SUPREME COURT OF QUEENSLAND

Table of Contents

REASONS OF McMURDO P

The Appellant's Contentions........................................................................................ 4

Section 304A...................................................................................................................... 4

The Prosecution Case...................................................................................................... 5

The appellant's interviews with police ............................................................................. 5

The evidence of the appellant's father .............................................................................. 7

The evidence of the appellant's mother ............................................................................ 8

The evidence of the appellant's sister ............................................................................. 10

The evidence of the appellant's younger brother ........................................................... 11

The evidence of the appellant's sister-in-law ................................................................. 11

The evidence of the appellant's older brother ................................................................ 12

Other evidence................................................................................................................ 13

The Defence Case.............................................................................................................. 13

The appellant's evidence................................................................................................. 14

Dr Nielssen's evidence.................................................................................................... 20

Dr Varghese's evidence .................................................................................................. 24

The Prosecution Rebuttal Case ....................................................................................... 27

Dr Reddan's evidence ..................................................................................................... 27

Dr Voita's evidence......................................................................................................... 31

The Judge's Summing-up ................................................................................................ 36

Conclusion ......................................................................................................................... 41

REASONS OF MUIR JA ..........................................................................44

REASONS OF ATKINSON J ...................................................................44

1. McMURDO P: The appellant was convicted on 1 May 2009 after a seven day trial of murdering his two year old nephew on 25 March 2006.  He was 26 at the time of his conviction and 23 at the time of the offence.  He appeals against his conviction contending that the guilty verdict is unsafe and unsatisfactory and not according to law, that is, "it is unreasonable, or can not be supported having regard to the evidence" under s 668E(1) Criminal Code 1899 (Qld).

The Appellant's Contentions

2. At the commencement of the trial, the appellant admitted "that on the night of the 25th of March 2006 he caused the death of [his nephew] by cutting his throat whilst he was asleep in the back of the family car". The relevant issues for the jury's determination at trial were whether the appellant was of unsound mind under s 27 Criminal Code and, if not, whether he was deprived of a relevant capacity or was suffering from an abnormality of mind such as to cause a substantial impairment to a relevant capacity under s 304A Criminal Code.  The appellant's counsel concedes that, on the evidence at trial, the jury were entitled to reject the defence of unsoundness of mind under s 27.  He contends, however, that, after reviewing all the relevant evidence at trial, it was unreasonable for the jury to not be satisfied on the balance of probabilities that the appellant's version was largely reliable, and that he was, at the time of the killing, suffering from a major psychiatric illness, schizophrenia, amounting to an abnormality of mind.  As a consequence, he contends, the appellant's capacity to control his actions or to know that he ought not do the act, was substantially impaired under s 304A.  He contends that the appeal should be allowed, the verdict of guilty of murder set aside and instead a verdict of guilty of manslaughter entered based upon diminished responsibility under s 304A.

Section 304A

3. Section 304A relevantly provides:

" 304A Diminished responsibility

(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 … which causes death in such a state of abnormality of mind (whether … 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 difficult to comprehend that a young man like the appellant, who was suffering from schizophrenia, would kill his defenceless, sleeping two year old nephew in circumstances other than where one of the capacities referred to in s 304A was substantially impaired. For that reason, before directly discussing the appellant's contentions, I have set out in some detail the relevant and tragic evidential matrix upon which the expert opinions are in part based, and passages from the judge's summing-up.

The Prosecution Case

5. The appellant was the second of three sons. He also had a sister. On the early evening of 25 March 2006, the appellant's older brother, his wife and their two year old son (the deceased) visited the appellant's parents' home outside Bundaberg to share their excitement about the older brother's acceptance into a tertiary training course for a Christian ministry. The appellant lived in a caravan next to his parents' house. The deceased was asleep in his car seat in the older brother's car. His parents understandably decided not to disturb the sleeping child and positioned the car so that they could watch him from the house. Shortly afterwards they checked him after noticing that the internal car light was on. The little boy had suffered a massive injury to his throat and was bleeding profusely. He died on the way to meet the ambulance.

6. It is uncontentious that the appellant slashed the child's throat with a knife before walking to a neighbour's property.

7. A woman who lived in the neighbour's premises and saw the appellant on the night of the killing gave the following evidence. The neighbour asked the appellant why he was so upset. The appellant responded, "Oh, I've done something wrong and my brother's after me. … I had an argument with him. … Can I come in?" The neighbour invited him in and the appellant asked to stay the night. The neighbour wanted help with some heavy work the next morning and the appellant suggested he stay the night so he would be ready to help early. The neighbour agreed. She made up a spare bed for the appellant. The prosecutor showed her photographs of the bed with several knives laid out on it. These were not on the bed when she made it up. The appellant drank home brewed beer with the neighbour into the early hours. Police telephoned the following morning and the appellant surrendered himself to police.

8. A police officer who arrived at the neighbour's house early on 26 March 2006 was shown to the room where the appellant stayed the night. The bed was made up. When he moved a pillow, he found four knives laid out on the bed and arranged for a photograph to be taken.^[1]  One of the knives was a folding knife. 

9. The appellant's former employer received a phone call from him on the morning after the killing at about 6.15 am. At first the appellant sounded the same as usual, but later he sounded a little agitated. The appellant wanted his former employer's son (his friend) to pick him up from the neighbour's place. He arranged for his wife to pick up the appellant. Police intercepted his wife's vehicle before it arrived.

10. The investigating police officer stated that there was nothing about the appellant's demeanour or behaviour that caused him to have any concerns about his mental health or mental wellbeing when the appellant surrendered to police at the neighbour's house.

The appellant's interviews with police

11. The appellant was interviewed by police the following day, initially in a police car on the way to the police station from the neighbour's house. When asked what happened to the deceased the previous night, the appellant responded:

"What did someone try to hurt him or something?"

POLICE OFFICER:  Why don't you know what happened to [the deceased] last night?

APPELLANT:  I wasn't really there.

POLICE OFFICER: You weren’t really there. You weren’t really where?

APPELLANT:  Around there.

POLICE OFFICER:  When you’re referring to there what are you talking about?  Where are you talking about?

APPELLANT:  At my caravan."

12. The police officer asked the appellant how his jeans got wet and the appellant responded that he washed them the previous night at the neighbour's place because he "felt a bit sweaty". He denied seeing his older brother, the brother's wife and the deceased at his parents' house the previous evening and he denied killing the deceased. He said he tried to avoid his brother. He did not see the deceased often; did not "really like him"; and did not like going near any kids at all. He did not like "their crying and shit". He agreed to a police suggestion that he got cranky with the deceased because he was having an argument with his brother. He continued to deny touching the deceased. The police officer asked him whether the blood on his shirt was the deceased's. He said he did not think so and was pretty sure it would not be.

13. The appellant asked the police officers to stop the police car because he wanted to say something. The police asked him what he wanted to say and he responded: "Yeh ah, I think I might have cut his throat." He explained that the deceased was in the back of his brother's car at his parents' house and continued:

"I may have cut his throat …

Yeh, I didn't really want too but I was too um (unintelligible), that's the first thing I could think of doing.

POLICE OFFICER:  Had you had an argument with [the brother].  had you or had you been talking to [the brother] about something?

APPELLANT:  Yeh.

POLICE OFFICER:  What were you talking to [the brother] about?

APPELLANT:  Um just kept on going about this and that and me giving his son a whack.

…

POLICE OFFICER:  Okay, what did you use to cut [the deceased's] throat with?

APPELLANT:  A knife."

14. He said the knife was a folding pocket knife which he kept in his caravan. His uncle gave him the knife when he was "pretty young" and at school. His brother was on the phone and said "ra, ra, ra (unintelligible)". The appellant had a knife in the kitchen and "was worried about what was going on". He then cut the deceased's throat with the knife and "just got out of there".

15. The police officer asked:

"Why did you hurt [the deceased]?

APPELLANT:  Something just told me to."

16. The police officer asked:

"Had you sharpened the knife, or what did you use the knife for before?

APPELLANT:  Ah yeh I think I might have."

17. He took the knife to the neighbour's house because he was "a bit worried". The police officer asked:

"Would you have done it if I was there or if this Detective was sitting out the front?

APPELLANT:  No.

POLICE OFFICER:  How come?

APPELLANT:  I probably …

POLICE OFFICER:  What about if [the brother] was sitting in the car or if [the brother's wife] was sitting in the car would you've done it then?

APPELLANT:  Nah.

POLICE OFFICER:  No?

APPELLANT:  No."

The evidence of the appellant's father

18. The appellant's father gave evidence which included the following. On the night of the killing, everyone in the family, apart from the appellant, was excited about the older brother's news of his acceptance into theology college. The appellant was unemotional, neither pleased nor distressed. The appellant and his older brother had not got on very well over the previous 12 months or so. The appellant did not like children in general. He had not seen the appellant ever interacting with the deceased. About six months earlier, the deceased and his parents had resided in the family home for some months as they were in financial difficulty.

19. The appellant was a compliant and well-behaved child who wanted to please everyone around him. In his early years, he was a slightly above average student. At high school, he had "several mental health episodes". He did not finish the second half of year 9. He seemed to regress into childhood. After treatment from mental health practitioners and a naturopath, he seemed to recover and initially progressed through a normal adolescence. But that changed. Sometime after he commenced a school-based apprenticeship as a builder, his parents found him attempting to hang himself with a power cord. On another occasion, he jumped out of his mother's car which was travelling at 100 kph. He received only some gravel rash-type injuries. On a camping trip, he was injured in a fire and he was treated for burns and other things. His personality changed as he became more self-absorbed but that improved with maturity. In his late teens, he was involved in a motorcycle accident and suffered a head injury with a resulting gradual change in personality. Subsequently on a trip from Brisbane to Bundaberg, the appellant indicated he wanted to return to Brisbane and when his father did not comply, the appellant stabbed himself in the face with a can opener.

20. The appellant did not complete his apprenticeship. He refused to return to his studies at TAFE, saying "They're going to cut my head off if I go back there." In May 2002, the appellant was hospitalised in a mental health unit but he absconded to his sister's place where his parents collected him. Both the appellant and his family lost faith in the mental health system. His parents took the appellant home to live with them and to keep him out of trouble. From time to time, the appellant moved out of home and was sometimes in trouble with the police. His parents accepted his demeanour, personality and actions "as just him". Sometimes he would twitch and his eyes would roll back into his head. Sometimes he would become quiet and withdrawn.

21. His mental health did not improve. From time to time, they took him to doctors and urged him to get help. On one occasion, a doctor prescribed anti-depressants. The appellant told his parents that the doctor said it was alright for him to use marijuana. The appellant's parents were unsuccessful in obtaining successful medical treatment for the appellant's problems.

22. There was ongoing friction between the appellant and his older brother. Generally, there was very little interaction between them, but when the brother married, the appellant was his best man.

23. The appellant was jailed for two months in November 2005. On his release in early 2006, he returned to the family home. He was on medication which he continued to take for a time, but there was no noticeable improvement to his mental health.

24. On the day of the killing, the appellant appeared a little strange and stressed.

The evidence of the appellant's mother

25. The appellant's mother gave evidence which included the following. On the night of the killing, the appellant had been watching television in his parents' house with his younger brother. The appellant's older brother and his wife arrived with the good news about his acceptance into college. His parents were "ecstatic" and enthusiastically congratulated him. The mother did not notice the appellant at this time. Later, she saw the interior light come on in the car and alerted her daughter-in-law. They raced towards the car. The mother saw a "shadowy silhouette kneeling on the front passenger seat into the back". She did not see the appellant again that night. The deceased was harnessed in his car seat but leaning out of it. She went to the deceased child's assistance and called others to phone for an ambulance.

26. The appellant and his older brother seemed to have a "love-hate relationship". They had fights but the appellant seemed to be in awe of his older brother. Sometimes they had physical fights, the most recent being in about October 2005 when the family realised that the appellant had killed a family kitten. She wanted the appellant to receive help for his drug and alcohol issues and talked to him about attending a church-run rehabilitation centre, but in the end the appellant did not attend. The older brother was distressed at the appellant's conduct in killing the kitten and they fought. The appellant suffered a black eye and then had nothing to do with his older brother.

27. The appellant drank heavily and she suspected that he also used drugs. His use of intoxicating substances changed his personality and made him "totally selfish and not at all like the person that – that we knew". The appellant's relationship with the deceased was "not loving" and he had very little interaction with the deceased. The appellant's relationship with the older brother and his wife was also distant.

28. She confirmed the appellant's easy-going nature as a child prior to his changed and troubled personality which emerged in year 9. She arranged for blood tests and his behaviour improved after attending a naturopath. The following year, he again became distressed and was unable to sleep. He disappeared for some hours. He returned home but he was in a poor mental state. His family had to dress him and take him to a doctor. He had not been drinking alcohol. The hospital wanted to admit him into a mental health unit. His parents decided, however, to take him home. The appellant wanted the entire family to stay at home with him for some weeks. With hindsight, she felt the family should have then taken him for medical treatment. He again received naturopath treatment which again helped for a time. He appeared to regress to childhood and spoke in a strange high child-like voice. Subsequently, the family took him to receive mental health treatment when he appeared suicidal.

29. On one occasion when she was driving the appellant, he took off his seatbelt and jumped out. He said he wanted his older brother. She drove home, picked up the brother and took the appellant to the mental health unit. He was admitted to hospital on that occasion and on a couple of other occasions.

30. At his request, the appellant subsequently returned to school but he developed a severe headache and was placed in sick bay. After a conversation with the principal, the family decided to allow the appellant to stay home for the rest of the year so that his sister could finish year 12 without distraction.

31. About a year later he had a motorbike accident and suffered a head injury and scarring. His personality changed and he became introverted and distant. It seemed as if "a certain spark" had gone.

32. On an occasion at a church camp in Brisbane, he ran up to her tent in a distressed state and refused to leave her.  He appeared to be mentally ill and did and said "weird things".  She drove him home to Bundaberg but on the way he pushed a can opener into his eye.  The family took him to hospital where his physical injuries were treated.  The family did not disclose that he had mental problems. 

33. When the appellant was about 18, after his motorbike accident, he and his older brother attended a party. The appellant walked into the bush and threw a large rock in the air which landed on his head.

34. On another occasion, he telephoned her to pick him up from a hotel. By the time she had arrived, he had passed out at the back of the hall.

35. Over the years she took him "so many times" to various medical practitioners for what she understood were mental health issues. At one point he was admitted into a mental health unit at a hospital as an involuntary patient, but he escaped. On other occasions his mental health seemed better.

36. In the middle of the night before the killing, the appellant telephoned her. He was not rational. He continued to telephone her every half hour asking to come home. She refused. She noticed he was "edgy" and not "like a normal person". When she picked him up from his sister's home the next day, she drove to his grandmother's. She was focusing on the deceased and his mother. The appellant was "edgy again". He asked her to take him home, complained about the noise, and said that he could not handle it. They drove home at about 4 pm waiting for the sun to set on their Sabbath (Saturday) so that they could shop. When she returned home he came to her bedroom where she was reading. He appeared distressed and she felt that he "was in a dark place". She gave him a hug and said that she would take a day off on Monday and take him to the doctor because he needed help. He pushed her away and told her that it was okay and not to worry about him. He returned to his caravan. He did not smell of alcohol or drugs and did not seem intoxicated. She knew he needed help. He put his hands on each side of his head and rocked back and forth.

37. When the appellant was imprisoned for offences in November 2005, he was in a "really bad way" but he then improved. On his release from prison in early 2006, his mental health improved for a time but she was unsure whether he remained on medication. His relationship with his older brother was sometimes strained but at other times they got on well: the appellant was his best man in 2003.

The evidence of the appellant's sister

38. The appellant's sister gave evidence which included the following. She was married with two children aged nine and seven. The appellant sometimes played with her children, depending on his state of health, but he did not get on with the deceased. The sister asked the appellant if he would be attending the deceased's second birthday party. He said he would not and that he "can't stand that kid and he hates [the deceased] or something to that effect".

39. The appellant's relationship with his older brother sometimes involved "sibling rivalry, but at times they got on".

40. The appellant went through periods of heavy drinking. She suspected he may also have been taking drugs because of his peculiar behaviour at times. She thought she may have seen needle marks on his elbows. He would sometimes drink heavily until he passed out. When he was anxious and agitated he would chain smoke. He was sometimes on medication for his mental health. The medication was at times effective; at other times he did not take it. He sometimes spoke about suicide. She recalled an incident at her parent's home where the family pet kitten was mutilated and left hanging on the fence. The appellant seemed to accept responsibility. He did not consider that what he had done was a "big deal". The appellant enjoyed heavy metal music. She once asked him how he had scratches on his arms. He said he had strangled a cat because it was annoying him.

41. On the Friday before the killing, he wanted to go to a party but had trouble operating the phone to call for a taxi. She had to do it for him. He had been very unwell in the preceding weeks. She could not remember whether he was also intoxicated. He left the house in a taxi. She saw him the next day at about 4.00 or 4.30 pm. He did not seem very well, was pacing up and down and wanted to go home. Their mother picked him up about 6.00 pm. He did not say goodbye. She heard about the killing at 1.00 am the following morning.

42. In cross-examination, she agreed that she had only heard the one hostile comment from the appellant towards the deceased. She confirmed that when the appellant was about 13 he became depressed and did not want to go to school. He stayed at home in bed for what could have been months. A couple of years later when he was about 15, he had an episode when he was delusional. He came out of his room naked; he was dribbling as if he was handicapped; he wanted his family and he was seeing things. He could see demons crawling over his body and he thought he could see a snake and a banana floating in a corner of the ceiling. On occasions, he received medical treatment and medication. Sometimes his behaviour improved.

43. In re-examination, she identified a letter she received from the appellant soon after the killing. The handwritten letter^[2] was read to the jury.  The letter was clearly written from prison.  It was legible and expressed coherent thought processes and reasoning.  He stated that he was missing his mother, his sister and his younger brother.  He was shifting "to the mental ward in Brisbane" the next day and was reading the Bible.  He asked his sister to pray for him.  It talked about his activities including eating chocolate at Easter, watching television and his gratitude at receiving his electric guitar.  He said prison "really sucks".  He enquired about whether his parents had obtained his wallet from "the D's".  He regretted that by the time he was released from prison his sister's daughter would probably be about 18.  He wanted to remain in contact with his sister, wished her a happy Easter and asked for the mobile phone number of an acquaintance.

The evidence of the appellant's younger brother

44. The appellant's younger brother gave evidence which included the following. He is five years younger than the appellant. He considered the appellant and his older brother had a normal brotherly relationship. The appellant seemed slightly more distant from his older brother than he was from others in the family but this was not a major issue. The appellant was rather distant towards his older brother's wife and "pretty much avoided contact". The appellant was also distant towards the deceased and was never really around him a lot. He remembered the appellant saying in passing "how much he hated that kid". The appellant drank a lot of alcohol and he had also used marijuana. Once he saw the appellant purchase a white substance.

45. On the afternoon of the killing, he was with the appellant and other family members at their grandmother's house. The appellant was agitated and pacing up and down the hallway; he wanted to go home. He did not think the appellant was intoxicated. Later, he saw the appellant again at his parents' home and they both assisted in unloading groceries. He and the appellant watched a documentary on killer whales in their parents' bedroom. When the older brother and his family arrived, the appellant was in the parents' bedroom. He did not see the appellant leave the house and did not see him again that night.

46. About a month after the killing, the appellant wrote to him from prison^[3] in terms broadly similar to a letter he wrote to his sister, but which included:

"Now I ruined my life by letting [the older brother's] digs get to me.  I was on the bed with you and Mum watched that documentary about killer whales.  Know it's all over.  I'll miss out on so much [his infant niece] will probably be about 18 when I get out."

47. In cross-examination, he agreed that the appellant lived with mental illness. The appellant sometimes confided that he heard voices in his head. On one occasion, the appellant tried to kill himself in front of the family with a can opener. The occasions when the appellant became mentally ill seemed to coincide with him stopping medication. He agreed that the appellant's agitation, which he put down to drug use, may have been because of mental illness.

The evidence of the appellant's sister-in-law

48. The deceased's mother gave the following evidence. She found it hard to have a conversation with the appellant; he did not talk much. Her husband was kind to and encouraged the appellant. The appellant had nothing to do with the deceased; he did not show him affection or play with him. When the appellant killed a family cat, he and her husband fought. She and her husband stayed away from the family home after that incident. But when they heard the good news that her husband had been accepted into theology college they came to tell his parents. She was eight months pregnant with their second child at the time of the killing.

49. In cross-examination she agreed that in the months and weeks preceding the killing, she could discern that something was not quite right with the appellant and she was a little fearful of him.

The evidence of the appellant's older brother

50. The appellant's older brother and father of the deceased gave evidence which included the following. He was six years older than the appellant. For many years he had a very good relationship with the appellant. This changed as the appellant became older and unresponsive. The appellant's behaviour progressively worsened after his motorbike accident. He confronted the appellant about his lifestyle but tried to maintain a brotherly relationship. The appellant shut him off and would not talk to him. The appellant was one of his best men at his wedding in 2003. At that time the appellant was in good mental health although on medication. His wife tried very hard to engage the appellant in conversation but he would never talk to her. After the deceased was born, the appellant had nothing to do with the child.

51. The older brother was particularly disturbed by the appellant's torture of a cat at his parents' property. On another occasion, the appellant had claw marks on his arms as a result of him strangling a cat. The family cat had been nailed to a fence post, disembowelled and burnt. When the appellant arrived home and was confronted by the family about killing the cat, he treated the incident as if it was unimportant. He said something like "Cats, they're nothing." The appellant said he was trying to give the cat some food and it scratched him. The older brother asked him how he could enjoy killing innocent animals. The appellant responded "What, so what?" and shrugged his shoulders. The older brother responded, "Well, how would you like me to choke you?" and grabbed the appellant around the throat. They fought and the appellant got the better of the altercation. His mother decided that instead of ringing the RSPCA the appellant would go to a rehabilitation centre but in the end he did not.

52. In about 2000, the older brother was living in his parents' home with the appellant and became concerned about the appellant's behaviour. He told him to show respect to their parents and to help out around the place. The appellant became defensive, kicked a hole in a dining room table and began to fight with his brother. On this occasion, the appellant got the worse of the altercation. The appellant then took up martial arts and fitness training. A few months later the two brothers drove a hire car to Brisbane to look for work and he thought they were mates again. 

53. When the deceased was about 18 months old, the appellant looked after their home whilst they were away. When they returned they were annoyed to find him listening to "death metal and smoking bongs" of marijuana. The older brother was annoyed that the appellant was smoking inside his house. On other occasions, he observed the appellant smoking marijuana and drinking alcohol. Sometimes the appellant reacted badly to smoking marijuana whilst drinking alcohol. He sometimes became paranoid and it was clear he was imagining strange scenarios.

54. As the appellant was making his parents' life miserable, the older brother had a caravan set up outside and told the appellant to move into it. The appellant was not happy about this.

55. On the night of the killing, the appellant came out of his parents' bedroom and greeted him. He thought that he told the appellant of his acceptance into theology college and the appellant responded positively. Later he saw the appellant leave his caravan where "death metal" music was "blaring". The older brother asked, "You haven't given up on God, have you?" The appellant responded, "no, nuh." The older brother said, "That music gets inside your head, you know. It messes you up." The appellant said something and walked off. That was his last contact with the appellant before the killing.

56. In cross-examination, he agreed that he knew the appellant had struggled with mental illness over many years. When the appellant had the motorcycle accident, there were noticeable changes to his behaviour. He became more withdrawn and less sociable and engaged in episodes of self-harming. On one occasion, he pulled his two front teeth out with a pair of pliers. The appellant's mental health deteriorated further in the two years preceding the killing. On the night of the killing there was nothing in the appellant's behaviour to suggest he was intoxicated. He seemed no different than usual. The older brother denied sexually assaulting the appellant in the past.

Other evidence

57. A prison officer gave evidence of the following conversation between the appellant and the manager of the Maryborough Correctional Centre where the appellant was first imprisoned after the killing. The manager asked the appellant if he had committed an offence and the appellant responded, "Yes, I did." The manager asked if he was affected by alcohol or drugs. The appellant responded affirmatively to both. The manager asked about his relationship to the victim. The appellant said he was the victim's uncle. The manager asked whether he had been having any trouble. The appellant responded that he had been having some trouble with his brother.

58. In cross-examination, the prison officer stated that the manager had this conversation with the appellant because of the type of offence with which he had been charged, concern about his safety within the prison and whether he ought to be transferred elsewhere. The appellant did not have concerns about his safety.

59. Samantha Johnson gave evidence that on Friday, 24 March 2006 (the day before the killing) she was at home when her friend, Simone Bawden, arrived with the appellant in the early afternoon. They were playing a card game. He had been drinking and smoking marijuana and he seemed adversely affected. She told him she did not want "that stuff" in her house. The appellant responded that he had already finished it and there was none left. The appellant continued drinking a standard size bottle of spirits which was half full. When he left at about 3.00 pm he had consumed the contents of the bottle of spirits. On Saturday, 25 March 2006 (the day of the killing) the appellant came to her place about five times during the day. He was looking for his wallet and he wanted to know where Simone was. She told him that Simone did not live there. He said he wanted his wallet to go and buy some "weed". He seemed to have sobered up a bit from when she first met him the previous day.

60. In cross-examination she agreed that his behaviour was unusual and odd. He was deliberately playing cards to lose. He gave Simone $150 for a stuffed toy which was on the floor and to which he took a fancy. The appellant seemed to be in a world of his own. His behaviour the next day in persistently returning to her house began to frighten her and she was considering calling the police.

The Defence Case

61. The appellant gave evidence and called evidence from two psychiatrists, Dr Varghese and Dr Nielssen.

The appellant's evidence

62. The appellant was 27 years old at trial. He grew up on a farm with his parents, older brother, sister and younger brother. He enjoyed primary school. At high school he thought he was a little below average but he enjoyed sport. When he was at high school, he had an episode of schizophrenia, hearing voices. This scared him. When he was 17 years old and living in his caravan, he remembered hearing voices laughing at him and telling him that it was too late for him. He was not sure whether the voices belonged to other people or to a ghost.

63. He remembered the episode about which his mother gave evidence. He was 13 years old and ran out into the cold night air. He thought his "parents had been raptured in the secret rapture … they had gone" and he ran out after them to catch them. He thought they had gone up the mountain. It was hard to remember what was going through his head back then. He had bad dreams and became scared at this time. He remembered having bad dreams and delusions.

64. He sometimes felt the whole world was against him and making fun of him. He wanted to be alone and did not like being around lots of people. He took up sport and training to distract himself from the hallucinations, thoughts and voices. The voices made him think people were trying to get him. Once when he was picked up from TAFE, voices told him that they were going to come and hunt him down. He called one of his father's friends who calmed him down. He tried to act normal despite the voices. He took up drinking alcohol and taking drugs so that he could use this as an excuse for his odd behaviour.

65. In year 11 he had a motor bike accident, landed on his head and suffered brain damage. He spent three days in Bundaberg Hospital and was "pretty unconscious".  From that point, he found it harder to make conversation with people and his mind was a bit scattered.  He continued to hear voices.  He thought the people at TAFE "were going to get [him]".  This was because the voices told him they would hunt him down.  He thought they were going to kill him.  He was scared and did not return to TAFE. 

