed his mind, thinking that the appellant suffered from paranoid schizophrenia (234).  Dr Grant was of opinion that there was a paranoid schizophrenic illness (327).  Each of these psychiatrists was initially asked to report, not on behalf of the defence, but for the purposes of the Mental Health Tribunal;  there was no reason to think that their opinions might have been slanted towards the defence.  The opinion of Dr Reddan, as it seems to me, should have been regarded as particularly weighty, as she filled the role of treating psychiatrist for five months while the appellant was in the John Oxley Memorial Hospital.

The psychiatrist on whom the Crown relied, Dr P J Trott, was not at the date of his examination a qualified psychiatrist, although he was not far from having attained that goal.  He saw the appellant only once, in the course of what was described as an "Outreach psychiatric clinic".  Dr Trott’s opinion was that there was at that time no evidence of any major depression or illness such as schizophrenia and no need for any further psychiatric evaluation  or treatment.

There was evidence from which the jury must have concluded that the appellant’s basic mental state fluctuated;  for example, while he was in hospital drug treatment was administered which brought about improvement.  Dr Trott’s main source of information was an interview with the appellant himself who, to put it simply, denied the existence of any thoughts or state consistent with his having a psychiatric problem.  It is I suppose possible that Dr Reddan who had the appellant as a fairly long-term patient in hospital was mistaken in thinking that he needed treatment, but this seems quite unlikely.  Dr Reddan’s view that the appellant had (to put it broadly) a serious, if fluctuating, psychiatric disorder, supported as it was by the experienced and independent opinions of other psychiatrists, should in my view have been found, on the balance of probabilities, to be correct.

I turn now to the question of proof of satisfaction of one of the tests in s. 304A.  For such a defence to succeed, it is not enough to show, first, that there is a substantial impairment of one of the capacities mentioned, and secondly, that there is a state of abnormality of mind of the kind contemplated;  the two have to be causally linked.  In this connection it is important to note the limitations which have been read into the notion of "abnormality of mind";  the authorities are comprehensively discussed in Whitworth [1989] 1 Qd.R. 437.  Thomas J at p. 444 adopted the expression "prescribed cause" as referring to the causes of abnormality of mind mentioned in s. 304A, and went on:

"Conditions or states of mind that do not arise from the prescribed cause must be excluded in this context.  Thus the effects of voluntarily consumed alcohol or drugs, which obviously do not arise from inherent causes or from any of the other prescribed causes, must be excluded from the abnormality . . .  " (444, 445)

His Honour also referred to:

" . . . the need to prevent counsel or jury from treating normal propensities, emotions and events such as jealousy, anger or prejudice as abnormalities of mind". (445) 

Thomas J then referred with approval to Scottish authority for the view that:

" . . . it will not suffice in law for the purpose of this defence of diminished responsibility merely to shew that an accused person has a very short temper, or is unusually excitable and lacking in self-control". (445) 

Derrington J remarked at p. 451:

"The purpose of the reference by the legislation to these specific causes of the relevant abnormality of mind is to exclude other sources, such as intoxication, degeneration of control due to lack of self-discipline, simple transient, extravagant loss of control due to temper, jealousy, attitudes derived from upbringing and so on".  

Matthews J agreed generally with the reasons of Thomas and Derrington JJ.

The importance of these considerations, in the present case, was that the case is not one in which there was evidence that the appellant’s basic condition, whatever its precise nature, at all times substantially impaired the capacities mentioned in s. 304A.  For example, when the appellant was sitting talking, apparently quite normally, to the psychiatrists he presumably did not lack those capacities.  The critical point in the case was:  did he lack any of them, on account of what Thomas J called "the prescribed causes", when he killed Freddie Bramwell?  That depended largely upon what the jury thought about the circumstances surrounding Freddie Bramwell’s death.  The appellant gave no evidence and in those circumstances the jury was entitled to treat as the primary source of information on the point evidence given by witnesses to be mentioned now.

Raymond Bramwell, the deceased’s brother, gave evidence that on the night of the death there was a dart game at what was called the Wilson house.   The appellant wanted to join the game and Raymond Bramwell told him in effect that he could not;  a fight developed between Raymond Bramwell and the appellant.  Raymond says he knocked the appellant down and then Freddie Bramwell, who had been next door, came in and intervened, telling Raymond to "go inside in his room".  The appellant said, according to Raymond Bramwell, "I’ll go home to my place to get a knife for you", and the appellant then left.  Raymond Bramwell said that the appellant had been drinking a flagon of port wine and that he was "staggering". 

Frances Maria Wilson gave evidence to the effect that on the night in question the appellant was drunk, that he and Raymond Bramwell fought on the verandah about darts and that "Errol said he was going to stab Ray".  On that night, she said, Freddie slept at the Wilson house and she later found him bleeding in bed.  In cross‑examination the witness said that two men (presumably Raymond Bramwell and the appellant) were arguing over darts when Freddie Bramwell stopped them.  She also thought that the appellant was drunk, and drunker than Raymond Bramwell.

