R v Goode[2004] QCA 211

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  Mr Goode was convicted of murdering his wife of over 30 years, Delma Joyce Goode, on or about 15 July 2001 during a camping holiday at Bathurst Bay, Cape York.  At the commencement of the trial he pleaded guilty to manslaughter, but not guilty to murder.  The prosecution did not accept his guilty plea and his trial on murder proceeded. 

[2] The two issues at trial were, first, whether the prosecution established beyond reasonable doubt that Mr Goode intended to kill or do grievous bodily harm to his wife, especially because of the large quantity of alcohol he had consumed[1] and, second, whether the defence established on the balance of probabilities[2] that Mr Goode was of diminished responsibility under s 304A Criminal Code.  That section  relevantly provides that:

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act … which causes death in such a state of abnormality of mind (whether arising from … inherent causes or induced by disease …) as substantially to impair the person's capacity … to control the person's actions, or the person's capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only."

[3] Mr Goode appeals against his murder conviction on three grounds.  The first is that the interposition of the witness, psychiatrist Dr Fama, in the prosecution case was irregular and created such unfairness that the conviction must be quashed.  The second is that the jury should have had a doubt as to whether Mr Goode formed an intent to kill or do grievous bodily harm to his wife.  Finally, Mr Goode contends that the verdict was unsafe and unsatisfactory in that the jury should have accepted Mr Goode was of diminished responsibility at the time of the killing.  A consideration of the grounds of appeal requires a review of both the evidence and the order in which it was given.

The evidence and the order in which it was given

(a)Pre-evidence remarks

[4] At the commencement of the trial the prosecutor read out the names of the potential witnesses to be called, including:

"A Dr Peter Gaetano Fama, who is a registered psychiatrist, who practises in Brisbane and who will be coming to give evidence this afternoon, I anticipate.  A Dr William John Kingswell, who will be giving evidence later in the trial.  He, too, practises – or is a registered psychiatrist in Brisbane.  I anticipate you might also hear evidence from a Dr Basil James, who is a registered psychiatrist practising in Townsville."

[5] In his explanatory opening remarks to the jury, his Honour stated:

"… you will hear from psychiatrists, as [the prosecutor] has already said, and those psychiatrists will give opinions on the state of the defendant's mind and what, if any, effect that had on his capacity to understand what he was doing, or the capacity to control his actions or the capacity to know that he ought not do this act or conduct himself in this way.  So, these are the matters that the psychiatrists are going to talk about.  You'll have to pay close attention to their evidence because that is what will probably be most important at the end of the day."

[6] The prosecutor's opening address was not fully transcribed and this Court does not know precisely what he said about the psychiatric evidence but it is clear that the jury were aware from the very commencement of the trial that the psychiatric evidence was crucial to their decision.

[7] The prosecution did adduce evidence from psychiatrists, Dr Fama in its primary case and Dr Kingswell in rebuttal.  They contradicted the evidence of psychiatrist, Dr Basil James, called for Mr Goode.  The uncontested evidence before this Court is that Dr Fama was only available to give evidence on the first day of the trial.  On the weekend before the trial, the prosecutor and defence counsel discussed Dr Fama's availability.  Defence counsel agreed to the prosecution calling Dr Fama during the main prosecution case, knowing that the prosecution also intended to call Dr Kingswell to give rebuttal evidence after the close of the defence case in which Dr James would be called.  The learned primary judge was not asked to and did not rule as to whether Dr Fama could give evidence in the main prosecution case rather than in rebuttal or whether Dr Kingswell could give evidence in rebuttal.

(b)Statements to police

[8] Prior to Dr Fama's evidence, the jury heard from the investigating police officers.  The jury listened to a recorded phone conversation and taped interviews between the police and Mr Goode, which took place between 2.30pm and 8.20pm on the day after the killing.

[9] Mr Goode told police that he had "a bit of an argument" with the deceased and used a piece of rope to strangle her: "… it was just something that's been on my mind for, you know, a while".  He had consumed "quite a few" drinks, "I don’t no [sic], probably three beers, maybe three or four rums".  He would have been "fairly drunk" and did not know what he was doing.  Later in the interview, he said he would have had four or five heavy tins of beer after 4.30pm and then probably at least five or six big rums.  He had been thinking about strangling his wife with the rope for a couple of days.  He borrowed about $10,000 from his mother and she recently asked him to repay some of it.  He did not have the money available and instead of talking to his wife about this problem he became depressed and anxious.  He had been drinking heavily for the few days before the killing.  At about 10.30pm he went into their tent whilst his wife slept and strangled her "to keep the peace".  He took a hammer and rope into the tent.  He was asked why he did this and replied that he possibly thought that if she struggled with the rope he could use the hammer.  He struck her on the side of the head with the hammer once, not very hard from what he could remember. He then put the rope around her neck.  He did not think she screamed.  He pulled back on the rope until there was no movement.  The interviewer asked:

"Were you aware of by going into the tent, by getting the hammer and the rope, were you aware of what you were about to do?

Well, I think I must have been because it probably would have been with the drink and everything I think, yeah.  It's you know, (ui).

…

Just to make that issue clear for me Greg, you were thinking about killing your wife prior to last night, or thinking that you had to do something?

Well, I definitely had to do something.

Prior to your wife going to sleep, that's when you thought about killing her.  Is that right?

Yes.

And you thought about how you would do that?

Yes.

And soon after that time, you gathered the tools and the instruments to affect [sic] that purpose?

Yes.

Would it be fair to say from, even considering the alcohol that you had to drink, that um, this matter had been planned, to a certain degree?

Yeah, I'd say so."

[10]  He told police that prior to the previous night he had never thought about killing his wife and there was no history of domestic violence in the marriage.  His wife was not nagging him that night and she was not a nagging wife.

(c)Dr Fama's evidence

[11]  Dr Fama, as already noted, was interposed with defence counsel's consent during the investigating officer's evidence.  He examined Mr Goode on 2 May 2002 for one and a half hours.  He also had access to a QP9 police summary prepared by Cooktown CIB on 23 July 2001; a psychologist's report of 14 August 2001; a clinical record of 15 August 2001 from the Mackay Integrated Mental Health Service; reports from Dr Basil James and Dr Kingswell; the brief of evidence compiled by Cairns CIB on 21 March 2002, including witness's statements and transcripts of the police interviews of 16 July 2001; the post-mortem report; and some reports from the Lotus Glen Correctional Centre made on or about 19 July 2001.

[12]  He was taken to and expressed familiarity with the provisions of s 304A Criminal Code.  He originally thought Mr Goode was suffering from alcohol dependence syndrome at the time of the killing.  When Mr Goode was placed in custody he did not have withdrawal symptoms and he was able to control his drinking when Dr Fama examined him after his release on bail.  These facts have caused him to modify his original diagnosis to alcohol abuse.  He also diagnosed Mr Goode as having a neurasthenic personality disorder, a disability not an abnormality of mind.  Neither alcohol abuse nor neurasthenic personality disorder, alone or combined, amounted to an abnormality of mind. 

[13]  He disagreed with Dr James's diagnosis that the appellant was suffering from the abnormality of mind of a major depressive disorder at the time of the killing.  In his view, Mr Goode had some depressive symptoms and unhappiness but these did not amount to a frank depressive illness or disorder.  He did not give a history of substantial depression prior to the killing.  He was able to carry on his everyday life and to enjoy some aspects of it, for example, fishing, gathering oysters and chatting to others.  When examined only a few days after the killing, he had no particular symptoms of depression, feelings of self-blame and guilt or self-directed aggression. 

[14]  Mr Goode reported regularly consuming with his wife two litres of rum over two or three nights, together with several cans of beer each night.  This alcohol consumption when combined with his personality weakness can have a disinhibiting effect, releasing otherwise repressed urges.  It would not have impaired his capacity to understand what he was doing but it would have affected his judgment, inducing him to do things which he probably would not have done had he been sober.  It would substantially impair his capacity to know that he ought not to kill his wife. 

[15]  In cross-examination, Dr Fama agreed that in diagnosing a major depressive disorder the patient's history is vital; some patients do not give a satisfactory and accurate history.  Defence counsel put to Dr Fama Mr Goode's account: he had always been the lynchpin of his family; on an earlier occasion when he had concerns over his inability to repay a debt to his parents, he ran away from his responsibilities for a time; on a second occasion he again despaired over his parental debts, fled his responsibilities and this time bought a shotgun and considered shooting himself; prior to killing his wife, he was again despairing about his inability to repay a debt to his elderly mother and he reacted for a third time in a peculiar way.    Dr Fama distinguished the previous episodes when Mr Goode ran away temporarily from his responsibilities from the final episode where, bizarrely, he did not run away but killed his wife in response to his own personal debt.  Mr Goode was anxious that his wife might react unfavourably to learning about the debt and that he would be in trouble with her.  Disturbed sleep was as consistent with alcohol abuse as with depressive symptoms.  Mr Goode described feelings of being trapped by the debt and unable to work out a solution.  On the other hand, he was capable of some enjoyment and of carrying on an ordinary everyday life; other campers at Bathurst Bay described the Goodes as apparently quite happy and talking freely; this is inconsistent with major depressive illness.

(d)Other evidence in the prosecution case

[16]  The investigating police officer gave further brief evidence.  Mr and Mrs Holloway, campers at Bathurst Bay at the time of the killing, gave evidence that they exchanged pleasantries with the Goodes when the Holloways arrived at the camp site on 12 July 2001.   On the night of the killing, they heard a reasonably loud tape of Slim Dusty music coming from the Goodes' camp site.  Mrs Holloway spoke to the Goodes on Friday, 13 July.  Mr Goode was friendly and offered her a beer, although Mrs Goode did most of the talking; they said they loved Bathurst Bay.  She spoke to them again the next day; she chatted mainly with Mrs Goode; Mr Goode spoke to the only male present in Mrs Holloway's group and seemed happy and carefree.  The Goodes said they were looking forward to holidaying at Bathurst Bay for a couple of weeks, enjoying their newly purchased camping equipment, the fishing and the lifestyle.  On the afternoon of the killing, she saw the Goodes walking back along the beach to their camp site.  Mr Goode was at least 30 to 40 metres ahead of the deceased, who called out, "Greg, wait for me".  Mr Goode did not respond and kept on walking even though Mrs Holloway thought that he was in a position to hear his wife.

[17]  Pathologist Dr Naylor examined the deceased's body.  He noted a rope around her neck which was fractured on each side of the upper part of the larynx.  He could find no satisfactory cause of death other than compression of the neck.  There were no significant injuries to the head.  A red discolouration of the scalp may have been caused by a blunt impact but was more likely to be due to decomposition. 

(e)Mr Goode's evidence

[18]  Mr Goode, who was 52 years old at trial, elected to give and call evidence.  He spoke of his long and happy marriage since he and his wife were aged 20 and 22 respectively.  Their happiness continued after the birth of their two children, Shaun, aged 30 at trial, and Clayton aged 27.  In the later years of the marriage they began to drink heavily.

[19]  He regarded himself as the fulcrum of his birth family (mother, father and siblings).  About 19 years earlier his father received approximately $15,000 compensation for an injury.  His father asked him to put it in a term deposit in Mr Goode's name so as not to jeopardise his pension.  Three or four years later Mr Goode used some of the money to buy a car without his parents' permission or knowledge and without telling his wife, intending to repay the money before his parents needed it.  He was unable to do so when asked and felt ashamed and guilty for letting down his family who looked up to him.  He had a trapped feeling, could not sleep well, lost his appetite, lost concentration and had low energy levels.  One morning instead of going to work he drove to a beach some distance from Mackay and shaved his body hair.  He stayed away all day and part of the night until he resolved to return home and tell his wife about his problems.  She was initially worried, cranky and upset but they talked about it, told his parents and things returned to normal. 

[20]  About two or two and a half years later he again used money from his parents' term deposit to pay bills without asking his parents.  He was unable to repay it when asked.  Again he felt guilty, ashamed, trapped and unable to sleep or concentrate.  He ran away, this time taking some money out of a joint bank account.  He bought a rifle and some ammunition and decided that if he could not solve the problem he would probably end up shooting himself.  He travelled to Clareview Creek, about an hour's drive south of Mackay, with a flagon of wine and a bottle of scotch.  He drank the scotch the first night and became ill.  He again shaved his body hair.  He wandered around the beach and the bush trying to work out a solution.  By the end of the second day, he resolved to return home and face his fears.  He explained the situation to his wife.  She was initially upset and cranky with him but they had a long talk and agreed that he should seek medical help and speak to his parents.  He consulted a psychiatrist at the Mackay Mental Health Clinic and improved without medication.  Nothing more was said about his parents' money. 

[21]  When he and his wife were working at Lakeland Downs in 2001 they planned a camping trip to Cape York.  He arranged for Shaun to build an off-road boat trailer and purchased a boat, motor and other camping gear for the trip, including a $2,000 mobile satellite phone to contact home or for emergency assistance, a 20 litre container of rum and seven or eight cartons of VB cans.  He travelled to Mackay in late June to collect the trailer and gear.  His mother asked him for about $5,000 from her term deposit money to paint her house.  Because he had used his savings to purchase the trailer and pay for the camping trip, he did not have the money to repay his mother.  He felt even more guilty and ashamed than before.

[22]  He and his wife set out on their holiday on the first Monday or Tuesday in July 2001.  He wanted to enjoy himself but constantly felt bad about the debt to his mother.  He usually enjoyed four-wheel driving over dirt roads but this time he did not.  They set up camp at Bathurst Bay about five nights before the killing.  He was not sleeping well, lost his appetite and although it was an idyllic spot he was not enjoying himself because of his problem.  He did not feel he could discuss it with the deceased because it would ruin their long anticipated holiday.  During the camping holiday he and the deceased routinely drank four or five cans of heavy beer each at lunchtime and later in the afternoon from about 5pm another four to six cans of beer each, before moving to rum and coke for his wife and rum and milk for him.   He would drink about 700ml or 750ml of rum each night. 

[23]  On the day of the killing he felt the worst he had felt.  He was trying to stop his wife phoning their sons in case she discovered that his mother wanted her money repaid.  They did some washing in the morning, went fishing, collected oysters and did some work around the camp.  At lunchtime they had their four or five tins of beer each.  In the afternoon, they drove up the beach for more fishing and oyster gathering.  He was feeling progressively worse and was anxious that his wife might phone their sons and discover his problem.

[24]  They returned to camp at about 4pm and drank some beer.  He left to collect a load of firewood, returned and drank a few more beers.  He lit the fire for his wife to prepare the evening meal.  He drank some rum.  During the evening he drank at least five or six good rums, the equivalent of 700ml or 750ml.  He remembered sitting alone by the fire drinking; he went into the tent, knelt down behind his sleeping wife, put a piece of rope around her neck and pulled back on it.  He next remembered sitting on his swag beside the fire.  He was fairly drunk.  He was conscious that he had done something terribly wrong.  He managed to sleep but only fitfully.   The full realisation of his actions struck him in the early hours of the morning.  He felt disbelief and shock.  He lit a fire and tried to drink a cup of tea.  He decided to return to civilisation and talk to someone.  He drove for six or seven hours to Laura and contacted the police.  He did not plan nor intend to kill his wife.  He had the recorded conversations with the police officers but the reasons he gave for killing his wife had been assumed by him in hindsight.  At no time did he decide that killing her would be the answer to his problems.