66. Sometimes he drank alcohol and smoked pot so as not to hear the voices. The voices left him alone a bit and he was "a bit numbed" when he drank alcohol and smoked pot. After he left high school, he joined a band and was introduced to "speed". At one point, his father took him to a mental health clinic and he was placed on medication which seemed to resolve a lot of his problems. The medication sedated him and "Cleared the voices a bit". After finishing school, he found it very hard to control his thoughts and was still hearing voices. He found martial arts and running helped him feel better and stay positive by blocking off all bad thoughts. He also took "Drugs and things like that". Some days he was able to work well and other days he could not focus. He was a bit depressed and always hearing voices.

67. Once when he was outside a nightclub, the voices told him to kick a person even though he had never met this person before. The voices said, "Oh, I want to see some blood" and things like that. He would cut himself with knives in front of the mirror to feel the pain. The voices inside his head were harder to understand than the voices outside his head.

68. When he was at a camp in Brisbane, the voices told him, "Just run to your mum and everything will be all right" and so he did.  When the family was in the car returning to Bundaberg, he thought there was a truckload of demons coming to take his life and torture him to death.  He wanted a "quick exit" and stabbed himself in the eye with a can opener.  He was trying to put the can opener into his brain so as to have a quick death.  His little brother pulled his hair and took the can opener off him.  There was a lot of blood.  He thought it was "pretty good" that his little brother stopped him from trying to kill himself.  He was taken by his parents for medical treatment but he did not trust the doctor; he thought he might also be out to get him.  He felt a lot better when he got home.  He drew comfort from being with his parents. 

69. On another occasion, he tried to hang himself. He felt depressed; the thought the world was against him and that people could hear his thoughts. On another occasion, he tried to get into his father's gun cabinet to defend himself from an army which the voices said was on its way to get him. He felt lost. He once put a bullet in his mouth and then placed the bullet on the stove to try and make it explode. He felt depressed and was "sick of hearing voices and things like that".

70. During these episodes, his father took him to appointments at the Bundaberg mental health hospital. The prescribed medication helped. After a while, he decided not to take his medication because he thought he "could be normal". The medication was affecting his ability to walk and he was concerned that it might affect his ability to talk. He did not tell people about the voices he heard because he was worried about what people would think. He had thoughts of murdering George Bush who he believed was sending people out to kill him.

71. Once when his mother was taking him to hospital, he was very anxious, undid his seatbelt and jumped out of the car as he wanted to go back home.

72. He described his relationship with his family, including with his older brother who was his hero when he was younger, as "good". As he got older, his relationship with his older brother was "up and down". When the appellant was about 19 years old, they had a fight during which the appellant kicked a hole in the kitchen table. Half way through the fight the brother sexually assaulted him, "sort of raped" him, and the appellant ran into the bush. On another occasion he fought with his brother over the appellant strangling a cat. He had given the cat some food and it scratched him. He could not remember much about what was going on in his head at that time. His older brother said that he would strangle the appellant like the appellant strangled the cat. His older brother and his wife were then living in the family home but after this episode they moved out. Otherwise his relationship with his brother was pretty good. The appellant also liked his older brother's wife but he did not like to talk to her too much. He preferred to keep to himself; he needed a bit of space.

73. He considered that his mental health issues impacted on his relationship with his family. In the months preceding the killing, voices spoke to him about "cutting a throat and things like that". Once when he was sitting beside a fire, a voice outside his head dared him to kill his other nephew. On another occasion, when he was in his caravan he heard a voice tell him to kill his mother. He told the voices he would not do this. The voices made him feel distressed and he tried to distract himself from them by running or playing sport. He also found that talking to people helped him.

74. He remembered an episode when he had been killing cane toads and he also killed a cat. He could not remember exactly was going on in his head but he was hearing voices saying "Maybe I do know you." He was not sure what it meant. He felt the world was against him. When his family confronted him, he was sorry to have upset them by killing the cat.

75. He did not spend much time with the deceased. The appellant was pre-occupied with the voices which spoke of gruesome things like wanting to see blood and wanting to kill people. He did not know how to control these voices. He tried to stay away from the deceased.

76. On 18 November 2005, he was feeling a little bit stressed and as if the world was against him and people were making fun of him. He did not have a proper grasp on reality and was a little bit delusional. He was at Centrelink. He thought the person in front of him, whom he did not know, was talking about him and "paying out on" him. Another man, whom he did not know, stared at him and the appellant thought this man might fight him. The appellant hit both men. The police charged him with these offences. A week later he was sentenced to two months imprisonment which he served at the Maryborough Correctional Centre. When he was in custody at the watch house he heard a lot of voices and howling. He was treated by a psychiatrist and placed on medication. Towards the end of his period in custody, his mental health improved. He was not as depressed and he felt better inside. His thoughts slowed down although the thoughts and the voices were still present. When he was released from prison he stayed at his sister's place for a week. He was prescribed medication which he took until he thought he could do without it. He worked part-time in the bush with his boss and then returned to his parents' place where he lived in the caravan. His mental health deteriorated. He "tried to self-medicate with alcohol and stuff". This initially helped but later made it worse.

77. On 24 March 2006, he was not feeling too bad. He went into town for an appointment with community corrections. He could not find his little brother or the family car. He went to the bottle shop on the way to his sister's and bought a bottle of spirits. He met a friend and went to his place. They decided by buy some coke. He met Simone, got sidetracked and went to her place where they played cards with Samantha, whom he had not previously met. Simone took his wallet and they agreed to meet up later at a party where she would return it. His mental health for the first half of the day was pretty good. As the day progressed, things came into his head and he left. When people told him he was weird he would often say something like, "I'm not just drunk, I'm stoned." He was not stoned on that day but he was a little bit drunk. He could not remember any conversation with Simone and Samantha about a stuffed toy and he was not "really into soft toys".

78. Later that night, he went to a birthday party. Simone was not there but he saw Samantha. He drank a few glasses of "home brew scotch". His mental health was deteriorating which was why he was drinking. He visited his sister's place. He wanted to use the phone but his brother-in-law said it was too late. He then went to his grandmother's house to which he had a key, let himself in and used her phone. He was distressed about his wallet and wanted to get it back. He could not remember making a call to his mother. His older brother came to his grandmother's house and asked if everything was alright. The appellant responded affirmatively. The older brother left. The appellant then returned to his friend's house where he had left a bottle of spirits, drank the spirits and crashed on the lounge very late.

79. He woke up next morning at about 8.00 am. Others in the house were "taking needles – speed". He did not take any drugs or alcohol and left at about 10.00 am. He returned to Samantha's to try to find Simone and his wallet. Samantha told him that Simone did not live there. She gave him some scotch. He knew some people nearby and stayed there, calling in a few times at Samantha's to see if Simone was back. His mental health during the course of the morning had deteriorated. He was having trouble controlling his "very scattered" thoughts, including "murder thoughts". He was distressed and "feeling real bad". He telephoned his mother to arrange a lift home. She picked him up and then drove to his grandmother's. At first, he stayed in the car but then went into the house and asked his mother to take him home. He was "pretty distressed". He had had enough of friends and just wanted to go home. His mother took him home and on the way said that he should "give God another chance". He was feeling sad and having horrible thoughts.

80. When he got home he went into his caravan and listened to some music. His father and his younger brother arrived home with the groceries. His younger brother had a video about killer whales and the appellant watched it with him in his parents' room. He was using his mobile phone to try to locate Simone and his wallet. His older brother and his wife arrived. He did not remember hearing about his brother's acceptance into theology college but, had he known, he would have thought this was "really good". As the appellant left to go out to his caravan, he walked past his brother who was on the phone. He thought his brother may have been organising to kill him. He did not know why he thought that, it may have been paranoia. He was feeling distressed and wanted some distance. His older brother said something to him about his music. The appellant was having disturbing thoughts and hearing voices. He could not control the murderous thoughts and the voices saying they wanted to see some blood and repeatedly telling him to "Kill the whole family". He wanted to feel better and for it all to go away. He was carrying a pocket knife in case someone attacked him. He regularly carried a knife when he went to town, especially since he had been unwell. He kept a bayonet in his caravan because he was paranoid about people coming to kill him. He sometimes heard drums in the bush and thought he might be ambushed.

81. He thought he had to cut the deceased's throat to appease the voices in his head, to make them go away and make everything better, more normal, and to have control over his mind. After he had cut the deceased's throat he did not want to believe what he had done. He could not come to terms with it. The voices were saying disturbing things. The voices were saying, "Keep going, kill your whole family, lick the knife … Come behind the fence and listen to the screams". After he cut the deceased's throat, the voices did not leave him alone.

82. He walked to his neighbour's place but missed the main path in the dark and went through the creek. He got a little lost. He did not think he could possibly have done what he had done and was trying to escape it. When he reached the neighbour's place, the appellant drank a couple of bottles of home brew but did not get really drunk. He went to the bathroom, washed his hands and felt a bit sick in the stomach. They smoked a couple of home grown tobacco cigarettes. The appellant "didn't want it to be true" and made up a story about having "a blue with [his] brother". He did not tell the neighbour the truth because he did not want to believe it. He was still hearing voices saying that his older brother was the devil. The neighbour and the woman who also lived at the premises went to bed. They made up a bed in a spare room for the appellant. They agreed that the appellant would help the neighbour do some work the next day. He went to bed and after a while collected some more knives from the neighbour's kitchen because he thought that people were going to come after him and he should be ready. He did not know where the voices were coming from. He did not sleep at all that night. He heard a lot of voices.

83. In the morning he called his boss as he thought he could do a couple of days work and that this would help him escape the voices. The police then rang the neighbour. The appellant agreed to stand out the front of the neighbour's property and meet the police. He put the knives he had collected under the pillow. He did not want to be blamed for the crime and did not want it to be true.

84. He could remember exactly what he said to the police when they arrived. At first he did not take responsibility for what he had done but then he decided he should. He still did not believe what he had done. He did not tell the police about hearing voices and feeling sick as he did not know how to explain it. Talking to the police "was a bit hard, with, uhm, thoughts and things like that coming into my head". He agreed that he had the conversation given in evidence by the prison officer but what he told them was not true. He said those things so as to explain things with short answers and minimal embarrassment; it was simply easier to say he was intoxicated.

85. Whilst in prison, he was interviewed by some psychiatrists.  He could not remember precisely the conversations he had with them.  He was placed on an involuntary treatment order when he was in the Maryborough Correctional Centre.  After a couple of years, he gradually regained his grasp on reality.  He received medication and psychiatric treatment whilst in custody and this improved his mental health.  He was still on medication, namely "600 mils of Clozapine at night and 100 mils in the morning, and… 150 mils of Sertraline."

86. He agreed he wrote letters to his sister and younger brother from prison but at a time when his mind was "just a little bit scattered". He could not remember exactly what he wrote. He thought he was looking for answers when he wrote those letters but he did not have the answers.

87. On the day of the killing, the appellant drank about a quarter of a bottle of scotch in the morning but he took no other drugs or alcohol. He did not think he was intoxicated and did not remember feeling drunk.

88. The appellant gave the following evidence in cross-examination. The prescribed medication made him feel better. Taking illegal drugs made him feel better at first. When he came out of custody in January 2006, he was on medication but stopped taking it because he wanted to be normal. With hindsight, he realised that his mental health then deteriorated. He was always looking for ways to get through his day without medication. He was apprehensive about medication because at one time an injection froze up his muscles and he could not talk or walk properly. He used the word "speed" to refer to amphetamines and methylamphetamines. When he used speed and marijuana it initially gave him relief but later made things worse. He first used speed when he was about 23, although he used marijuana whilst he was in high school. He last used speed, he thought, a couple of weeks before the killing.

89. He agreed that he probably told psychiatrist, Dr Voita, that in the last two months preceding the killing he was "pretty much high or withdrawing [from drugs] constantly"; but he heard voices "probably due to the drugs; angel dust and everything". On the morning of the killing, he drank about a quarter of a standard bottle of scotch shortly after lunch. He did not take other drugs although he was offered "ice".

90. When he spoke to Dr Varghese, he was "a little bit scattered" and could not really put dates together. His recollection was a lot clearer now. He was first introduced to marijuana at 13. He began to regularly use marijuana, not in years 9 and 10 when he was more interested in sport, but in the later years of high school. He told Dr Varghese he had used heroin but he was confused; he meant speed. Before he went to prison for the first time, he had used speed regularly for about three months. Taking speed and drinking alcohol did not make him really violent. He used to make out that he was drinking alcohol and taking drugs more than he was. A lot of the time when he was questioned by psychiatrists he looked for the shortest answer and just agreed with what people said. If he could not remember things he "just – like estimated".

91. He remembered talking to psychiatrist, Dr Reddan. He told her that, as well as drinking alcohol, smoking cannabis and using amphetamines, he had sniffed petrol; and that this was all true. He also told her that he had used hallucinogenic drugs such as taking mushrooms and "datura or angel's trumpet". He thought he "was laced with that in high school". He may have told her that he smoked it every day through most of his high school years, but in fact this was only true of a six month period. He probably was not being very accurate back then and "was just guestimating" things that he could not remember.

92. In cross-examination, the prosecutor asked whether he recalled telling a psychologist when he was in prison following the killing that, prior to the killing, he had been "self-medicating with speed, ice, angel dust and alcohol…40 times a week". He did not think he had told the psychologist that, but it was not true as he could not afford that amount of drugs. He agreed, however, that when he was in prison immediately after his arrest for the killing, he experienced withdrawal symptoms, probably more from alcohol.

93. The prosecutor suggested that when he killed the deceased he intended to kill him. He responded that he "didn't really think about it like that. … it didn't enter [his] mind…. [He] didn't know that [he] was going to do it so [he] didn't really intend to kill him". When he leant across the car seat with the knife in his hand he just thought "that was something that [he] had to do at that time".

94. The following exchange occurred:

"All right, so you might have thought it was something you had to do, but you knew what you were doing?-- Yes.

And you knew what you were doing was wrong?-- Um-----

And you knew even if it was just the voices, that you were going to kill him?-- Um, yeah, what I believed was it was not real.

The voices weren't real?-- No, what I had - what I believed wasn't real. Like, it wasn't reality. I didn't believe as far as killing [the deceased] goes to - it's just what I had to do.

Right, well, you might have believed it was what you had to do-----?-- Yes.

-----but you knew that you were killing him, didn't you? When you stuck the knife into his neck and cut his throat, you knew that you were killing him?-- Yes, but I – I didn't plan – I didn't think it over in my mind is what I'm trying to say here.

And that you did that because you were angry and upset with [the older brother]?-- Ah, no, I wasn't angry or upset with [the older brother]. I just acted without thinking."

95. In re-examination, he explained that voices were in his head telling him to "kill and things like that". He also had hard-to-control thoughts. The voices would say certain things and then he would think about what the voices said. The voices came from outside his head. On the night of the killing, when he saw his older brother speaking on the phone, he noticed a knife next to the sliding door. At that point, his older brother looked around at him. The appellant became "quite paranoid" about his safety and thought his older brother was plotting to kill him. He did not hear what his brother was saying on the phone. He did not hear any voices about this. He thought his brother might have been talking to "the Mafia or something". When he went to the car and opened the door, he knew the deceased was in there. The appellant was "a little bit scared and [he] thought [he] should do what [he] was being prompted to do".

96. In respect of the earlier killing of the cat, he explained that he executed it. He believed that killing the cat would help his mind.

97. He remembered seeing a psychiatrist, "a baldy man with…a beard", whom he had not previously met, four or five days after the deceased was killed. The appellant thought he "was getting messages from the TV" and "that everyone was hearing [his] thoughts and it was … quite stressful". He was having difficulty coming to terms with what he had done; "it was sort of embarrassing and … hard to talk". About a week later he spoke to psychiatrist Dr Voita, whom he had not previously met, by video link. By then he realised he needed psychiatric help. He felt "a little bit distressed in [his] mind. … [He] just committed murder and [he] felt … really quite awful and [he] spent a few days in the watch-house sort of crying about it". He did not really want to answer questions about what happened on the night of the killing and "just agreed with a lot of propositions that were put". He did not "want to go into it at all".

98. He saw Dr Voita about a week later when he was in a mental hospital, but he had difficulty remembering whether he spoke to her before being transferred to the mental hospital. At this time he was feeling mentally unwell. He had not met Dr Voita previously. He was conscious that others thought that he was "really weird". He had not previously met the first psychiatrist to whom he spoke when in prison. At the time of his transfer to the mental hospital, he "still had voices messing with [his] mind". Dr Voita was "friendly" but the appellant still found it very hard to talk about the killing.  He could not explain why he found it hard to talk.  In the months and years since the killing he had spoken to a lot of psychiatrists about the events of the night of the killing.  He tried to be accurate but he "didn't feel clear in [his] mind" until a couple of years after the killing.  During those years he was subject to involuntary psychiatric treatment.

99. He remembered talking with psychiatrists Dr Varghese and Dr Nielssen. He got on with them and was able to communicate well. He remembered speaking to psychiatrist, Dr Reddan, but he "suspect[ed] that she wanted to keep it all on a professional level". He recalled speaking with Dr Voita who was treating him. He considered that she probably found him hard to treat and "might be a bit biased because of the crime". He felt she resented him and did not believe him and so he did not focus as well as he should when speaking to her.

Dr Nielssen's evidence

100. Dr Olav Nielssen gave the following evidence. He has a medical degree and a Master of Criminology from the University of Sydney and since 1993 has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists, which amounts to a specialist qualification in psychiatry.  He has particular training and experience in forensic psychiatry and is presently preparing a PhD thesis on violence and mental illness.  From 1993 until recently, he was a visiting psychiatrist at New South Wales Justice Health, including 10 years at the acute ward of Long Bay Prison Hospital.  He has also worked in private practice treating and assessing people charged with criminal offences, both for the defence and prosecution, and also in some civil matters.  His principal private practice is in Macquarie Street, Sydney.  He also conducts a clinic at a homeless men's hostel where about 100 men with schizophrenia reside.  He has published a number of articles on mental illness and homicide.  The particular nature of his research centres around the fact that most homicides by the mentally ill occur before adequate treatment.  The appellant is a typical example.  He has prepared many reports and personally interviewed 70 people in respect of homicide issues involving unsoundness of mind and diminished responsibility. 

101. He interviewed the appellant in October 2008. They discussed all aspects of the appellant's medical (including psychiatric) and personal history. He reviewed Bundaberg Hospital records.  He has since reviewed records relating to the appellant's incarceration commencing in November 2005.  It was immediately apparent to him that the appellant had a very severe and disabling form of the chronic mental illness, schizophrenia.  This was partially responsive to treatment with a high dose of the drug Clozapine, a treatment normally reserved for those with treatment resistant forms of that illness. 

102. Schizophrenia is a brain disease that begins in late adolescence or early adult life. It is akin to an early life dementia in some ways. It manifests with severe mood symptoms followed by false perceptions, typically hallucinations of voices giving rise to delusional beliefs. As the illness progresses, there is almost always a degree of impairment in intellectual function in the capacity to learn, to retrieve information, to concentrate, and in social judgment and reasoning ability. There is typically a loss of motivation manifested in unkempt grooming. Sufferers often become withdrawn from social contact and say very little in conversation. They are often disorganised in managing finances, spending money without thinking about the future. They often lack capacity to understand others' emotions. As a result of these symptoms, they are often unable to hold down a job which involves communicating with other people. The acute symptoms (hallucinations, false beliefs and thought broadcasting, for example, from television) can be treated with medication, especially early in the illness. The other negative symptoms are not as responsive to medication. Sufferers must live with their disability.

103. Having observed the appellant give evidence, it was clear that his disability would be obvious even to a lay person because of his non-responsive and unemotional answers to emotionally disturbing topics. His intellectual impairment was also obvious. It was difficult for the appellant to concentrate and retrieve information. It took him longer than average to answer even simple questions. His appearance whilst giving evidence in court was slightly improved from his appearance at Dr Nielssen's interview in October 2008. He seemed to have improved since he has been treated with Clozapine.

104. Dr Nielssen observed that it is common for people with schizophrenia who are charged with criminal offences to initially deny and mask symptoms and for those symptoms to only subsequently become apparent. Schizophrenics are more prone to behavioural disturbance when intoxicated than other people. When they use cannabis and amphetamines their symptoms are more florid and persist even after the effect of the drugs has worn off, exacerbating the underlying schizophrenic illness.

105. The evidence from the appellant's family was that the appellant's behaviour manifested acute psychosis. The account of his episode in year 9 when he was 13 years old was a typical account of an acute early psychotic episode, a common early manifestation of schizophrenia. The second episode when he was in year 10 in mid-adolescence was consistent with this diagnosis. The longer a psychosis is untreated, the more likely that the schizophrenic illness will be severe. The appellant was first diagnosed with schizophrenia when in custody between November 2005 and January 2006, although he had been earlier treated at the Bundaberg mental health unit with drugs which are used only for schizophrenia. The appellant's history of severe suicide attempts was typical of someone tormented by psychotic symptoms and consistent with a sufferer from schizophrenia. Violent suicide attempts, particularly involving the eye, are diagnostic of schizophrenia.

106. Dr Nielssen was of the opinion that on the night of 25 March 2006 when the appellant killed the deceased, the appellant was acutely mentally ill. Dr Nielssen referred in detail to the appellant's medical records during his incarceration in prison from November 2005 to January 2006. These indicated that the appellant had been unwell with schizophrenia and untreated for a long time; he had very severe symptoms. His treatment in prison with high doses of medication in a drug-free environment caused some improvement of his symptoms, but he had only partially recovered when released into the community. If he did not continue his medication upon release, even without further substance abuse, he would have relapsed.

107. Dr Nielssen considered that, taking into account all the information to hand, the appellant was in the acute phase of a severe form of schizophrenic illness at the time of the killing. Schizophrenia is a disease of the brain that produces a common pattern of abnormality of the mind that is recognised in law to be a disease of the mind. At the time of the killing, the appellant was deprived of the capacities to control his actions. He was also deprived of the capacity to know that he ought not to do the act which he did not recognise as morally wrong in the context of his experience of symptoms at that moment. Dr Nielssen had other patients who had self-harmed, for example, cutting off their own hand with a power saw because the voices told them they would go away if they did it. The appellant's animosity towards his brother and his intoxication were not relevant factors in the killing which seemed entirely related to acute psychotic symptoms. This diagnosis was consistent with the appellant's evidence of a delusional belief that his older brother was part of a conspiracy to kill him; with the appellant's carrying of knives to protect himself in this period; and with his bizarre display of knives at the neighbour's house. It was difficult to get a clear account of the happenings in the appellant's mind over past years. The appellant has trouble articulating his mental phenomena. This is reasonably common amongst schizophrenic sufferers, but his difficulties in this respect were particularly severe.

108. Since the killing, the appellant has been treated for three years on a fairly high dose of Clozapine. This should have greatly improved his capacity to now provide a factual history. By contrast, he seemed quite confused when first taken into custody after the killing.

109. Dr Nielssen did not consider a diagnosis of anti-social personality was appropriate in the appellant's case as his anti-social conduct was largely secondary to his schizophrenia. He had also had a brain injury at the age of 18 which increased his inability to restrain impulses. The episode when he harmed animals appeared to have occurred at a time when he was untreated, distressed and self-harming; it appeared to be related to some disturbance of judgment and moral reasoning arising from the mental illness.

110. The appellant's conduct after the killing was consistent with him being in a confused and mentally ill state with active symptoms; he believed he was in danger from his older brother and when he arrived at the neighbour's house, he took steps to protect himself. His going to the neighbour's house was more consistent with his schizophrenic belief that he was running away from danger than an attempt to avoid detection by the authorities. In Dr Nielssen's opinion, the appellant "expected the voices to stop once he'd committed this act" (the killing) and was not able to resist the grossly disturbed logic that if he acted on the voices he would be presented "with a possibility that he would be released from [them]."

111. The appellant's subsequent letters to his siblings suggest that he was out of touch with reality when he wrote them and had no appreciation of what he had done in killing the deceased. They show very little about his mental state at the time of the killing. The appellant's denials of involvement in the offence simply show his impaired judgment. Even mentally ill people recognise that when they are arrested by the police and handcuffed they are in trouble. But his conversations with police officers after the offence, including his initial denials and subsequent admissions, demonstrate his very limited capacity to articulate his feelings and to retrieve factual information.

112. Dr Nielssen stated that he was familiar with the legal concept of insanity and diminished responsibility. The appellant clearly had a long standing abnormality of mind because of chronic mental illness at the time of the killing. The appellant was suffering from insanity at the time of the killing and was also entitled to the lesser partial defence of diminished responsibility. Had the appellant been suffering from drug-induced psychosis, the appellant's acute symptoms should have abated within days, or at least weeks, of being taken to a drug-free environment (prison).

113. In cross-examination, Dr Nielssen stated the following. He interviewed the appellant on only one occasion for one and a half or two hours and this was about two and a half years after the killing. Apart from seeing the appellant give his evidence during the trial, that was the only occasion he saw him. At the time of his interview, he considered that the appellant's treatment was appropriate. The appellant did not report acute symptoms but definitely exhibited chronic symptoms of schizophrenia. He had not actually seen how the appellant communicated when he was severely unwell. He restated his confidence that the appellant had schizophrenia and he did not consider that he met the criteria for anti-social personality.

114. During his interview with the appellant, Dr Nielssen told him that he would pass his report to the appellant's legal representatives who may present it in court. The appellant did not appear to have a great understanding of the elements of the offence or of the relevant mental health defences, although he said he was intending to plead not guilty on the grounds of mental illness. Dr Nielssen considered the appellant did not fully appreciate how he was mentally ill. The killing was a bizarre offence and not rationally explicable on the basis of the appellant's animosity to his older brother. The appellant told him that he heard voices outside his head like a brain wave or spirits. He would hear voices in the music he listened to which included heavy metal bands. On the night of the killing, the appellant's older brother told him not to listen to the music. The appellant said he then "walked around the house. [He] cut his throat. Heard voices saying keep going, 'Kill everyone'. Then [he] went." He heard voices telling him to kill the deceased which would not go away. He did not know why he obeyed them but he thought that if he did what they said they would get better. The voices were like echoes from his own thoughts. The appellant appeared a little suggestible but Dr Nielssen was careful not to prompt answers.

115. His interview with the appellant was conducted not face to face but by video link. The overall quality of the link was "pretty good". By the time Dr Nielssen interviewed the appellant, the appellant had been interviewed by others many times and on a regular basis about the killing and his mental state. Whilst it may be relevant that the appellant was able to disregard voices telling him to kill other members of his family, Dr Nielssen understood that at the time of the killing "the bargain the voices gave him…[was] that they would leave him alone…if he obeyed them" in killing the deceased.  The appellant said he did not want to kill his mother or his younger brother despite the voices urging him to do so. 

116. Dr Nielssen agreed that the appellant's sometimes inconsistent accounts meant that it was possible the appellant was untruthful at times. Dr Nielssen had not considered whether the appellant's belief that he was in danger from his older brother at the neighbours house was a rational belief, given he had just killed his brother's son. He maintained, however, that the danger the appellant then perceived from his older brother was based on schizophrenic delusions not on rational thinking. Dr Nielssen maintained his opinion that the appellant was probably suffering from insanity and diminished responsibility at the time of the killing.

117. In re-examination, Dr Nielssen stated that, when the appellant went to the neighbour's house after the killing, he was aware that he had done a horrible wrong. But at the time of the killing he was nevertheless completely deprived of the capacity to think in a logical and calm way. Those suffering from schizophrenia sometimes take drastic actions to try and stop the voices, in one case even killing their own child. The appellant's account was consistent with a mounting in the intensity in his symptoms reaching a crescendo at the time of the killing.

Dr Varghese's evidence

118. Dr Francis Thomas Varghese gave the following evidence. He graduated from the University of Queensland in medicine in 1972 and since 1978 has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists (a specialist qualification).  From then until 1984, he worked predominantly in Victoria as a psychiatrist with individuals suffering from schizophrenia and other psychoses.  He became the Deputy Superintendent of a mental hospital and worked part-time as Chief Medical Officer with the overall administrative management of forensic patients.  In 1984, he became a senior lecturer at the University of Queensland and has done clinical work at the Prince Charles Hospital, predominantly in the area of schizophrenia and its effect on mental processes.  In 1989, he became Associate Professor and Director, Princess Alexandra Hospital.  Since 2000, he has been in private practice, predominantly in the medico-legal psychiatric field.  He has also continued his university and research interests.  He has prepared about 188 medico-legal reports for various courts, including the Mental Health Court, where he is an appointed Assisting Psychiatrist.  He is experienced in preparing reports focussing on the issues of insanity and diminished responsibility. 

119. He was present for much of the appellant's trial and had either heard the evidence or read transcripts of it. He interviewed the appellant at the request of the Registrar of the Mental Health Court, not at the request of the appellant's defence lawyers.  The interviews took place on 17 November 2006 and 5 January 2007, with each interview taking about one and a half hours.  The evidence the appellant gave at the trial was consistent with somebody suffering from schizophrenia of a profound kind, with early onset and with considerable deterioration in personality.  That was consistent with the appellant's presentation during his interviews.  The appellant, in his evidence, exhibited the "blunting of affect", that is, he appeared unemotional even when describing horrendous feelings and acts, characteristic of a schizophrenia sufferer.  Dr Varghese had also perused reports and records relating to the appellant from the Bundaberg mental health service, "The Park", and the Maryborough Correctional Centre. 

120. The appellant was clearly suffering from schizophrenia which was only partially responsive to treatment and at the severe end of the spectrum. Alcohol abuse is often symptomatic of schizophrenia as sufferers use it to vainly attempt to control their symptoms or make themselves feel better. Alcohol does not result in psychotic symptoms. Cannabis is frequently used by schizophrenia sufferers and may hasten the onset of the illness in those who are predisposed. Cannabis can then exacerbate the symptoms of schizophrenia but once the cannabis use is stopped the psychosis will abate. Amphetamine use can cause psychosis even in those people not predisposed to schizophrenia. The symptoms they experience are indistinguishable from schizophrenia but once such a person stops using amphetamines their symptoms will abate rapidly. High dose amphetamine users over several months can develop psychotic symptoms of a paranoid type, indistinguishable from schizophrenia. When they stop amphetamine use, they can have a prolongation of the psychosis for some weeks but if they remain amphetamine free they will recover. Such an episode is known as a drug-induced psychosis. It would be more accurate to describe the condition as "amphetamine-induced psychosis" or "cannabis-induced psychosis" or "schizophrenia exacerbated by amphetamine use".

121. Dr Varghese considered that, although the appellant exhibited some anti-social traits and particularly the troubling cruelty to cats, these were attributable to his schizophrenia which began to manifest itself at age 13. After considering all the evidence at trial and the appellant's medical records, Dr Varghese considered that, at the time of the killing, the appellant was suffering from a disease of the mind, schizophrenia with the presence of psychotic symptoms. This diagnosis was supported by the Bundaberg Hospital records in 2002 and by the psychiatric records at the Maryborough Correctional Centre.  It was also consistent with the appellant's description of his thinking at the time of the killing.  That thinking seemed to be uninfluenced by alcohol or amphetamines.  The evidence from the appellant's mother is consistent with the longitudinal development of schizophrenia since the age of 13, exacerbated by the head injury and the multiple bizarre suicide attempts which are consistent with psychotic thinking at that time rather than mere despair or depression.  The mother's evidence was also that the appellant was behaving oddly on the day of the killing and she could tell he was unwell. 

122. Unlike Dr Nielssen, Dr Varghese considered that the appellant had the capacity to understand what he was going at the time of the killing; he knew that if he cut the child the child would die and that was what he intended. He had some knowledge of the wrongness of the act of killing and that he ought not to do it. This was indicated by his actions afterwards in stating to his neighbour's female friend, "I did something wrong. My brother is after me" and in his initial denials of involvement to police. Dr Varghese considered, however, that the appellant was deprived of the capacity to control his actions in that he was overwhelmed by the hallucinations instructing him to kill the deceased in a context where he believed his own life was under threat from his older brother.  These beliefs were so intense that they overwhelmed his natural sense that what he was doing was wrong.  The appellant had a natural inhibition against killing his mother and his older brother and was able to resist the voices when they told him to kill them.  But he did not have the same deep attachment to the deceased and was less able to resist the commands of the voices.

123. Dr Varghese observed that schizophrenia sufferers who have committed a criminal act which they know to be wrong often suppress their symptoms afterwards and do not accurately describe what happened in terms of the hallucination behind the action. For that reason, psychiatrists like Dr Voita, who examined the appellant soon after the offence, may not have been aware of symptoms of florid psychosis. Neither schizophrenia nor psychosis completely removes rationality. Dr Varghese considered that his diagnosis was consistent with the appellant's subsequent behaviour at the neighbour's house and his interaction with the neighbour's female friend. His talking to himself and hiding knives indicated an ongoing psychotic process. The appellant's letters to siblings after his incarceration following the killing demonstrated his self-centred lack of appreciation of the seriousness of his actions and were consistent with his schizophrenia. The appellant seemed unlikely to have been affected by alcohol or amphetamine at the time of the killing. A urine sample gave a positive cannabis result but Dr Varghese did not consider that cannabis was responsible for the appellant's psychosis as cannabis can be detected in urine for up to six weeks after its last use.

124. There was probably some antipathy from the appellant towards his older brother which manifested itself on the evening of the killing when this religious family learnt that the older brother had been accepted to train for the ministry. But their relationship was not so antagonistic that it would rationally cause the appellant to kill his older brother's infant son. In addition to the appellant being deprived of the capacity to control his actions by his schizophrenia, his schizophrenia and its accompanying psychosis amounted to an abnormality of the mind substantially impairing his capacity for control. Dr Varghese considered the appellant's knowledge of "the wrongness of the act" of killing may also have been substantially impaired but he expressed some hesitancy in reaching that conclusion.

125. In cross-examination, Dr Varghese's evidence included the following. A sufferer from schizophrenia becomes increasingly self-centred. This was consistent with the appellant's letters to siblings and in his evidence in court. Unlike a cold-blooded psychopathic person, the schizophrenic personality changes from a normal personality, as the appellant had as a child, to one unable to demonstrate emotional resonance. Not every schizophrenic who acts out in a violent way is entitled to a mental health defence. Dr Varghese accepted that the appellant's different accounts to different people as to the circumstances of the killing could be active dishonesty. But against that, there was a persistent clear theme in most of his accounts that he had for some time heard voices telling him to kill his mother. He considered that the appellant's account of the killing was correct, although he rightly observed that this was a matter for the jury.

126. Originally Dr Varghese was not confident that there was the necessary nexus between the appellant's psychotic symptoms and his act of killing the deceased. But the appellant subsequently gave a clearer account of his thinking, and in particular of the voices telling him to kill the deceased, which provided the necessary nexus. The appellant's hallucinatory experiences took away his ability to deal with the situation he was in and his capacity to control his actions. Dr Varghese admitted that he was troubled by the episodes involving the cruelty to the cats. He did not know what to make of them as they did not appear to be driven by any psychotic process. He was also perplexed by the appellant's claim that his older brother raped him when the appellant was 19 years of age and physically well able to resist. This was likely to have been a misinterpretation of some interaction with his brother during their physical altercation. It was possible, however, that this allegation against the older brother was a naïve attempt to shift the blame for the killing to the older brother. The appellant's account of the alleged rape to Dr Varghese differed in some respects from the appellant's evidence of it at trial. Despite those matters, Dr Varghese maintained his opinion as to the appellant's mental state which he gave in evidence in chief.

127. In re-examination, Dr Varghese stated that the appellant's evidence of the allegations of the sexual assault by his older brother may have been as a result of a delusion, although it did not have the characteristic of a schizophrenic delusion. It was likely to have been a misinterpretation of conduct as a result of schizophrenia.

The Prosecution Rebuttal Case

128. As is common in cases where the defence raises insanity or diminished responsibility, the prosecution called rebuttal evidence.

Dr Reddan's evidence

129. Dr Jill Georgina Reddan gave the following evidence via telephone link. She graduated from the University of Queensland with a medical degree and has been a medical practitioner for 29 years.  She has been a psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists for 20 years (a specialist qualification in psychiatry).  She trained in forensic psychiatry and worked in community forensic mental health and as a general adult psychiatrist.  She was the Deputy Director of Psychiatry and held a conjoint appointment at the University of Queensland at the Royal Brisbane Hospital for five and a half years.  She was a visiting psychiatrist at the Royal Brisbane Hospital, the high security hospital, the former Brisbane Central Prison, the Sir David Longland's prison and the Brisbane Women's Prison.  More recently she has worked at the Gold Coast Mental Health Service in consultation liaison psychiatry, sometimes with the homeless team.  During the past 20 years she has prepared many psychiatric court reports in civil and criminal matters.  She has been in private practice since 1989 as a reporting and treating general psychiatrist. 

130. She interviewed the appellant on 12 March 2007 at the request of a court, not at the request of the prosecution or defence. She conducted a second interview on 2 May 2007. Prior to the interviews, she perused material relating to the killing including the appellant's interview with police, his letters to siblings after the killing, medical records from the Bundaberg Health Service District and "The Park", a report from Dr Varghese, a report from Dr Voita and the medical records of the  Department of Corrective Services.  She also read the full transcript of all the evidence at trial. 

131. During her interview with the appellant, he described his relationship with his older brother as very poor and involving physical altercations. His older brother had beaten him on a couple of occasions. He alleged his older brother used drugs which made him very argumentative. His older brother had threatened him with a knife and was manipulative, tyrannical, forceful, and "fighting for supremacy". He alleged that his brother had seriously sexually assaulted him after coming at him with a knife. His brother told him that they could have AIDS. His mother was aware of this sexual assault. When the older brother, his wife and their baby (the deceased) lived in their parents' house, conditions were crowded. The appellant and his older brother got into a violent physical altercation after the appellant strangled a cat. The older brother, his wife and the deceased then moved out of the house.

132. The appellant's account did not appear to be a psychotic or delusional recollection. Dr Reddan was experienced in interviewing male rape victims.  She did not find the appellant's account of rape consistent and remained uncertain as to its accuracy.  His anger towards his brother was, however, very real.  The appellant seemed to consider his brother's conduct made his own crime understandable.  Whilst it was a matter for the jury, Dr Reddan felt the appellant's account to her may not have been true but was a rather simplistic attempt to paint his older brother in a very bad light. 

133. Dr Reddan's interview with the appellant was face to face. She did not consider a video linkage was satisfactory for this type of evaluation where nuances and subtleties of non-verbal communication could be missed. A video linkage interview is adequate for routine follow-up treatment. Her first interview with the appellant took nearly two and a half hours; the second interview took one and a half hours. The appellant told her that on a number of occasions he had mistreated kittens born to the family cat; on another occasion he hit the pet dog although not hard enough to kill it.

134. The appellant gave her an account of the two assaults which led to his incarceration at the end of 2005. He did not refer to any delusional symptoms or voices behind those assaults. Contrary to Dr Nielssen's evidence, the medical records showed that the appellant was first prescribed anti-psychotic medication in May 2002, late 2004 and during 2005. He was also prescribed medication when incarcerated between December 2005 and January 2006 as he was again becoming psychotic and he had taken it previously with some benefit.

135. The appellant told Dr Reddan that he began drinking alcohol fairly regularly from the age of 10, although she doubted the accuracy of this. His consumption of alcohol increased in year 11. He began smoking cannabis at age 13 and had smoked it every day for most of his high school years. After high school he continued to smoke cannabis with periodic gaps in use for a couple of weeks at a time. He said he had used intravenous amphetamines for a couple of years; injected a lot of magic mushrooms; experimented with the amphetamine-like drug, ecstasy; used the hallucinogen "Chia"; and once injected himself with heroin.

136. He gave Dr Reddan a detailed account of the events of 24 and 25 March 2006 leading up to the killing. His account of his drug and alcohol use during that period varied between interviews. There was no useful objective evidence: his blood and urine alcohol level was not sampled until 20 hours after his incarceration, well after the killing. No alcohol or amphetamines were detected although cannabis was found. As cannabis has a long half-life and remains able to be detected for up to 30 days after last smoked, this was not significant. Dr Reddan felt uncertain as to the accuracy of the appellant's history of his drug and alcohol use.

137. As to his account of the events leading up to the killing, he said that his older brother was always very competitive and tyrannical. The appellant had intermittently heard hallucinations or voices from the age of about 16. He heard these voices on the night of the killing. They distinctly said "If I'm murdering, just keep going." He retrieved a bayonet and a retractable knife from his caravan. He saw his older brother's car parked out the front of the house, opened the car door, saw the deceased asleep, slashed his throat with the knife and blood came out. He heard a voice say "Go behind the fence and listen to the scream". He walked to the neighbour's house. He could hear his mother and his sister-in-law screaming.

138. Dr Reddan found the appellant's account "somewhat unconvincing" as it seemed to be more like his own thoughts rather than a voice. He said that he had earlier heard voices telling him to kill his mother but he did not do this as he could not live without her. He had earlier heard a voice telling him to kill his brother but he did not act on that instruction.