Janice Huddy saw the appellant and Raymond Bramwell arguing over darts.  Before the appellant did that, the witness said, he was standing in the middle of the road and swearing at Raymond Bramwell "really bad".  She later saw that Freddie Bramwell had been stabbed in the chest.  Kenneth Wilson said that there was a game of darts at the Wilson house on the night in question and an argument between Raymond Bramwell and the appellant;  he gave no evidence of a threat by the appellant.  Eileen Wilson said there was an argument involving the appellant and Raymond Bramwell and the appellant said he wanted to fight Ray. She told them to go home.  Ronald Wilson heard an argument between the appellant and Raymond Bramwell and that they were swearing at one another.  He thought the appellant was "a bit drunk" and that he had not seen Freddie Bramwell go to the argument between the appellant and Raymond Bramwell.  Arthur Wilson said in effect that he heard the appellant and Freddie Bramwell arguing on the night in question, that he heard Eileen Wilson tell the appellant to go home and that the appellant said, "I’ll get you when you go to sleep, I’ll kill you".  Ezra Noble gave evidence about the dart game and that the appellant came to it being "pretty drunk" and wishing to play the game.  Ezra Noble said that Raymond Bramwell would not let him do so and that was when they started arguing;  he did not see Freddie Bramwell have any sort of argument with the appellant on that night.

Betty Walton saw, on the night in question, a fight between the appellant and Freddie Bramwell involving pushing;  in cross-examination it was suggested that there was an argument between the appellant and Raymond Bramwell.  She insisted that it was Freddie Bramwell who was arguing with the appellant.  It emerged that she had told the police that the argument was between the appellant and Raymond Bramwell.  Mona Palmer heard an argument between the appellant and Raymond Bramwell and at some stage heard the appellant say, "I’ll come back for you, yeah, you mother fucker", and Raymond Bramwell said, "I’ll bash you".  She saw the appellant go home.  Elizabeth Thompson said that on the night in question she heard an argument between Raymond Bramwell and the appellant relating to darts and she heard Eileen Wilson tell the appellant to go.  Yvonne Cannon saw the appellant at dawn;  he had at that stage killed Freddie Bramwell.  He told the witness that he "was fighting with Ray".

This body of evidence could provide the jury with reason to think that the death of Freddie Bramwell had to do with the argument between Raymond Bramwell and the appellant;  there was evidence that, immediately following that argument, the appellant threatened revenge and the obvious target of that was Raymond Bramwell, not Freddie Bramwell.  None of the witnesses who saw or heard the events in question gave evidence which would plausibly support a motive for an attack by the appellant on Freddie Bramwell on that night.  The only evidence which could do so came, not directly from the appellant, but from statements the appellant had made out of court.  The version the appellant gave to the psychiatrists was that he stabbed Freddie Bramwell because he had heard, some considerable time previously, that Freddie had molested him sexually.  But the other possibility was that the person the appellant really intended to stab was not Freddie Bramwell, but Raymond Bramwell, against whom the appellant had made a threat earlier in the night.  The two brothers looked similar and Freddie Bramwell was lying in a room which was unlit.  Depending upon the appellant’s degree of intoxication at the time of the stabbing, there may have been some mental confusion induced by alcohol, conducive to mistake.

It seems unnecessary to deal in detail with all the statements which the appellant made to the psychiatrists about the stabbing, but it is desirable to refer to Dr Grant’s account.  It was as follows:

"He told me that on the night of the stabbing, earlier in the evening, he’d had an argument with - with Ray, Freddie’s brother, and that was about cars, he said, about something to do with cars, and that he’d then also confronted Freddie, and said words to the effect of, you know, ‘You rooted me’ and Freddie had just laughed at him, and he’d said to Freddie, ‘You laugh at me, I’m going to kill you’ ".

It is impossible to reconcile this with the evidence of the witnesses discussed above.  Taking that evidence as a whole, it could reasonably seem to the jury unlikely that there was such a conversation between Freddie Bramwell and the appellant as that related by the appellant to Dr Grant.  It seems clear that in the presence of Freddie Bramwell the appellant made a threat of revenge, but that threat was apparently not directed at Freddie Bramwell and it would be unlikely that if, as the appellant said, the threat followed on a complaint by the appellant of sexual assault, none of those present could recall that complaint.

In short, the view was well open to the jury that the appellant was beaten by Raymond Bramwell in a drunken fight, threatened to stab him, but when he later returned to carry that out, mistakenly stabbed Freddie Bramwell.  On that view of the facts the defence case that Freddie Bramwell’s death had to do with a paranoid idea that Freddie Bramwell had sexually attacked the appellant must have failed.  And that necessarily undermined the foundation of the psychiatric opinions that at the relevant time the appellant was in such a condition as is mentioned in s. 304A.  The jury was entitled to think that the appellant was, more probably, acting, although mistakenly, in pursuit of his threat against Raymond Bramwell.

The case is in my opinion one in which acceptance of the appellant’s story about why he stabbed Freddie Bramwell was essential to defence success.  A jury acting reasonably was entitled to reject that version of events.

I agree that the appeal must be dismissed.