[25]  In cross-examination he agreed that his interviews with police were completely truthful.  He did not have any suicidal thoughts around the time he killed the deceased.  He denied exaggerating or tailoring his evidence.

(f)Evidence from Mr Goode's family

[26]  Mr Goode's younger sister, Ms Gibbins, and his sons, Clayton and Shaun, also gave evidence confirming the close and happy relationship between Mr and Mrs Goode, his pivotal position within his birth family and the two earlier episodes when Mr Goode went missing.  Clayton said that when he saw his father in late June 2001 his father seemed to be worried about something and became agitated over minor details. 

[27]  Ms Gibbins had become concerned at the amount of alcohol the Goodes were drinking during the later period of their relationship.  Before they left on the camping trip, she was worried about Mr Goode's agitation; he always seemed to be in a hurry and, uncharacteristically, left her out of things; he had become unsociable; he was not one to discuss his own problems.  In cross-examination she said that she had spoken to Mrs Goode about her concerns for his mental health but her sister-in-law said, "Don't worry, I'm handling things."  She told Mrs Goode, "If you have problems, you can come to me." 

[28]  Shaun also noticed that, before his parents left on the holiday, his father was unsettled, unrelaxed, rushing and could not sit still.  He collected his parents' belongings from the Bathurst Bay camp site after the killing.  The 40 litre Bundaberg rum container was more than two-thirds empty.  In cross-examination he described his parents as very excited about both their trip to Cape York and also about the prospect of becoming grandparents, with Shaun's baby expected late in 2001.

(g)Dr James's evidence

[29]  Psychiatrist Dr Basil James examined the appellant on 7 September 2001 after having first perused a transcript of the police interviews, a statement from Ms Gibbins and the prison psychiatrist's notes.  He was also present when Mr Goode and his witnesses gave evidence.  He relied on the account given to him by Mr Goode, which was consistent with Mr Goode's evidence in court.  Mr Goode was concerned that he had promised to repay some money to his mother.  When he was unable to satisfy that promise, he became consumed with worry and guilt, did not eat, lost weight, was fatigued, could not keep his mind from his all-consuming worry and he could see no way out of his problem.  For most of their marriage, the Goodes drank in moderation but in recent years and particularly in the last three weeks before the killing, Mr Goode was drinking to alleviate his feeling of desperation.  Whilst this improved things in the short term, in the morning he always felt worse.  Typically those suffering from major depression attempt to self-treat by consuming large amounts of alcohol.  Mr Goode's family history was of a man who had lived a kind life, demonstrating considerable personal responsibility within the family and at work but who, on two earlier occasions, suddenly abandoned responsibility for a time after experiencing feelings of shame, guilt and depression.  From what he heard in court, these incidents were dramatic events in an otherwise relatively untrammelled life and were forerunners of things to come.  Mr Goode said he had no recollection of ever intending to harm his wife. 

[30]  At the time of the killing, he believed Mr Goode was suffering from a major depressive disorder triggered by a life event, (his inability to repay his mother when requested), causing a series of chemical changes in the body and brain chemistry and function.  This biochemical disorder is called major depressive disorder in the psychiatric Diagnostic and Statistical Manual, 4th edition.  Mr Goode had seven of the nine recognised criteria, only five of which are necessary to support the diagnosis.  He suffered depressed mood, diminished appetite and weight loss, marked loss of energy, impoverished concentration, marked feelings of low self-esteem and worthlessness and insomnia.  Major depressive disorder is a disease of the mind, a state of mind abnormality which substantially impaired his capacity to be able to form any judgment about the wrongfulness of the killing.  Mr Goode probably knew that he had a rope in his hand and that it was around his wife's neck but he could not know that he should not be doing that.  His mind at the time was so distorted by his mood disorder that he had no capacity to understand that what he was doing was wrong.   

[31]  Dr James referred to Dr Fama's reliance on the fact that notes taken shortly after Mr Goode's admission to Lotus Glen Prison suggest that he was not then clinically depressed.  He observed that sometimes a person may be so depressed as to kill and, as a result of that cathartic act, afterwards appear somewhat better and return to reality, having alleviated the depression.  Whilst depression is usually directed at self-harm, a well recognised minority of sufferers will direct the aggressiveness outwards, for example, a mother suffering from post natal depression may kill a child or children.  Dr Fama's diagnosis of a neurasthenic or inadequate personality is not supported by Mr Goode's family history of him being an adequate worker, father, husband, brother and son.  He had a single specific vulnerability to depression when faced with a particular trigger, (the inability to repay his unauthorised spending of his parents' money), but this did not constitute a personality disorder.  Consistent with Mr Goode's own account, confirmed by the other evidence from family members given in court, he was ordinarily a conscientious, caring, loving person whose life was unblemished apart from these three episodes.  Dr Fama was also encouraged by the evidence of the other campers to reject a diagnosis of major depressive disorder.  That failed to take into account the fact that depressed people can put on a brave face until the critical moment.  This is why so many depressed people successfully kill themselves.  The lack of proportionality between the trigger of the depression and Mr Goode's reaction to it is no contraindication of a major depressive disorder.

[32]  Dr James was next referred to psychiatrist Dr Kingswell's report.  Dr Kingswell did not accept Mr Goode was suffering a major depressive disorder but instead attributed the killing to alcohol consumption combined with anxiety.  In Dr James's view, Mr Goode was initially merely anxious but this anxiety continued, bringing him close to a delusional state.  He turned to alcohol to treat his anxiety and depression.  Over time his body became more alcohol tolerant.  Killing his wife was much more attributable to his depression than to alcohol.  Alcohol was a parallel incidental event making his depression worse over time but it did not contribute very much to the act of killing.

[33]  In cross-examination Dr James agreed Mr Goode had confirmed a happy and satisfying sexual relationship with his wife until her death and that he had no conscious thoughts of committing suicide.  An intact libido is unusual in someone suffering depression although it is not a key criterion for the diagnosis.  He conceded that symptoms of insomnia and lack of appetite were as consistent with heavy alcohol consumption as with depression.  The careful planning and organisation of the camping trip was not inconsistent with a diagnosis of major depressive disorder; medical practitioners suffering major depression sometimes practise up until the day they suicide.  Whilst Mr Goode did not have recurrent suicide ideation, (one criterion of major depressive disorder), he clearly had thoughts of death and these led to the killing of his wife.

(h)The prosecution rebuttal evidence of Dr Kingswell

[34]  At the close of the defence case, the prosecutor indicated to the court that he proposed to call rebuttal evidence from Dr Kingswell and that there was no objection from the defence to this course. 

[35]  Psychiatrist Dr Kingswell interviewed Mr Goode on 18 April 2002.  He also perused police statements from members of the Goode family, other campers, the post-mortem report, transcripts of police interviews, Dr James's report, the clinical records of the Mackay District Mental Health Service referred to in a report from Dr Coward of 20 August 2001, (which included the results of EEG, CAT and blood tests), the prison medical record entry of psychiatrist Dr Woolridge of 24 July 2001, and a report from Dr Fama.  He was provided with a transcript of the evidence of Dr Fama and Mr Goode in the trial and was present when Dr James gave evidence in the trial.  Mr Goode's account given in court of the first two episodes when he ran from his responsibilities was quite different to that Mr Goode provided to him.  Dr Kingswell had no contact with Mr Goode's family members.

[36]  Dr Kingswell said that Mr Goode's reported consumption of alcohol in recent years was clearly alcohol abuse, way outside the World Health Organisation criteria for reasonable consumption.  There was not, however, the history of withdrawal symptoms or morning tremors to support a diagnosis of alcohol dependence.  Mr Goode's account of his life in the weeks leading up to the killing was of quite good health, quite good social/occupational functions, although with anxiety over his inability to fulfil a promise to repay money and his inability to tell the deceased about his deceit.  His anxiety did not ruin the camping trip but made it not as much fun as usual.  An essential criterion for major depressive disorder is depressed mood or loss of interest or pleasure.  Mr Goode did not describe a depressed mood to Dr Kingswell and nor was it supported by other contemporaneous evidence.  He was functioning quite well in organising and constructing a working camp site, enjoying his holiday, fishing, walking and, significantly, continuing a pleasurable sexual relationship with his wife.  On the day of the killing he said that he had enjoyed walking, fishing and collecting oysters.  In the evening, he and his wife drank about five or six stubbies of beer and he drank about 750ml of rum.  Appetite and sleep disturbance were also consistent with alcohol abuse.  In any case, his weight loss was not significant because in July 2001 he weighed 97 kilos and in May 2002 he was just three kilos heavier. 

[37]  Dr Kingswell did not make a specific diagnosis, instead identifying a number of possibilities, the most likely of which was an adjustment disorder with anxious mood, which is a transient disturbance of mood arising from a stressful event.  Alcohol impacts on people's judgment and disinhibits them, making them give ill-considered decisions.  It is commonly associated with violent offences, motor vehicle accidents and other disasters.  Mr Goode had an inherent vulnerability of personality and even assuming this amounted to an adjustment disorder, it probably had nothing to do with the offence.  He did not kill his wife when he was sober but only after consuming an enormous amount of alcohol.  The alcohol consumption was absolutely crucial in disinhibiting Mr Goode.  If he had any abnormality of mind, it did not affect his decision making.  He could quite competently reason about the rights and wrongs of his actions in both the moral and legal sense.  It was only with the additional impact of alcohol that he was able to overcome the usual social barriers to kill his wife.  Dr Kingswell discounted a diagnosis of major depression because his mood was not depressed and other symptoms were as consistent with alcohol abuse.  Mr Goode thought that killing his wife would protect him from her discovering his lie to his mother and was a solution that might relieve his anxiety.  Mr Goode did not believe the killing was to benefit his wife and did not give much consideration to the consequences until some hours after he had killed her.  Adults who kill others in the course of their depressive illness usually do so because they believe this will benefit the deceased.  Here, Mr Goode killed his wife to assuage his own anxiety. 

Has there been a miscarriage of justice in the splitting of the prosecution case?    

[38]  The appellant contends that the prosecution effectively and impermissibly split its case so that it had both the first and last say about the important issues raised by the psychiatric evidence and as a result there has been a miscarriage of justice.

[39]  It is well established that ordinarily the prosecution should not split its case but should present it completely before an accused person is called upon to indicate whether he or she intends to give or call evidence.  The judicial discretion allowing the calling of further evidence after the close of the defence case is used only exceptionally: R v Chin.[3]  This Court has taken a firm view against the prosecution splitting its case, even when the prosecutor has cross-examined an accused person about a prior inconsistent statement and then sought to call evidence of the inconsistent statement in rebuttal: see R v Ghion,[4] R v Neville,[5] R v Kern[6] and R v Soma.[7]  The general rule against splitting the prosecution case does not prevent the prosecution from calling evidence in reply directed to an issue where the proof lies on the defence rather than the prosecution, such as insanity, diminished responsibility or, for example, to rebut evidence of good character.[8]  In Shaw v The Queen[9] Dixon, McTiernan, Webb and Kitto JJ explained:

"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made.  There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity.  When the prisoner seeks to prove good character evidence may be allowed in reply.  But the prosecution may not split its case on any issue.  The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. … It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial.  It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.  … [G]enerally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen."[10]

Here the issue of intent and the relevance to it of intoxication under s 28(3) Criminal Code was an issue for the prosecution to prove in its case; the prosecution had to show beyond reasonable doubt that, despite his intoxication, Mr Goode intended to kill or do grievous bodily harm to his wife when he killed her.  The issue of diminished responsibility was for the defence to establish on the balance of probabilities, Mr Goode being otherwise presumed to be of sound mind.[11]  Ordinarily the prosecution would then be entitled to call rebuttal psychiatric evidence on that issue, raised for the first time by the defence.  This Court has held that to be so even where, as here, the prosecution knows the defence intends to call the psychiatric evidence and psychiatric reports have been exchanged: R v Files[12] and R v Pateman.[13]

[40]  More recently, in obiter remarks in R v De Voss,[14] this Court criticised the unsatisfactory practice of not exchanging psychiatric reports relevant to the defence of diminished responsibility in advance of the trial,[15] and observed:

"The acceptability of the psychiatric evidence in these cases is likely to depend upon information the psychiatrists have gleaned about the accused's behaviour over a long period of time and the accuracy of that information will extensively need to be gone into.  In some instances evidence in rebuttal has been allowed to be called; see Files [1983] 2 QdR 153 and Pateman [1984] 1 QdR 312; but it is ordinarily more convenient to have the whole of the Crown case called before the defence goes into evidence.  Rebuttal evidence is hardly likely to be necessary if any relevant reports are exchanged at a time conveniently in advance of the likely trial date."

[41]  Perhaps partially because of a legislative response to those remarks, since 1997 an accused person intending to adduce expert evidence as to an issue in the trial is required to give the other parties a copy of the expert report: s 590B Criminal Code.  Often, as in this case, by the time the issue of diminished responsibility is before a jury the psychiatric evidence has already been extensively tested by the parties in a hearing before the Mental Health Court.[16]  That was not, of course, disclosed to the jury here.   

[42]  Despite this Court's observations in De Voss, the introduction of s 590B Criminal Code, and the common practice of pre-trial hearings on these issues in the Mental Health Court, the practice has continued in Queensland that, generally, where the defence raises diminished responsibility, the prosecution calls its psychiatric evidence in rebuttal.  This is usually appropriate because until the defence raises evidence of diminished responsibility the accused person is presumed to be sane and it is only when the prosecution hears all the defence evidence on the issue that it is in a fair position to answer the defence case.  Even where the prosecution has been provided with a proof of the psychiatric evidence relied on by the defence and where the issue has already been canvassed before the Mental Health Court, a psychiatric opinion may ultimately turn on facts which emerge for the first time in the defence case.  The prosecution would be unfairly disadvantaged if required to call their evidence negativing diminished responsibility in their main case.  Any application then made to call rebuttal evidence would be subject to the contention that the prosecution would be splitting its case on the issue of diminished responsibility.  

[43]  Here, defence counsel consented to the splitting of the prosecution evidence on the issue, apparently to assist the prosecution's convenience rather than for its own tactical reasons.  His Honour did not intervene in this course presuming, as he was entitled, that legal representatives will decide trial tactics and procedure in the best interests of their clients.[17]  Because the judge was not asked to rule whether the prosecution could split its case as it did, there has been no wrong decision at trial on any point of law and under s 668E(1) Criminal Code the issue for this Court's determination is whether the splitting of the prosecution case has caused a miscarriage of justice: R v Soma[18] and Suresh v The Queen.[19]

[44]  Procedural matters like this do not lend themselves to inflexible rules because of the infinite variations arising in each case.  A complication here, not uncommon when diminished responsibility is raised, is that the prosecution psychiatric evidence was relevant to the two central issues in the trial, first, whether Mr Goode's intoxication meant that the prosecution could not establish beyond reasonable doubt that he formed an intention to kill or do grievous bodily harm to his wife and, second, whether the defence established on the balance of probabilities that he was of diminished responsibility when he killed her.  The prosecution is ordinarily obliged to call all relevant evidence on the first issue in its main case yet would normally call evidence on the second issue only in rebuttal once it was raised in the defence case. 

