R v Hughes[2012] QCA 208

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant, