SUPREME COURT OF QUEENSLAND

[1] McMURDO P: On 3 September 2008, the appellant, Bob Rahim, in the presence of the jury panel, pleaded not guilty to murder but "guilty to manslaughter on the basis of diminished responsibility".  The prosecutor indicated that he did not accept that plea in discharge of the indictment.  The jury was then empanelled and Rahim's trial commenced.[1]  On 16 September 2008, he was convicted of murder.  He appeals against his conviction, contending that the guilty verdict should not stand because, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of murder rather than guilty of manslaughter on the basis of diminished responsibility.[2]

[2] I would dismiss the appeal.  These are my reasons.

[3] Section 304A Criminal Code 1899 (Qld), exceptionally, places the onus of proof on the accused person on the balance of probabilities.  It relevantly provides:

"(1)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 or making the omission which causes death in such a state of abnormality of mind (whether arising from … or induced by disease …) as substantially to impair the person’s capacity to understand what the person is doing, or 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 …,  the person is guilty of manslaughter only.

(2)On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only."

[4] It is uncontentious that Rahim killed the deceased by stabbing her at least 26 times causing about 45 wounds (including to the breast, chest, abdomen, shoulder, pubis, labia majora, right arm and left wrist) whilst she was in the bedroom of her home on the morning of Saturday, 8 May 2004, and that he then cut his own wrists and stabbed himself in the chest and abdomen in a genuine suicide attempt.  Nor is there any doubt that Rahim intended to either kill the deceased or at least to cause her grievous bodily harm.  The only contentious issues at trial were whether Rahim's evidence about the events preceding the killing were reliable; whether he was suffering from a major depressive illness at the time of the killing; and whether this illness substantially impaired his capacity to control his actions under s 304A.  In resolving this appeal, it is necessary to revisit those issues and to discuss aspects of the evidence relating to them in some detail. 

The evidence

[5] Rahim and the deceased lived in Fiji where they married in 1980.  They had a daughter born in 1981 and a son born in about 1984.  Their son was tragically killed in a motor vehicle accident in May 1990 when he was six years old.  Their marriage relationship deteriorated after their son's death.  They had another son born in 1989 who was 17 years old at the trial and about 13 years old when his father killed the deceased. 

[6] Their daughter, who was 26 years old at the trial, gave the following evidence.  After her brother's death, her parents became "really depressed".  Generally their life in Fiji was happy but the anniversary of her brother's death in May each year was always a difficult time for her parents (Rahim killed the deceased in May).  She remembered four occasions in Fiji when her father hit, kicked, pushed and slapped her mother.  On one occasion, when her mother was on the ground, he kicked her.  She saw bruises on her mother once but she did not know if these were caused by her father's violence.  During one violent episode, the daughter picked up a sugar cane knife and told her father, "If you don't stop hitting her, I will hit you with this."  He desisted.  She did not see him assault the deceased again.  She remembered an occasion when her mother was unconscious on the toilet floor.  She had heard her parents arguing beforehand but when she found her mother on the floor her father was not present. 

[7] The family moved to Australia in 1995.  She recalled an occasion when her parents argued because the deceased wanted to end their relationship.  Her father said that, if the deceased did not take him back, he would kill himself in front of her. 

[8] Her father frequently returned to Fiji to sell tools and electrical items.  The deceased did not accompany him on these trips.  On one occasion he stayed for nine months.  Her father formed a relationship with another woman in Fiji.  He told her that his girlfriend in Fiji was pregnant.  Her father had "divorced" the deceased in Fiji "by saying talaq three times".  Her father, who worked as a welder, moved out of the deceased's home and lived in separate premises in another Brisbane suburb.  He said this was because he had a bad back and the stairs in the deceased's home aggravated this complaint.  He would sometimes stay in the deceased's house and share her bedroom, up to five days a week.  She considered her parents were still living together at this time. 

[9] The deceased entered into a relationship with Stuart Pengelly in early 2004.  When her father found out about this relationship, he contacted his daughter on Valentine's Day (14 February) 2004, and asked her to take flowers to the deceased.  The daughter refused.  She told him to forget about the deceased who had "moved on"; he should let her go.  He was "really depressed" and crying.  Later she received a phone call from Parvati Whittle, a female friend of the deceased.  The daughter and her husband went to the deceased's house.  Her father was sitting at the kitchen table across from the deceased.  He kept asking her to take him back.