[45]  It would not have been sensible or fair to call Drs Fama and Kingswell on the intoxication issue in the prosecution case and to recall them on the diminished responsibility issue in rebuttal.  This would have amounted to splitting the case, at least in practical if not in strictly legal terms.  To require Drs Fama and Kingswell to give evidence on both issues in the prosecution case was likely to cause unfairness to the prosecution because the defence psychiatric opinion may well turn on facts arising for the first time in the defence case, for example, the evidence of Mr Goode's family was significant here.  For the prosecution to then call rebuttal evidence would be to split its case and such an application would only be granted in exceptional circumstances.  Had the learned primary judge been asked to rule on whether the prosecution could call Dr Fama on both issues in its main case and Dr Kingswell on both issues in rebuttal, he should have refused the application in the absence of any exceptional circumstances.  The respondent does not contend there were any exceptional circumstances.  Dr Fama's unavailability later in the trial was not exceptional.  The prosecution could have applied for an adjournment, elected to proceed only with Dr Kingswell or attempted to find another psychiatrist of like opinion.  The issue of intent as affected by intoxication and the issue of diminished responsibility were here so intrinsically entwined that they could not sensibly be separated.  On these facts the prosecution should have been required to call all its psychiatric evidence in rebuttal and Dr Fama should not have been permitted to give evidence in the main prosecution case.  His doing so effectively split the prosecution case on the two central issues in the trial.

[46]  Has there been a miscarriage of justice because the prosecution case was split?  Whether Mr Goode was of diminished responsibility when he killed his wife was a finely balanced question for the jury which, on the evidence, could have been decided either way.  Whilst Dr James's evidence supported Mr Goode's claim that he was of diminished responsibility when he killed his wife, whatever the order in which they were called, two other psychiatrists firmly held to their opinions that he was not.  Mr Goode's uncontested admissions to police were not helpful to his case and there was evidence that he was able to function adequately immediately prior to the killing.  On the other hand, the objective circumstances of the killing in the context of Mr Goode's social and family background were plainly bizarre and out of character.  At the commencement of the trial the judge and prosecutor highlighted the importance of the psychiatric evidence.  Dr Fama's evidence undermined that of Dr James before it was given.  Dr James's evidence was further undermined by the last word in the case given to Dr Kingswell.  The effect of the prosecution calling Dr Fama in its main case and Dr Kingswell in rebuttal is that the prosecution has split its case on two issues, (the intent to kill or do grievous bodily harm and the effect of intoxication on that intent, and whether Mr Goode was of diminished responsibility when he killed his wife).  This is not permitted except in extraordinary circumstances, none of which existed here.  It is difficult to assess the impact of this on the jury but there is a real danger that the prosecution may have gained an unfair advantage amounting to a miscarriage of justice in calling Dr Fama in its main case, undermining Dr James's evidence before it was given and then calling evidence from Dr Kingswell in rebuttal, the last evidence called in the case, to further discount Dr James's evidence. 

[47]  In addition, because Dr Fama's opinion was not based on the actual evidence in the defence case on which Dr James's opinion was based, it was of less weight in that respect than that of Drs James and Kingswell.  The learned primary judge was not asked to and did not direct the jury on this matter.  In such a finely balanced case where the jury were told at the outset of the central importance of the psychiatric evidence, the judge should have brought this significant weakness in Dr Fama's evidence to their attention.  The failure to do so is an added concern.  There is a real chance that the splitting of the prosecution case combined with the absence of such a direction has caused a miscarriage of justice.

[48]  It follows that the appeal must be allowed and the verdict of guilty set aside.  The remaining grounds of appeal concern whether a retrial should be ordered.

Did the prosecution establish an intention to kill or do grievous bodily harm in light of the evidence of intoxication?

[49]  Mr Goode contends that a verdict of guilty of manslaughter should be substituted because the prosecution did not establish an intention to kill in the light of the evidence of his intoxication.

[50]  There is no complaint as to the directions given by the learned primary judge on the relevance of the evidence of intoxication to the issue of whether Mr Goode intended to kill or do grievous bodily harm to his wife.  Mr Goode gave evidence that he went with a hammer and a rope into the tent where his wife was sleeping.  He hit her on the head with the hammer, placed the rope around her neck and pulled back on it.  The account he gave to police the day after the killing (set out fully earlier in these reasons)[20] suggested some deliberation and a process of reasoning to form a drunken intent to kill.  It was a jury question whether he made these admissions after reconstruction to explain to himself how he could have killed his wife or whether they accurately reflected his state of mind when he killed her.  Dr James gave evidence that Mr Goode's intoxication played no significant role in the killing.  The jury were entitled to reject Dr James's evidence on diminished responsibility but accept it on this issue.  Dr Fama and Dr Kingswell gave evidence that alcohol was a disinhibiting factor but that did not require the jury to conclude that he did not form an intention, even if a drunken intention, to kill or do grievous bodily harm.  The jury were entitled on the evidence to conclude that Mr Goode, although disinhibited by the large amount of alcohol he had consumed, formed an intention to kill his wife.  This ground of appeal fails.

Was the jury verdict unsafe on the evidence?

[51]  Mr Goode contends that a verdict of guilty of manslaughter should be substituted because the jury should have found on the evidence that on the balance of probabilities he was of diminished responsibility when he killed his wife.