139. The appellant stated that he had been exercising and "working out" and appeared physically very fit at the interviews. It was unusual for someone with a psychotic condition to have the degree of motivation necessary to "work out" and exercise. It suggested that, at the time of the interview, he had improved from his position during the previous year when he was at "The Park" and suggested that the appellant's negative symptoms of schizophrenia were not as severe as they often are.

140. The appellant's letters to siblings were written after his arrest and before his transfer to the secure mental health facility, "The Park". This was somewhat unusual in that they exhibited a complete lack of concern for his siblings' feelings, were self-centred and did not suggest a present psychosis.

141. She did not agree with Dr Nielssen that a drug-induced psychosis was different to other psychoses. At the time, it is very hard to tell one such psychosis from another. A review of the appellant's medical history prior to the killing was complicated by his abuse of various substances. She considered that he suffered from a recurrent psychotic illness, but it was difficult to determine what was due to substances or schizophrenia or a combination of both. In any case, the appropriate treatment was the same and the appellant was given this.

142. Dr Reddan has a particular expert interest in head injuries. The appellant's head injury in September 1999 was relatively mild and not the sort that would lead to brain damage. It was not a significant factor in his current mental illness.

143. The appellant said that he had intermittently heard voices of different kinds. The most significant was in 2003 when a voice told him to kill his mother. Another time, a voice said "I want you to kill your brother." On another occasion, a voice said "Go crying to your mum." Sometimes the voices were pleasant. They were not continuous but they recurred. They recurred again during the night of 25 March 2006 and were quite distinct. A voice said "If you're murdering, just keep on going and go behind the fence and listen to the screams." Later, when he was at the neighbour's house he heard a voice saying "Your brother is a devil; he has a chain saw."

144. He said that his relationship with his younger brother and sister was different to his relationship with his older brother. The appellant recounted his work history which was at times reasonably consistent but at other times quite patchy. This probably correlated with his state of mental health.

145. The appellant was forthcoming, cooperative and not distressed during the interviews. His social skills were undeveloped and unsophisticated, but not poor. It is difficult for a psychiatrist to determine whether an interviewee like the appellant is being truthful. His emotional expression and speech patterns were variable. When discussing his cruel behaviour to animals, his attitude was that they were just animals and that it was not a big deal. His attitude to his previous assault charges was that he was provoked and he was unconcerned and a little flippant about them.

146. In early 2007, Dr Reddan was unsure of the appellant's correct diagnosis as the psychotic episodes he reported may have been due to or exacerbated by the ingestion of substances. She thought he may have been suffering from schizophrenia. She now considered that the appellant probably was suffering from schizophrenia at the time of the killing, and to some extent intoxication, although the intoxication now appeared uncertain. In terms of insanity under s 27 Criminal Code, she considered that the appellant understood what he was doing when he killed the deceased and knew that he ought not do it.  The totality of his behaviour at that time indicated that he was not totally deprived of the capacity to control his actions.  The first time she became aware that the appellant claimed to have heard a voice telling him to kill the deceased was during his evidence in court.  She was uncertain whether this was "a post-hoc explanation and influenced by his knowledge of what's required for a defence over three years or whether [it was] an accurate account of what occurred".  In the past, voices had told him to kill someone but he had not followed them.  People with psychotic disorders often have command hallucinations but generally do not act on them as they recognise that what they are being told to do would be silly or wrong.  The appellant had made such assessments in the past.  If he heard voices telling him to murder members of the family but resisted them in the past, it was extraordinary that he would go out to the car and murder a two year old.  If he were in fear of imminent harm from his older brother, even a psychotic person would behave in a way internally consistent with his bizarre thinking; it did not make sense that he would then murder the two year old.  For these reasons, she did not consider that, on balance, the appellant was totally deprived of the capacity to control his actions.  It followed that she did not consider the appellant was suffering from insanity within the meaning of s 27 at the time of the killing.

147. Dr Reddan then considered the defence of diminished responsibility. She was satisfied that the appellant was suffering from an abnormality of mind at the time of the killing. Although it was likely that his capacity to control his actions was impaired because of that abnormality of mind, she was not satisfied it was substantially impaired. The killing was not planned but the appellant's post-killing conduct suggested the knowledge of an awareness of the nature and quality of his actions in killing the deceased. He had previously ignored voices telling him to harm his mother and brother and was able, when necessary, to rein in his behaviour.

148. Dr Reddan was asked whether the raw facts of the appellant's actions in killing the deceased that night suggested that he must have been insane. She responded in this way. People can do dreadful things without necessarily being insane, sometimes motivated by anger, revenge or for some sort of sadistic pleasure. Cruelty to animals is closely associated with violence towards people. It is almost always associated either with acting out angry feelings or the sadistic pleasure in the power or control over the suffering of the animal. The killing of animals can be a rehearsal of a killing or of violence towards people, especially vulnerable people such as children. It is not necessarily a reflection of psychosis and most people who kill animals are not psychotic. The evidence did not establish that the appellant's cruelty to animals was motivated by psychotic processes. The appellant's accounts prior to his giving evidence did not suggest any psychotic thoughts leading to his killing of the deceased. His previous killing of animals was a pointer, not towards the killing of the deceased, but generally towards future violence. The effect of Dr Reddan's evidence in chief was that she did not consider the partial defence of diminished responsibility under s 304A had been made out.

149. In cross-examination, Dr Reddan gave the following evidence. She agreed that she now considered that the appellant was suffering from schizophrenia, exacerbated by past substance use. It was difficult to say when the schizophrenia first manifested itself, but certainly by May 2002. The diagnosis of schizophrenia was not a complete understanding of the appellant's condition but was a large part of it. There was increasing evidence that drug-induced psychoses do not disappear after abstinence from the drugs which induced them. The changes in brain neuro-transmitters can last for years. Dr Reddan agreed that if the appellant's evidence (that he acted on voices telling him to kill the deceased because he believed that if he did so the voices would go away) was true, then the appellant's schizophrenia could well have deprived him of the capacity to know that he ought not to do the act. She accepted that there may have been records of the appellant's account of hearing voices telling him to kill the deceased on the night of the offence before he gave evidence in court, but the appellant's evidence in court, was the first time she had heard that account.

150. If the appellant's evidence at trial was now accepted as an accurate portrayal of his mental state at the time of the killing, she would consider that the appellant's mental illness, schizophrenia, may have substantially impaired his capacity to control his actions, but more likely impaired his capacity to know that he ought not do the act. His evidence could not, however, be looked at in isolation. His conduct before and afterwards, including his fleeing to the neighbour's house, his denials of wrongdoing and his initial denials to the police must also be considered in determining his capacity to know that he ought not to have killed the deceased and to understand that what he was doing was morally wrong. She accepted the evidence at trial was that the relationship between the appellant and his older brother was not an unusual brotherly relationship. The nature of that relationship was a matter for the jury, especially in light of some of the appellant's earlier statements about it. She considered that a significant part of the motivation for the appellant's actions was anger at his older brother.

151. The appellant's letters to siblings were written shortly before his transfer to a secure mental hospital, "The Park", and at a time when he was probably unwell to some degree.

Dr Voita's evidence

152. Dr Angela Voita gave the following evidence. She graduated from the University of Queensland with a medical degree in 1994 when she became a registered medical practitioner.  She has been a Fellow of the Royal Australian and New Zealand College of Psychiatrists and a consulting psychiatrist since 2004.  She is currently employed at the Queensland Forensic Mental Health Service.  For three and a half years she has worked at "The Park" High Security Inpatient Unit; for the Prison Mental Health Service; and for Community Forensics.  She has also worked as a consultant psychiatrist in the Adult Mental Health Service and has had specific training as a registrar in forensic psychiatry.

153. Since she first saw the appellant in her role as psychiatrist for the Prison Mental Health Service on 7 April 2006, she has been his treating psychiatrist. She last saw him on 9 March 2009.  She has seen the appellant well over 100 times, not at the request of the defence or the prosecution, but as a patient and to assess issues related to unsoundness of mind under s 27 and diminished responsibility under s 304A.  In reaching her diagnosis, she has had regard to the background material including the appellant's interviews with police.  She was present in court during most of the trial and heard the evidence of most witnesses, including the other expert psychiatrists.  She was provided with a transcript of the evidence given at trial on the two days during which she was not present.  She also examined the appellant's records at "The Park", the Prison Mental Health Service files, the Bundaberg Mental Health Service files and all other material to which other psychiatrists had referred. 

154. She was surprised by the appellant's appearance in court. It was different from interviews with her when he usually presented as taking pride in his appearance, even when he was an inpatient in high security. He exercised regularly and showered. His mental state in that respect seemed to have deteriorated in the month since she had seen him.

155. All her interviews with the appellant were in person, apart from two video link interviews when he was in custody at the Maryborough Correctional Centre prior to his transfer to Brisbane.  It was more difficult to make a clinical assessment of a patient by video link where subtleties could be missed and it was more difficult to hear exactly what a patient was saying. 

156. On 13 April 2006, she recorded the appellant stating: "Thinks he will get sentenced for a fair while for his offence maybe 12 or 15 years". In respect of the offence, he said:

"I'm pretty sorry about it, sorry about being in goal and what happened.  I wasn't really thinking straight.  I didn't have time to think about it; I was just watching a movie about killer whales and that's when my brother turned up.  He kept on going on about stuff from two days ago.  He sort of pushes people around.  Dad didn't really do anything.  I told him we're not going to get along together.  I should have just stayed in the caravan.  …  All the stuff my brother was saying was making out it just go into my head that I had to kill someone.  I should have stayed in my caravan."

He claimed to have last used speed two to three weeks before the killing at the rate of one gram on 42 occasions over five days.  He admitted to hearing voices.  Sometime before the killing, he heard a voice telling him to kill to his mother, to cut her throat, but he resisted. 

157. On 12 July 2008, the appellant gave her the following account. He had about three-quarters of a bottle of spirits, or about 10 glasses, at about 11.00 am on the morning of the killing. He had been drinking heavily during the previous day and evening. He went to his sister's place at about 12 noon or 1 pm. She would not give him anything more to drink. He rang his mother and asked her to pick him up. His mother and father took him to his grandmother's place where they stayed for about half an hour. They went home to his parent's place at about 6 pm. Whilst watching a documentary on killer whales, he heard voices saying "killing, killing". His older brother and sister-in-law arrived. He saw his older brother "pretending to be on the phone". He saw a knife on the kitchen table and had thoughts about stabbing his older brother but changed his mind. He believed that some people were out to get him and it had something to do with his older brother who had accused him of "chasing skirt". After the appellant went out to his caravan, he heard further voices telling him, "You're gutless. You're gutless. You can't do it. You're a gutless wonder. And my mind is weeping, the dark side is weak, wish you were one of the devil's own." He put a folding knife into his pocket. The voices said, "Don't turn around. You are a murderer. Just keep going." He walked around his older brother's car thinking that he would slash the tyres but he opened the door instead and saw the deceased in the back seat. The voices said, "Murder, murder, just keep going." He then killed the deceased. He was not thinking about how it would affect others. The blood splattered on his shirt. He ran to the creek and walked to the neighbour's house, about a half hour walk away, where he drank a six pack of beer, talked and smoked cigarettes with the neighbour.

158. During the following interview a week later, the appellant gave more details of the events preceding the killing. He said that he heard the older brother speak on the phone saying, "I'm going to run through you". He interpreted this as meaning that his brother intended to kill him. His brother had stated for several weeks "One of us will have to go." The appellant said he did not get along with his older brother particularly well. His older brother had said things about the appellant being gay and that "All [he] ever wanted was for [the appellant] to go gay". The appellant considered the older brother had tyrannical control over him and was boastful. He went to his caravan thinking that he might have to do what the voices told him to make things better. When he returned to the house he heard his sister-in-law saying that she could not wait to see the look on his face; she seemed to be boasting about the older brother's acceptance into the ministry. The older brother told the appellant that his music was "no good". When his brother was on the phone pretending to talk, he saw a knife nearby and heard his older brother say, "I'm going to run through you." The appellant believed his older brother hated him and returned to his caravan. When Dr Voita asked the appellant what stopped him from acting on his thoughts towards his older brother, the appellant said, "I've known him so long." He then took up two knives. The voices said, "You're a gutless … wonder. No, you won't do it." He walked out of the caravan. He felt anger towards his older brother whom he said had hit his mother before. He saw his nephew in the car sleeping and cut his throat. He said, "I didn't know what I was doing. I had no intention to murder until I saw my nephew." There was not much going through his head at the time. He was having trouble thinking. A voice said, "Keep going. Listen to the screams" and he heard laughing. Afterwards, he ran through the bush to a neighbour's house, noting, "I freaked out, ran away to get away from the cops." He did not think of getting medical help, but ran away because he thought the police were coming. The voices said, "The cops are going to get you." At the neighbour's house he put an assortment of knives under the pillow to hide them.

159. In subsequent interviews, the appellant said he had run from the scene after the killing because he was worried about the police apprehending him. He did not tell the neighbour about what he had done because he knew that it was wrong. He did not want to confess his actions to the police as when he was formally in custody somebody told him not to confess and he had not yet spoken to a lawyer. He enquired of Dr Voita whether "this would mean that he would not get a mental health defence". 

160. The appellant gave variable accounts of his drug taking before the offence. At one point he volunteered that he had made a mistake about previously admitting speed use immediately prior to the killing and that he now wanted to tell the truth, namely, that he had not used speed for four weeks prior to the offence. He clearly wanted to distance himself from the use of drugs or alcohol close in time to the offence.

161. He also voluntarily attempted to explain his denials to the police, stating that he wanted to get someone on side and that he thought he would "get less time" if he did not confess. He changed his mind and decided to tell the truth because he thought he would get some help for his problem which was all his fault. Dr Voita asked what the appellant meant by this statement. The appellant responded, "No-one understood what I was doing, though it was bottled up anger, I guess. It had to do with my brother … gay-raping me when I was 19. I was angry and he kept on making fun of me." The appellant gave varying accounts at various times of this alleged rape incident. At times he claimed a weapon was involved but at other times did not mention a weapon. At times he said no-one knew, but at other times he said his sister and his mother knew of it. On one occasion, the appellant claimed the rape incident occurred when he was 17 and on another when he was 19.  On another occasion, he claimed that his older brother pulled his pants down, threatened to cut off his penis and to put the knife up his anus.  Dr Voita did not consider the appellant's account of the alleged rape as consistent with a delusion.  It was possible either that it happened, or that the appellant was falsely using it as some sort of justification for the killing. 

162. The appellant said he did not want anything to do with his older brother after he got married and had a child. The appellant felt uncomfortable around children and did not like them as he could not talk to them. He admitted to feeling jealous of his older brother for having the deceased.

163. On 3 August 2006, Dr Voita took the following detailed account of the appellant's version of what happened on the night of the killing. He went to his caravan to get away from his older brother who had made "a crack" at him about his music. After a while, he took the folding knife and another knife and left the caravan to see what his older brother was doing. He walked around the house waiting for them to leave. He wondered why they had come as they knew he did not like their company; he wanted to spend time alone with his parents. He saw the deceased in the baby seat in the back of the car. He had thoughts of wanting to talk to his older brother and sort things out. He felt annoyed. He walked up to the car and opened the front passenger seat door. The deceased was breathing and sleeping. Intending to kill the deceased, he made a single deep cut with the knife from the left to the right side of the neck. The deceased screamed "Mummy". Blood spurted out. He felt that he had cut half the neck with one cut. He knew the cut was fatal and that the deceased was dead. His first thought was "No more visits from [the deceased] or [the older brother]". He had to get away from everyone like the police. He needed a couple of drinks. He went to his neighbour's for a while as he thought he could do some work for him. He had not thought how the offence or his behaviour would affect others and how upset his mother would be. Dr Voita asked the appellant whether he had heard voices.  He said he did not hear voices at the time of the killing but he heard vague voices in the caravan before he walked around the house but could not recall what they said.  When he was running away from the scene, he heard voices say, "Don't turn around.  You are a murderer.  Just keep going." 

164. Dr Voita noted that when the appellant gave evidence in court, he used psychiatric terms such as "psychosis" and "delusional". She noticed that over the period of her interviews with him, he picked up these terms from his contact with mental health services. He often interchangeably used the concept of "hearing voices" and "having thoughts". Over time, Dr Voita became less convinced that the appellant had true auditory hallucinations.

165. In an interview with another psychiatrist who was acting in place of Dr Reddan, the appellant stated that he had thoughts of stabbing co-patients and himself. These thoughts were intrusive and had been present for up to two years. They were not due to voices or frustration and were impulses which he could control and on which he did not act.

166. The appellant's condition has improved over time with treatment, but there were minor relapses, triggered by stresses such as court appearances.

167. It was not possible to ascertain how much alcohol or illicit drugs the appellant had used before the killing. Whilst it was possible that alcohol may have inebriated him to some extent, it was not responsible for his psychotic symptoms at the time of the killing.

168. The appellant's head injury in 1999 was a minor incident which did not cause neurological deficits and was not a factor in his present condition.

169. On one occasion, the appellant described his older brother as "full of hate" and ruining his life. In addition to admitting to killing the pet cats, the appellant said that when he was 17, he killed his brother's dog by bashing it in the head a few times. He was unsure why he did this but he may have been angry. He would sometimes blow smoke into the dog's mouth to get the dog stoned. He found this amusing. His older brother did not know that he had killed the dog. His mother found the dog and thought it could have died from a snake bite. He shot toads and goannas and sacrificed animals, including his own chickens. He commenced killing kittens when he was 19. He would chop their paws and heads off and set them on fire. There was no suggestion that he had done these things under instruction from voices or delusions. He made it clear that he did them to relieve frustration. He stopped his sadistic behaviour when the tom cat injured him.

170. Dr Voita formed the considered opinion that the appellant suffers from schizophrenia. As to the defence of insanity under s 27, he had a disease of the mind at the time of the killing, whether schizophrenia or a substance-induced psychotic disorder. However, she did not consider that the appellant was deprived of any of the three capacities so as to satisfy the defence of insanity under s 27.

171. As to the defence of diminished responsibility under s 304A, she considered that the appellant was suffering from an abnormality of mind at the time of the killing but that none of the three capacities referred in s 304A were substantially impaired: there was minor impairment but not enough to afford a defence.

172. During some interviews, at the time he was being interviewed by Dr Varghese, the appellant became increasingly concerned about getting a mental health defence and about getting his "story right". These comments, together with his variable histories and the view she formed of him during their interviews, led her to conclude that he had an anti-social personality disorder. Unlike Dr Nielssen and Dr Varghese, she did not consider that all of his anti-social behaviour could be attributed to schizophrenia. This was because of the many inconsistencies in his accounts and what she considered were attempts to tailor his answers to achieve a particular aim, namely, to obtain a mental health defence. Her diagnosis of anti-social personality disorder stood alongside her diagnosis of schizophrenia. The two were not mutually exclusive and commonly co-exist, often with substance abuse problems.

173. In cross-examination, Dr Voita gave the following evidence. She agreed with Dr Reddan's view that anti-psychotic medication, Clozapine, as given to the appellant was appropriate medication for psychotic disorders, whether or not substance-induced.

174. She agreed that the records showed that, shortly after the appellant's incarceration following the killing, he reported hearing voices, intermittently present at night, telling him "Don't worry about being in goal and don't worry about anything". The staff at the Maryborough Correctional Centre where he was initially incarcerated were concerned that he did not comprehend the charges. She initially interviewed him by video link on 7 April 2006. The appellant did not want to talk about the offence itself. He described voices he had heard the night before the killing, including a male voice, saying, "I love you, don't worry about a thing."

175. When she next interviewed him the following week, he discussed the offence for the first time. He was more unwell than previously. She agreed that symptoms of schizophrenia include thought disorder and an inability to properly recall detail and to articulate a coherent account of experiences. Although the appellant was an unwell schizophrenic during the early period of his incarceration after the killing, she expected he would be able to provide some consistency in his account of the killing. She accepted that at the time of the killing he had psychotic symptoms, but he had a choice as to whether he acted on his thoughts. He did not consistently describe delusional material relating to the deceased. She considered that his more reliable account was the one he gave more proximate in time to the offence, rather than the account he gave in evidence.

176. She initially did not accept that, if the appellant's account given in evidence at the trial were true, he was a person suffering from a disease of the mind, deprived of one of the relevant capacities under s 27 or s 304A. But she then conceded that, accepting his evidence that voices told him to kill the deceased and that he believed if he did so, the voices would leave, then his schizophrenia probably deprived him of the capacity to know that he ought not kill the deceased; if so, the schizophrenia would have substantially impaired one of the capacities under s 304A.

177. She now accepted that the appellant was suffering not from a substance-induced psychosis but from schizophrenia. That schizophrenia may have begun to manifest itself as early as the episode in year 9. She agreed with Dr Varghese that schizophrenia has a profound effect on personality. But she did not agree that the anti-social aspects of the appellant's cruelty to animals could be a by-product of the schizophrenia on his personality. Substance use and abnormal personality have played a part. Her opinion was also influenced by another explanation for the killing: that the appellant hated his brother and the deceased. She understood that the evidence at trial was that the appellant's relationship with his brother was not especially acrimonious and was within normal bounds.

The Judge's Summing-up

178. The judge gave the following relevant directions to the jury. He explained that the psychiatrists were expert witnesses, exceptionally giving opinion evidence. The jury did not automatically have to accept that evidence. They were the sole judges of the facts. It was for them to give what weight they thought proper to the various psychiatric opinions. Those opinions were based on what the psychiatrists had been told of the facts and this was especially important in this case. If those facts were not established to the jury's satisfaction, the experts' opinions may be of little value. Later, the judge warned the jury to dismiss feelings of sympathy or prejudice in this tragic case, to take a dispassionate view of the evidence and not be swayed by public opinion or their perception of it. They must weigh the evidence dispassionately and decide the facts on the whole of the evidence.

179. After setting out the elements of the offence of murder, the judge explained that if the jury were satisfied beyond a reasonable doubt that the appellant committed the offence, they must then consider the effect of the evidence about his state of mind. The judge explained the complete defence of insanity under s 27 and the partial defence of diminished responsibility under s 304A reducing murder to manslaughter. No complaint has been made about of any of those directions. On each, the appellant had to establish those defences on the balance of probabilities.

180. The judge summarised the position as to s 304A in this way:

"…  if you're satisfied beyond reasonable doubt that the [appellant] killed [the deceased] intending to kill him or to do him grievous bodily harm, but you're satisfied that it is more probable than not that at the time when he killed [the deceased] he was in a state of abnormality of mind which substantially impaired his capacity in one of the three ways I've stated you'll find him not guilty of murder, but guilty of manslaughter.

If, on the other hand, the [appellant] fails to satisfy you on the balance of probabilities in respect of one of the elements of the defence of diminished responsibility, but you are satisfied beyond reasonable doubt that he killed [the deceased] intending to do or to do grievous bodily harm you will find him guilty of murder."

181. When directing the jury as to the use to be made of any lies made by the appellant, the judge stated:

"If you think that there is or may be some alternative explanation for his lies then you should take no notice of them, at least in that sense. Here there is an alternative explanation offered by the defence that the [appellant's] mind was so disordered by his mental illness that his ability to perceive, judge and appreciate what he ought to say are impaired.

If you find that he has a mental illness then you must bring into account that it may not be fair to judge his responses by standards you apply to someone without such an illness.  Obviously you must consider whether his mental health plays some part in his presentation.

If the psychiatrists are correct in their analysis and diagnosis then you are evaluating the evidence of a man with a disease of the brain that impacts on his intellect, his capacity to express himself and his perceptions. What is more, you are assessing a man who has had treatment now for years. He might well be a different mental state when questioned to his state at the time of the killing and he may have different perceptions now than then."

182. The judge assisted the jury with a summation of the competing views of the four psychiatrists and of the relating prosecution and defence contentions, ultimately helpfully summarising the central issue in the trial in this way:

"It seems to me there are four essential matters for you to decide. One, did the accused have schizophrenia. Two, if so, as a result of that schizophrenia, was the [appellant] suffering from a psychotic episode at the time of the killing. Three, if so, was that psychotic episode precipitated by consumption of alcohol or drugs, and four, if not, was that psychotic episode sufficient to deprive him of or substantially impair his capacity in one of those three ways.

The capacity to control his actions seems to be the one on which Doctors Neilssen and Varghese agree.

If you are satisfied on the balance of probabilities, that the [appellant] had the condition of schizophrenia, then he plainly had an abnormality of mind and a disease of the mind sufficient to satisfy the requirements of both defences.

You will have seen that all four psychiatrists agree now, at least, that he has schizophrenia. The question is, is there any good reason to reject their opinions. It would be perverse to do so unless there was good reason. I can see none. It is a matter for you but you might think that a couple of things strongly support the diagnosis of schizophrenia. First, the history related by the family particularly of the bizarre suicide attempts going back over the years. You'll recall the evidence of the can opener in the eye and the hanging with the power cord, the rock incident, the biting of the bullet on the stove. There was independent from family members about a number of these events and the Doctors Neilssen and Varghese told you that these sort of episodes were very typical of the condition.

Secondly, you have a report made too, of the observations of the psychiatrist at the Maryborough Correctional Centre in the period from 25 November to 24 January, before the event we're concerned with.

The account given then and it's well before the killing of course, included symptoms that the doctors said were entirely typical of schizophrenia, including hallucinations in the form of voices commanding him to harm his family.

The doctor at the centre then diagnosed schizophrenia and treated him for that. The significance of course is that these symptoms were recorded by an independent trained medical person and the complaint that the voices were present commanding him to harm was made long before there was any possible motivation to make up an account for this case.

There's a deal more evidence in that but it seems to me that won't take you much time.

The second issue is whether the accused had a psychotic episode at the time of the killing. Was he hearing voices commanding him to harm and that if he obeyed them, they would leave him alone.

The only direct evidence as to what was in the [appellant's] mind at the time could only come from the [appellant] and he, you might think, is an unreliable source.

Again, all four psychiatrists accept that he was suffering from a psychotic episode involving auditory hallucinations.  Again, it would be perverse to reject their opinions without good reason.

There are three things you might consider to be of assistance. First, he reported hearing voices talking about harming his family in that time at the Maryborough Correctional Centre a couple of months before.

So, again, it cannot be said that he's made up the story for the first time just for this case.

Second, as Dr Varghese pointed out, numerous reports he has given of the night, there was a persistent clear theme of voices commanding him immediately before and during the act.

Third, such a symptom is very typical of a schizophrenic. The doctors report the patients known to have had the condition typically report such hallucinations. And as I've just read out to you that they are told or feel that the voices will leave them alone if they do as commanded.

The next issue that you have to decide is whether the consumption of drugs or alcohol has precipitated the psychotic episode.

The [appellant] told stories to psychiatrists of shooting speed 42 times in five days or a week before the killing. He told [the prosecutor] in cross-examination that was unlikely to be true and that he might've had one needle.

He told the prison officer after his arrest that he was affected by alcohol and drugs at the time of the killing. He tells you now that that was a false story.

He told the police he had 20 stubbies with [the neighbour] after the killing. Seems to be clearly false.

Now, we know from independent and reliable evidence that he had a nil alcohol and Amphetamine reading in samples taken at 5.15 p.m. on the afternoon after the killing, that is, about 20 hours after the killing. That's Exhibit 17. Dr Neilson (sic) explained the rate at which the body eliminates alcohol and that assuming the accused only had the quarter bottle of Scotch in that morning, he had no alcohol in his system by the time of the offence.

Dr Varghese explained that the rate of elimination of Amphetamines was quicker and would be gone from the system within 24 to 36 hours. The effects might last longer and up to weeks. Exhibit 17 shows that he has a tiny quantity of Tetranydrocannabinol, that is, the active component of cannabis in his urine, indicative of he ingesting cannabis some time in the month before. However, he could not have had any significant quantity recently. We know that every family member who came into contact with him on the afternoon and night of the killing detected no sign of alcohol or drugs.

You will recall the [appellant] readily accepted that he made up these stories of excessive consumption of alcohol and drugs because he thought it would help him with his mental health defence. Now, normally you'd be very wary of the reliability of a change in story like that, but here, you might think his claim that his earlier story was a lie, is reinforced by compelling independent evidence. True it is that it might suit the case he now wants to present, but if you accept the evidence of his family members and in the certificate, Exhibit 17, it seems that the facts of the case support the version he now wants to put forward.

It's a matter for you, but you might consider that some evidence against the theory of drug induced psychosis is his self-reporting of the onset of the voices after his release from prison. You will recall that he had been under treatment at the Maryborough Centre for those couple of months and he was without illegal drugs as far as we know, whilst in prison and he reported that the voices returned to him after he left the prison, but before he again returned to the taking Amphetamine. Finally on this point, the psychiatrist called by the defence side thought that the ingestion of alcohol and drugs did not play a part and the psychiatrist the prosecution called thought that it was uncertain that they did, as the evidence of consumption was so uncertain.

Now, a final issue is whether, if he had such a psychotic episode, did it deprive him of the capacity to control his actions, or substantially impair that capacity. I don't mean by that to limit it to only that capacity. There is some evidence to support impairment or deprivation of the other capacities. But that seems to be the one on which at least the psychiatrists on the defence side clearly agreed and that I think [the defence barrister] got Reddan to accept if she adopted a certain version of the facts.

Now, recall that the onus is of the defence, but it is the lower standard of proof. Are you satisfied on the balance of probabilities of this? It seems to me this is the real issue in the whole case. You have four psychiatrists whose opinions range across the whole spectrum. Doctors Neilson (sic) and Varghese thought that the [appellant] was completely deprived of his capacity to control his actions. Doctors Reddan and Voita thought at the most, a minor impairment of that capacity. Dr Reddan accepted that if one assumed the family description of the relationship between the [appellant] and [his older brother], she would accept that there was a substantial impairment of the capacity to control.

Now, there is this discrepancy between the doctors, because the doctors assume different facts. As [the prosecutor] said to you, the decision on the facts is entirely for you and that's why we have trial by jury and not trial by expert. Here it seemed to me the debate centred on three things; the significance of his actions and statements after the killing, that is, that he fled the scene and told lies about his non-involvement to [the neighbour] and the police; secondly, suggested alternative rational explanation for the murder in the hatred the [appellant] had of [his older brother] and [the deceased] and third, the precise nature of the hallucination.

183. The judge reminded the jury that the prosecution case was as follows. The fact that the appellant had schizophrenia and a psychotic episode at the time of the killing did not make him insane unless it deprived him of, or impaired, a relevant capacity under s 27. Dr Voita had an advantage over the other psychiatrists who gave evidence. She had seen him more than 100 times from early 2007 on a regular basis. During those many interviews the appellant did not mention the name of the deceased. He was not a credible witness. He wanted to avail himself of a mental health defence. He gave false accounts to the neighbour and to police. He had seen the psychiatrists give evidence in another forum and so understood what he needed to establish a defence. He was deliberately manipulative in terms of his claims of alcohol and drug use and an alleged rape by his older brother. All this would lead the jury not to accept his claim of a voice commanding him to kill the deceased. His relationship with his older brother (the father of the deceased) was not good and provided an alternative explanation for this crime. He could control himself to the extent of not following the claimed voices when they urged him to kill others. The letters to his siblings after his incarceration were consistent with this. His previous cruelty to animals can be linked to cruelty to humans. The prosecution invited the jury to convict the appellant of murder.

184. The judge explained the defence case to the jury as follows. This was a bizarre killing with no real provocation and with a concerning background of mental illness, supported by the evidence of the appellant's family, especially his mother. There was simply no evidence from the family of the sort of animosity or hatred from the appellant towards his older brother to justify the intentional killing of the deceased. The older brother had in the past supported the appellant when the appellant went to court for offences in late 2005. In July 2006, the appellant told Dr Voita that the voices had told him that killing "might make things better, maybe a higher power".^[4]  This statement was consistent with the appellant's evidence at trial.  The appellant's differing accounts to psychiatrists was, as Dr Varghese and Dr Nielssen explained, consistent with his schizophrenia.  Whilst the appellant had been able to resist the demands of the voices to kill his mother and his older brother with whom he had a long association, he had not known the deceased long and nor was he close to him and so was unable to resist.  As to the evidence of animal cruelty, no comparison can be drawn between such conduct and the killing of the deceased.  Two psychiatrists, Dr Nielssen and Dr Varghese, accepted that the appellant was deprived of the capacity to control his actions because of his schizophrenia.  The jury should find the appellant not guilty of all charges by reason of unsoundness of mind.

Conclusion

185. It is common ground that the jury would inevitably have found the appellant intended to kill the deceased at the time he killed him. The sole issue in this appeal is whether the jury verdict (in not acquitting the appellant of murder and finding him guilty only of manslaughter on the basis of diminished responsibility under s 304A) was unreasonable and cannot be supported by the evidence.^[5]  The determination of that issue involves a consideration of whether, on the whole of the evidence, it was open to the jury to reject the appellant's partial defence under s 304A: M v The Queen;^[6] MFA v The Queen^[7] and s 304A(2).  I have fully reviewed the relevant evidence.  The relevant provisions of s 304A are set out at [3] of these reasons. 

186. The opinions of Drs Nielssen and Varghese on the one hand, and the opinions of Drs Reddan and Voita on the other, conflicted on this issue.  The jury had the difficult task of deciding whether, on the balance of probabilities, when the appellant killed the deceased, the schizophrenia (an abnormality of mind induced by disease) from which the appellant plainly suffered substantially impaired at least one of the three capacities in s 304A(1).  The judge made clear to the jury that this issue was for them to decide.  His Honour fairly summarised the competing prosecution and defence contentions.  Doctors Nielssen and Varghese gave persuasive evidence, supported by the appellant's evidence and portions of the evidence of the appellant's family, which would have allowed a jury to return a verdict of guilty of manslaughter by way of diminished responsibility.  The appellant gave evidence that voices told him to kill the deceased and he believed that if he did so the voices would go away.  It is true that both Drs Reddan and Voita agreed in cross-examination that if this aspect of the appellant's evidence was true that the appellant's schizophrenia could well have deprived him of the capacity to know that he ought not kill the deceased under s 27.  Doctors Reddan and Voita also agreed in cross-examination that, if this aspect of the appellant's evidence was true, his schizophrenia probably substantially impaired at least one of the capacities under s 304A.  Despite those concessions, Drs Reddan and Voita, maintained their opinions that this aspect of the appellant's evidence was not reliable, and, at best for him, at the time of the killing his schizophrenia may have impaired a relevant capacity under s 304A to some degree.  Critically, Drs Reddan and Voita did not consider the appellant's schizophrenia substantially impaired any relevant capacity under s 304A.  The jury were entitled to either prefer the evidence of Drs Reddan and Voita to that of Drs Nielssen and Varghese or to simply not be satisfied that the opinions of Drs Nielssen and Varghese were valid.

187. There were reasons for preferring the opinions of Drs Reddan and Voita or for not accepting as valid the opinions of Drs Nielssen and Varghese. Doctor Nielssen interviewed the appellant in October 2008 on but one occasion. This was some years after the offence and in a context where the appellant knew the interview was for legal defence purposes. That interview was conducted wholly by video link. Doctor Varghese examined the appellant on two occasions in November 2006 and January 2007 with each interview taking about one and a half hours. By contrast, Dr Reddan interviewed the appellant for two and a half hours on 12 March 2007. As in Dr Varghese's case, that interview was at the request of a court and not at the request of the prosecution or defence.  Dr Reddan conducted a second interview in May 2007 which took one and a half hours.  More significantly, Dr Voita was the appellant's treating psychiatrist after his arrest on this offence shortly after the killing.  She examined him on many occasions between 7 April 2006 and 9 March 2009.  The jury may have placed particular weight on Dr Voita's opinion because of her extensive contact with the appellant over an extended period commencing shortly after the killing. 

188. As I have noted, the opinions of Drs Nielssen and Varghese were based on the appellant's account to them and the appellant's evidence at trial as to his thought processes at the time of the killing.  The truth of that account was a major issue at the trial.  The jury were entitled to conclude that this aspect of the appellant's evidence was not likely to be truthful or reliable.  I draw that conclusion for the following reasons.  On any view, the appellant was an unreliable source of information.  He gave inconsistent accounts about the amount of alcohol and illicit drugs he had consumed prior to the killing.  He admitted lying about the quantity of alcohol and drugs he consumed prior to the killing because he thought it would help him establish a psychiatric defence.  He agreed that he later changed his account of his drug and alcohol consumption preceding the killing when he realised his original account would not help establish a psychiatric defence.  By the time he gave his evidence at trial, he had spent some years in the criminal justice and mental health system.  His treating psychiatrist, Dr Voita, considered that he was tailoring his account to maximise his prospects of establishing a legal defence.  The jury was entitled to conclude that, despite his schizophrenia, he had some understanding of the evidence he needed to give to successfully establish a psychiatric defence and that he was prepared to give that evidence, even if it was not true. 
189. Certainly, there was other evidence offering some support to the appellant's evidence that, in killing the deceased, he was acting on the voices' demands.  The appellant told police shortly after the killing that something told him to hurt the deceased.  He told Dr Voita in July 2006, about three months after the killing, that he thought acting on the voices' instructions to kill "might make things better, maybe a higher power".  Aspects of the evidence of the appellant's family members as to the appellant's mental health history and his behaviour leading up to the killing was consistent with the appellant suffering from a delusional schizophrenic psychosis at the time of the killing.  It seems likely that voices told the appellant to hurt or kill the deceased and that the appellant acted on those voices when he killed the deceased.  But the appellant did not tell the police that he believed that, if he killed the deceased, the voices would leave him in peace.  Nor did he clearly articulate that to Dr Voita in his early interviews with her. That claim was crucial in establishing his partial defence to the killing under s 304A.  It was critical to the opinions of Drs Nielssen and Varghese which supported the appellant's claim to a partial defence under s 304A.  The appellant did not articulate that claim clearly until some years after the killing.  Of course, such delay may have been attributable to the appellant's illness.
190. Doctors Reddan and Voita emphasised that, in the past, voices had told the appellant to kill his mother and his older brother but he had been able to resist the voices.  The appellant had a history of sadistic treatment of animals.  He had told his sister and his younger brother that he hated the deceased.  His allegation of sexual abuse against his older brother appeared unconvincing and seemed more consistent with an attempt to falsely blame his older brother for triggering the murderous act than with a schizophrenic delusion.  The letter the appellant wrote from prison to his younger brother^[8] after the killing was capable of supporting the inference that the appellant killed the deceased to get back at his older brother.  This evidence tended to undermine the appellant's claim of a substantial impairment of either his capacity to understand what he was doing or his capacity to control his actions in killing the deceased.  It was consistent with the views of Drs Reddan and Voita that schizophrenia impaired his capacities under s 304A to some degree, but not substantially.
191. There was also a body of evidence which undermined the appellant's case that his schizophrenia substantially impaired his capacity to know that he ought not to have killed the deceased.  He told police the day after the killing that he would not have killed the deceased if a police officer or the deceased's parents were present.  He ran from the crime scene to avoid apprehension.  He told his neighbour that he had done something wrong and that his older brother was after him because of an argument.
192. On the evidence, the jury were entitled to remain unpersuaded on balance of the truthfulness of the appellant's evidence that he killed the deceased because he believed the voices which told him to do so would then leave him in peace.  It follows that the jury were entitled to remain unpersuaded on balance of the validity of the expert opinions of Drs Nielssen and Varghese which turned on the truthfulness of that aspect of the appellant's evidence.  The jury did not have to prefer the evidence of Drs Reddan and Voita to reject the appellant's s 304A defence but they were entitled to accept the evidence of Drs Reddan and Voita.  These psychiatrists remained of the view that, although the appellant was probably in the grip of a psychotic, schizophrenic episode at the time of the killing, his relevant capacities under s 304A may have been impaired by his schizophrenic psychosis to a minor degree, but not substantially, so that the partial defence under s 304A was not made out. 
193. The jury were entitled to remain unsatisfied as to the truth of his account that, at the time of the killing, he believed the voices which told him to kill the deceased would leave him alone if he did so.  The opinions of Drs Nielssen and Varghese, the principal evidence supporting his claimed partial defence under s 304A, were invalidated whilst this aspect of the appellant's evidence remained unestablished.  Additionally, the jury could have preferred the expert opinion evidence of Drs Reddan and Voita that, at the time of the killing, the appellant was probably suffering from schizophrenia, a major psychiatric illness (disease) amounting to an abnormality of mind, which impaired a relevant capacity under s 304A to a minor degree, but not substantially.  Despite the horrific, bizarre and unnatural aspects of this tragic offence, after carefully reviewing the whole of the evidence, I am satisfied that it was open to the jury to conclude that the appellant did not establish a partial defence under s 304A.  See M v The Queen^[9] and MFA v The Queen.^[10] 
194. It follows that the appeal must be dismissed.
195. MUIR JA: I agree that the appeal should be dismissed for the reasons given by McMurdo P.
196. ATKINSON J: I agree with the orders proposed by McMurdo P and with her Honour's reasons.