[10] In an undated protection order application under the Domestic and Family Violence Protection Act 1989 (Qld) prior to 4 March 2004, the deceased stated that, on 7 and 8 February 2004, Rahim "Threaten[ed] over the phone if I was there I would have beaten you up." 

[11] In a protection order application dated 8 March 2004, the deceased stated that on 5 March 2004[3] Rahim:

"Entered my house without my knowledge.  I saw him standing on the doorway to my kitchen.  I tried to run outside but he grabbed me and made me sit at the dinning table where I had no way of escaping.  For two hours or more he kept repeating one same question 'to take him back'.  And to forgive him for all the pain he caused.  Then my daughter and he let me get out of the chair.  I told him to leave the house but he wouldn't.  He took my mobile phone and house keys and wouldn't return it to me.  I went to my friends house and the cops retrieved the phone and house keys from him. … He has always been a violent person since I married him in 1980.  He is short-tempered and would take his anger out on me by slapping me, pulling my hair, hitting me, kicking me, knocking me out unconscious.  He would approximately hit me once or more in a month.  This stopped when we arrived in Australia in 1995.  The most recent time he was violent towards me was in 12th October 2003.  He chased me around the house, he shoved me around, he slapped me, punched me and kicked me and pushed me against a wall.  He threw a one metre tall glass vase at me but it didn't hit me.  He threaten our son when my son tried to call the police but he didn't make any threat to hit him.  [My] cousin was staying at our house that night and he saved me. … He is a very short-tempered person and he was in Fiji recently (around 6th Feb 2004) He threatened me over the phone that he said he didn't know what he would have done me was near me.  He was extremely.  He called me names, verbally abusing that I was a slut and whore."  (errors as in the original)

[12] The deceased obtained a temporary protection order against Rahim on 26 March 2004.  Rahim was in Fiji from about the 21 to 27 March 2004.  The deceased and Stuart Pengelly took part in an informal Islamic marriage ceremony on 4 April 2004.  On 7 May 2004, the day before the killing, the deceased told her daughter that Rahim was at her house packing his property and had again asked her to take him back.  The deceased said that she told Rahim she would not take him back and that she had formed a relationship with Stuart Pengelly. 

[13] Mr Pengelly gave the following evidence.  He met the deceased on New Year's Eve 2003.  They became friendly and their relationship developed.  They went through a Muslim commitment of faith ceremony.  He did not meet her husband, Rahim.  On Friday, 7 May 2004, the day before the killing, the deceased rang him and invited him over for the night because her son was staying at a friend's place.  Mr Pengelly arrived at about 6.30 pm.  They shared a meal, watched television and talked.  He went to bed at 9.00 pm; he had an early start at work the next day.  The deceased continued to watch television but came to bed later.  At some stage during the night (he thought it was early the next morning) they had sexual intercourse and then went back to sleep.  He woke at about 5.00 am and dressed for work.  She packed his lunch and kissed him goodbye, saying, "See you later on."  During his "smoko break" at 9.20 am, he phoned the deceased, as he often did.  He had difficulty getting through.  A male voice answered and kept repeating "Hello, hello, hello, hello, hello".  He thought he had the wrong number, redialled but received the same response.  Mr Pengelly said, "Who the fuck is this?"  Rahim responded, "It's Bob."  Mr Pengelly said, "What the fuck are you doing there?"  He demanded that Rahim put on the deceased.  Rahim replied, "She's dead."  Mr Pengelly telephoned 000 and followed police instructions.

[14] Ms Whittle's evidence included the following.  She was a close friend of the deceased.  After the deceased formed a relationship with Stuart Pengelly, she told Ms Whittle that she intended to leave Rahim.  The deceased told Ms Whittle that she told Rahim and that he responded by threatening to kill the deceased.  The deceased feared for her life.  On one occasion, Ms Whittle was present when Rahim arrived at the deceased's house, grabbed the deceased and placed her in a corner of the kitchen so that she could not leave.  He was very aggressive and angry.  He told the deceased that she would be sorry.  He threatened to cut off Mr Pengelly's head and to bring it to the deceased on a silver platter.  Ms Whittle telephoned the police and the deceased's daughter.  Rahim eventually relaxed after his daughter arrived.  The deceased left with Ms Whittle.  Ms Whittle last saw the deceased on the Sunday before her death.  She indicated then that she was very happy with Stuart but she was "petrified" of Rahim and "really scared" about what he might do.  She spoke to the deceased on the Monday before her death.  The deceased said that Rahim was moving all his things out of their house; as her mother-in-law was present, she could not talk much.  In cross-examination, Ms Whittle agreed that some of Rahim's storage drums under the deceased's house had holes cut in the top so that items could be placed in them. 