[52]  The evidence is set out earlier in these reasons.  Dr Fama's evidence was of less weight than that of the other psychiatrists because he did not hear or read the defence evidence on this issue.  There were no compelling reasons, however, requiring the jury to reject the evidence of both Drs Fama and Kingswell, which contradicted the only psychiatric defence evidence from Dr James that the appellant was of diminished responsibility at the time he killed his wife because of a major depressive disorder.  Mr Goode's admissions to police shortly after the killing supported a conclusion that he decided to kill his wife to avoid telling her of his deceitful conduct with his mother's money and the need to repay it.  Some evidence appeared inconsistent with Mr Goode being deeply depressed shortly before or after the killing.  A different jury may have preferred Dr James's evidence that Mr Goode was suffering from an abnormality of mind, major depressive disorder, impairing or depriving him of his capacity to know he ought not kill his wife.  That opinion was supported by the protagonists' long and happy marriage and that Mr Goode had been a responsible son, husband and father, except for two earlier episodes triggered by the exposure to his wife of his deceit to his parents, a factor which seems to have also been a trigger in this final, fatal episode.  The jury were certainly not, however, compelled to accept Dr James's diagnosis.  They were equally entitled to prefer the evidence of Drs Fama and Kingswell and to conclude that Mr Goode was not of diminished responsibility but instead formed a drunken intention to kill his wife to avoid conflict with her.  There was ample evidence on which a reasonable jury could find Mr Goode guilty of murder.  This ground of appeal fails.

[53]  The consequence is there must be a re-trial.

Orders:

Appeal allowed; verdict of guilty of murder set aside; new trial ordered.

[54]  WILLIAMS JA:  It is not necessary for me to set out the relevant evidence because that is fully outlined in the reasons for judgment of the President which I have had the advantage of reading.

[55]  The critical issue raised by the appeal is whether the appellant was denied a fair trial because Dr Fama gave evidence for the prosecution on the issue of diminished responsibility as part of the main prosecution case, rather than in rebuttal along with Dr Kingswell the other psychiatrist called by the prosecution.

[56]  There is a clear general principle that in a criminal trial the prosecution may not split its case; reference in that regard can be made to R v Ghion [1982] Qd R 781,   R v Neville [1985] 2 Qd R 398, R v Kern [1986] 2 Qd R 209 and R v Soma (2003) 212 CLR 299.  But the rule against splitting the prosecution case refers primarily, if not exclusively, to evidence tending to prove the facts constituting the criminal offence.  The rule may also apply in situations where the onus is on the prosecution to negative beyond reasonable doubt matters which would otherwise afford a defence (for example defences based on s 23 or s 24 of the Criminal Code). 

[57]  But the position is different where there is an onus on the accused person of proving exculpatory matters on the balance of probabilities (for example insanity or diminished responsibility).  In that situation it is for the defence to establish the facts supporting the “defence” and it is only when such evidence is before the jury that there is a basis for the prosecution leading evidence tending to negate that “defence”.  That is why where issues of insanity or diminished responsibility are raised the prosecution is ordinarily entitled to call evidence in rebuttal (Shaw v The Queen (1952) 85 CLR 365 at 379-80, R v Chin (1985) 157 CLR 671, 677 and 685, and Soma at 319-20).  However it must remembered, as was said by Dixon, McTiernan, Webb and Kitto JJ in Shaw at 380, that the rule against splitting the case “is a matter of practice and procedure” and it would be “unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial.”  Those observations were cited with approval in Soma at 308-9.  For that reason one cannot say, particularly as here where the procedure was adopted with the consent of counsel for the accused, a breach of the rule against splitting the case of itself vitiates the trial.  In such circumstances the whole of the trial proceedings must be evaluated in order to determine whether or not the course followed deprived the accused of a fair chance of acquittal, that is, there was a miscarriage of justice.

[58]  In the present case Dr Fama gave detailed evidence as to the appellant’s mental state before the jury had heard evidence from the appellant and other members of his family relevant to the appellant’s state of mind at the material time.  Three possible consequences flowed from that.  First, the jury could have been so impressed by the evidence of Dr Fama that that coloured their evaluation of evidence subsequently given by the appellant and his witnesses.  Second, the jury may not have re-evaluated their initial assessment of the evidence of Dr Fama in the light of the defence evidence.  Third, the jury may not have appreciated that Dr Fama’s opinion was not based on all the evidence before them.  Also the defence at trial did not have the opportunity of cross-examining Dr Fama on the basis of the defence evidence as it emerged at trial.  Those considerations must be given significant weight in this case because the learned trial judge in his summing up did not draw to the jury’s attention the possible significance of the fact that Dr Fama had given his evidence without regard to the evidence given in the defence case. 

[59]  Given the evidence of Dr James it has to be said that the issue of diminished responsibility was finely balanced as between prosecution and defence expert witnesses and it may well be that the considerations I have mentioned were sufficient to tip the scales in the jury’s mind in favour of the prosecution.

[60]  It follows that the appellant was deprived of a reasonable chance of acquittal on the murder charge.  Regrettably the only course for this court to take is to set aside the conviction for murder and order a re-trial.

[61]  I agree with all that has been said by the President on the other grounds of appeal.

[62]  I agree with the orders proposed.

[63]  CULLINANE J:  I have had the opportunity of reading the reasons of the President and Williams JA.  I agree with the reasons of each and the orders proposed.