[15] From about 2000 onwards, Rahim rented a room in a house in suburban Brisbane belonging to Mr Edward Krippner.  Mr Krippner gave the following evidence.  Rahim was often away in Fiji.  Mr Krippner understood that Rahim was separated from the deceased.  Rahim had a girlfriend in Fiji who stayed with Rahim at Mr Krippner's house from time to time.  Rahim used high density cardboard drums as containers to store items which he transported to Fiji for sale.  On Friday 7 May 2004, Rahim asked Mr Krippner to drive him to his former wife's home.  He told Mr Krippner to park around the corner and wait for 15 or 20 minutes.  Rahim returned and they drove home at about 7.30 or 8.00 pm.  Later, Rahim went out.  He had his own car.  On an earlier occasion, Rahim had asked Mr Krippner to drive him to another address.  Rahim said this was the "ex's boyfriend's place" and Rahim wanted to see what was going on.  He directed Mr Krippner to park around the corner and wait for five minutes.  Rahim returned after five minutes.  Police contacted Mr Krippner on 8 May 2004.  He then noticed that a knife was missing from the kitchen. 

[16] Rahim left some suicide notes and post-death instructions in his car.  These relevantly included:

"I have had enough of this miserable life therefore goodbye – world.  Stewart Pangelli has destroyed my life taken away from me [the deceased] the only person I treasured more than my own life.  May God destroy Stewart Pangel as well.  This is my dying wish.  I have seen too much and heard too much tonight and I can't bear to live with the fact that [the deceased] is enjoying life with Stewart Pangelli after destroying me.

Signed Bob (Bob Rahim)

…

Friday 07/5/04 10.45 pm

I am sick of pleading with [the deceased] to reconcile with me and we live together.  But [the deceased] has been cheating on me for a long time.  Now she is having a sexual affair with – Stewart Pangelli.

…

Just when I thought life was getting back to normal and I would be living with [the deceased] and my son … she has destroyed everything.  Despite the fact that [the deceased] and I had sex in my car … on Wed – 5/5/04 → at 2 pm and under our house on Thurs 6/5/04 and Friday morning 7/5/04 at 10.30 am (in our bedroom) and promised me so many things she has cheated on me again tonight.  I saw Stewart Pangelli entering our house at 9.02 pm.  At 10:00 I was standing right below the bedroom window and heard [the deceased] and Stewart having sex on my bed.

…

I have had enough in my life and do not intending living on such a miserable life where courts favour women in this country. 

Stewart Pangelli has destroyed my life.

… [my daughter] destroyed my life by supporting her mother into doing somet."  (errors as in the original)

[17] On the morning of 8 May 2004, Rahim called the 000 emergency number and told police that he had killed his wife and cut himself.  When police arrived, Rahim said he did not know what had happened and repeated, "I kill my wife."  He said, "I want to die." 

[18] Police found the deceased naked on her bed.  Her untorn clothing had been removed.  Rahim's DNA was detected in the deceased's fingernail scrapings but his sperm or seminal fluid was not detected on, in or near her body.  When pathologist, Dr Lampe, was shown in cross-examination a mark on the deceased's neck in a post-mortem photograph, he conceded it could be a love bite.  Dr Lampe considered that it could equally have been a blood smear. 

[19] Rahim gave and called evidence.  His testimony included the following.  He and the deceased argued.  From time to time he had hit her but his violence was not extensive.  He denied that the events of 5 March 2004 involved any actual or intended violence to the deceased.  He asked his mother to speak with the deceased to try to convince her to reconcile.  The deceased rang him on Wednesday, 5 May 2004 and they arranged to meet at her house.  They had consensual sex in his car.  She asked him to come to her house the following day to remove some of his property.  He attended her house the next day and began packing some of his possessions from under her house.  She came downstairs and they had consensual sex on the floor in the course of which he gave her a love bite to the neck.  She went upstairs and brought down some cold drinks.  They hugged each other and cried.  His mother came downstairs and saw them hugging and crying.

[20] On 7 May 2004 he returned to the deceased's home at her invitation.  He continued packing items under the house.  The deceased helped him.  She invited him upstairs where they had consensual sex in her bedroom.  He asked if he could spend the night.  She refused as Stuart Pengelly was coming over.  She said the appellant could come over later.  He thought she was going to end her relationship with Pengelly that night and that he and the deceased would reconcile.  He went to her house at about 7.30 pm.  The deceased told him to leave quickly because Pengelly would soon be there.  Rahim left but returned later.  He stood under the bedroom window and heard Pengelly and the deceased having sex.  He returned to Mr Krippner's home where he wrote the suicide notes.  He felt "hopeless and useless and worthless and … [he] was being used".  He "just wanted to die".  He then decided that rather than kill himself he would return to Fiji.

[21] The next morning he began to pack for Fiji.  He phoned the deceased and told her of his plans to return to Fiji.  She asked him to come over to talk.  He took up her invitation, taking rope, tape and a kitchen knife to use in packing his property.  He continued packing his possessions under the house.  The deceased brought him biscuits and a cup of tea and gave him a hug.  She invited him upstairs but told him to use the back entrance so that the neighbours did not see him.  He went upstairs and into the bedroom.  His wife was sitting naked on the edge of the bed.  She told him to close the front door.  He did so and when he returned she was lying naked on the bed.  He took off his shoes and began to remove his t-shirt. 

[22] The next thing he remembered was that he was on the floor trying, but unable, to get up.  There was blood everywhere.  He called to the deceased but she did not answer.  At some stage he said, "Wake up, wake up", but, again, she did not respond.  He remembered thinking how painful it was that he was still seeing the deceased but to do so he had to use the back door of her home.  He saw the phone nearby and rang 000.  He recalled seeing the knife close by but could not remember how it came to be in the bedroom.  He remembered telling police that he had killed his wife.  Someone telephoned and said that he was Mr Pengelly and that he wanted to talk to the deceased.  Rahim told Mr Pengelly that she was dead.  Rahim remembered someone tying his hands.  He next woke up in hospital where he remained for 17 or 18 days before being transferred to prison.

[23] Rahim's mother gave evidence confirming that Rahim had lost a significant amount of weight in the two to three months prior to the killing; he had become "really thin".  (Other evidence established that Rahim was ordinarily about 65 kg but when hospitalised after the killing he weighed about 44 kg.)  On the Thursday before the killing, Rahim's mother was at the deceased's home when Rahim was packing his possessions under the house.  The deceased took him a fruit juice on a tray.  Later that day, she saw Rahim and the deceased crying and hugging.

[24] General practitioner Dr Hunt gave evidence that he treated Rahim between 1996 and 2003.  Rahim showed early signs of depression in 1999 and was prescribed anti-depressants until 2001.  He did not see Rahim after January 2003.

[25] Dr McVie has been a practising consultant psychiatrist since 1995 and was an assistant psychiatrist to the Mental Health Court.  As a treating psychiatrist, she examined Rahim at the Arthur Gorrie Correctional Centre in late May 2004.  She considered Rahim was then suffering from a major depressive illness.  She subsequently read the reports of psychiatrists Dr Fama, Dr Varghese and Dr Weppner.  She also perused the transcripts of the evidence of witnesses in the prosecution case.  She did not examine Rahim with a view to considering his mental state at the time of the killing but rather as his treating psychiatrist.  She thought that he was probably suffering from a major depressive illness at the time of and before the killing and that there was a possibility that this depressive illness amounted to diminished responsibility under s 304A.  But, as Rahim's treating psychiatrist, she had not examined him with s 304A in mind, and so did not wish to give a firm opinion as to whether it applied in his case.

[26] Dr Varghese has been a qualified psychiatrist since 1978.  In addition to his private practice, he was a visiting senior psychiatrist at the Princess Alexandra Hospital, an associate professor of psychiatry at the University of Queensland and an assisting psychiatrist for the Mental Health Court.  He examined Rahim when he was in custody on remand on 24 May and 8 August 2005.  Dr Varghese formed the opinion that Rahim was then in a state of major depression, although partly in remission through treatment.  On the history Rahim gave, Dr Varghese formed the opinion that, on the balance of probabilities, Rahim was suffering from depression at the time of the killing and that this substantially impaired his capacity to control his actions.  Dr Varghese considered that his opinion was supported by objective data including Rahim's significant weight loss before the killing and his past history of depression referred to by Dr Hunt.  Whilst jealousy was undoubtedly an element in the killing, Rahim's depression made him unable to process his emotional feelings which were aroused by jealousy and the deceased's ambivalence.  Believing there was a possibility of reconciliation, his jealousy intensified as a result of the depressive cognition and that led to the uncontrolled killing and suicide attempt.

[27] In cross-examination, Dr Varghese agreed that his opinion was underpinned by an acceptance of Rahim's version of events leading up to the killing.  If, for example, Rahim had left his home and packed a knife with the intention of killing the deceased, then, regardless of his depression, he would have had adequate time to correct that intention because he would have known it was wrong to kill her.  In that case, diminished responsibility would not be established.  If Rahim had premeditatively taken the knife to either harm or threaten the deceased, this would undermine Dr Varghese's conclusion that Rahim was suffering from an abnormality of mind that substantially impaired his capacity for control.  If the deceased had not been ambivalent about reconciliation; if she had not been having sex with Rahim; if she had not invited him to her home in the week before her death; if she had told him unequivocally that she wanted nothing more to do with him; and if she had been telling him that for some time; then there was no reason for Rahim to be at her home at the time of the killing.  In those circumstances, his depression would not have impaired his control.

[28] Dr Varghese added, however, that if it was wishful thinking on Rahim's part as to his relationship with the deceased having a future, this might make Rahim's case for diminished responsibility under s 304A stronger because it suggested cognitive distortions or brain dysfunction. 

[29] Dr Weppner, a consultant psychiatrist since 1994, first examined Rahim at the Woodford Correctional Centre in February 2007.  He also perused the Princess Alexandra Emergency Department hospital notes of 8 and 9 May 2004; the report of Dr Hunt; the reports of psychiatrists Dr McVie, Dr Varghese and Dr Fama; and the transcript of the evidence of the prosecution witnesses at trial.  Dr Weppner formed the view that Rahim was suffering from a major depressive episode in the period prior to the killing and that, on the balance of probabilities, this substantially impaired his capacity to control himself, causing him to kill the deceased.  Rahim told Dr Weppner that he believed he and the deceased were reconciling.  In cross‑examination, Dr Weppner agreed that, if Rahim's version of events as to the deceased wanting a reconciliation was inaccurate, this would impair the strength of his diagnosis.  It was essential to his diagnosis that the deceased had been inviting Rahim to have sex with her over the days leading to the killing.  His diagnosis would be different if Rahim took a knife to the deceased's home intending either to harm her or to force her to listen.

[30] The prosecution called Dr Fama to give rebuttal evidence.  Dr Fama has been a qualified psychiatrist since 1968.  At the time of trial, he was working part-time both in private practice and for the Prison Mental Health Service, Queensland Health.  He had many years experience in giving opinions as to diminished responsibility under s 304A.  He examined Rahim on 25 January 2007 at the Woodford Correctional Centre.  He took a history from him as to the events leading up to the killing.  He also examined relevant medical records and reviewed the evidence given at trial, including the evidence from Dr Weppner, Dr Varghese and Dr McVie. 

[31] In Dr Fama's opinion, Rahim exhibited depressive symptoms amounting to an adjustment disorder or reactive depression in response to his circumstances, including frustration, jealousy, anger and rage; but he was not suffering a major depressive illness at the time of the killing.  He was not suffering an abnormality of mind at the time of the killing.  He was able to carry out his everyday tasks to a reasonable level.  Whilst he had lost weight, he was otherwise managing his life in a reasonable fashion.  His sexual drive was preserved.  His suicide notes did not reflect self-loathing but a desire for vengeance, including vengeance against the deceased's "lover".  The suicide notes suggested that Rahim was consumed with despair, rage and jealousy and that his mood was disturbed.  It was a question for the court whether this actually constituted an abnormality of mind. 

[32] Dr Fama conceded that the one thing against his conclusion that s 304A was not engaged was Rahim's significant weight loss.  On 25 January 2007, Rahim weighed 53 kg but on 25 May 2004, a few weeks after the killing, he weighed only 40 kg.  But Dr Fama considered weight loss to be only one indicator of major depression.  Other indicators, especially the suicide notes, did not suggest that Rahim relinquished control when he killed the deceased because of an abnormality of mind.  There was no substantial impairment of control.  An adjustment disorder like Rahim's depression was not a trivial matter.  It could lead to violent acts and suicide.  But in Dr Fama's view Rahim's adjustment disorder was not an abnormality of mind, although Dr Fama reiterated that this was ultimately an issue for the court.

The judge's relevant directions to the jury

[33] The judge correctly instructed the jury that, to the extent that medical evidence depended on a particular version of facts but those facts were not established to the jury's satisfaction, that may affect whether they accepted the medical evidence.  It was a question for them as jurors to consider whether Rahim's mind was abnormal at the time he killed the deceased. 

[34] The judge fairly and accurately summarised the effect of the medical evidence.  Her Honour explained to the jury that it was a question for them whether they found it more probable than not that, at the time Rahim killed the deceased, he was in a state of abnormality of mind which substantially impaired his capacity to control his actions.  If so, they would find Rahim not guilty of murder but guilty of manslaughter.  If Rahim failed to satisfy them of these matters and they were satisfied beyond reasonable doubt that he killed the deceased, intending to kill or do grievous bodily harm to her, they would find him guilty of murder.  The judge explained that the psychiatrists' opinions were dependent on the acceptance of Rahim's version of events from February 2004 up until the killing. 

[35] The judge summarised counsel's competing contentions.  The prosecution case was that the validity of the opinions of Dr Weppner and Dr Varghese was underpinned by Rahim's version of events.  There were real questions about the truthfulness of that version; the jury would not accept it and on balance would not accept the opinions of Dr Weppner and Dr Varghese, which were based on the truthfulness of Rahim's version.  The defence case was that, if satisfied beyond reasonable doubt of the elements of the offence of murder, the jury would be satisfied on the balance of probabilities that the defence of diminished responsibility reduced the verdict of guilty of murder to one of guilty of manslaughter.  Factors supporting Rahim's version of events were as follows.  Tea and biscuits were found on a table under the house after the killing.  The clothing of Rahim and the deceased was positioned in a way that suggested they were in the bedroom planning to have consensual sex.  Rahim gave evidence that they had sex on the floor on 6 May 2004 and that he made a love bite on her neck.  Pathologist Dr Lampe's evidence and a photograph of the deceased gave some support to that account.  Rahim's DNA was detected in scrapings from underneath the deceased's fingernails which were consistent with her touching him.  Based on Rahim's version of events, the opinions by Dr Weppner and Dr Varghese established that Rahim was acting under diminished responsibility when he killed the deceased.

[36] The judge made plain that the contentious factual issues were for the jury to resolve in determining whether Rahim had established the applicability of s 304A on the balance of probabilities.

The appellant's contentions

[37] Rahim's counsel in this appeal contends that the jury, after considering the whole of the evidence, must have been satisfied on the balance of probabilities that Rahim's version of the events preceding the killing was largely reliable; and that Rahim was suffering from a major depressive psychiatric illness at the time he killed the deceased; and that this illness substantially impaired Rahim's capacity to control his actions at the time of the killing. 

[38] He contended that Rahim's version of events was supported by other evidence.  There was an innocent explanation for him to take the knife to the deceased's home on the day of the killing; he was packing his possessions.  Evidence from his daughter, Ms Whittle, and Mr Krippner supported his claim that he was using the knife in packing his possessions into the cardboard drums.  It was uncontentious that Rahim had suffered a major weight loss in the period preceding the killing.  This was a factor consistent with a major depressive illness.  The deceased's clothing had been removed and was untorn, consistent with preparation for consensual sexual activity, as Rahim claimed in his evidence.  Rahim's mother supported his version of events in that she saw the deceased take him a juice on a tray and she later saw the deceased and Rahim hugging and crying.  This behaviour of the deceased was inconsistent with someone who claimed to be frightened of him.  Rahim's evidence that he gave the deceased a love bite during consensual sexual intercourse two days before the killing was supported to some extent by the post-mortem photograph and the evidence of the pathologist.  If the jury accepted Rahim's version of events preceding the killing, then they must also have accepted the opinions of Dr Weppner and Dr Varghese, supported to some extent by the evidence of Dr Hunt and Dr McVie, that when Rahim killed the deceased he was acting under diminished responsibility within the terms of s 304A.

[39] Rahim's counsel made no complaint about the primary judge's directions to the jury.

Conclusion

[40] The issues to be resolved by the jury which are contentious in this appeal were difficult ones.  They were matters about which different juries may have come to different conclusions.  There was a reasonably convincing body of evidence to demonstrate that Rahim was depressed when he killed the deceased, and probably to the point of suffering psychiatric illness. 

[41] Dr Fama, however, did not consider that Rahim's depression amounted to a psychiatric illness.  In his opinion, Rahim's suicide notes reflected his abnormal state of mind but showed that he did not relinquish control because of depression when he killed the deceased.  Dr McVie, who treated Rahim shortly after the killing, did consider that he was suffering from a major depressive illness, but she was not persuaded on the balance of probabilities that this depressive illness amounted to diminished responsibility under s 304A.  Dr McVie's evidence had particular weight because she saw Rahim very soon after the killing and was his treating psychiatrist. 

[42] It was only the evidence of Dr Weppner and Dr Varghese which was capable of showing that, on the balance of probabilities, Rahim was, at the time of the killing, suffering from a major depressive psychiatric illness which caused him to lose control of his actions in killing the deceased.  The opinions of both Dr Weppner and Dr Varghese were, on one level, persuasive.  But their opinions were dependent on the reliability of Rahim's version of events preceding the killing.  If the jury did not accept Rahim's evidence that the deceased, whilst apparently telling others she wished to end the relationship and obtaining domestic violence protection orders against him, was talking to him about their reconciliation and engaging in consensual sexual intercourse with him, then the evidence of Dr Weppner and Dr Varghese did not support the defence under s 304A.  The jury must have clearly understood from the judge's directions and counsel's addresses that these issues were at the heart of their deliberations.  The jury considered their verdict for almost eight hours. 

[43] Rahim's counsel has referred us to some aspects of the evidence supporting Rahim's account of events preceding the killing.  But these matters did not compel the jury to accept his account.  The deceased's contact with Rahim, despite the protection orders she had taken out against him, was understandable in the context of their 13 year old son who lived with her, and their mutual desire for Rahim to remove his property from under the deceased's home.  The evidence from Rahim's mother as to the fruit juice and hugging and crying was as consistent with the deceased acting with some compassion towards the depressed Rahim as with Rahim's inherently improbable version of events.  Although the scientific evidence was not conclusive on this point, Rahim's claim to have had sex with the deceased on the day before her death was not supported by it. The fact that the deceased's clothes were removed in the bedroom without tearing prior to the killing was no more consistent with Rahim's version than it was with him forcing her to remove her clothes at knifepoint.  There was some evidence to support Rahim's explanation for taking the knife to the deceased's home on the morning of the killing.  There was other compelling evidence of Rahim's burning jealousy of the deceased's new and loving relationship with Stuart Pengelly and that he wanted to kill her.  The jury were entitled to have grave doubts about the accuracy of Rahim's inherently improbable account of the deceased's behaviour towards him in the days preceding the killing and to reject it.  If so, the opinions of Dr Weppner and Dr Varghese did not support a finding of diminished responsibility under s 304A.  The jury would then have been left with no expert evidence to the effect that Rahim was probably suffering a mental illness at the time of the killing which substantially impaired his capacity to control his actions in killing the deceased. 

[44] It follows that, after reviewing the whole of the evidence, I am confident that it was well open to the jury to be satisfied beyond reasonable doubt that the defence of diminished responsibility was not established on the evidence on the balance of probabilities and of Rahim's guilt of murder.

[45] It follows that the appeal should be dismissed.

[46] HOLMES JA: I agree with the reasons of the President and with the order her Honour proposes.

[47] WHITE J:  I have read the reasons for judgment of the President and agree with her Honour that it was open to the jury to be satisfied that the defence of diminished responsibility was not established on the evidence and that the appeal should be dismissed.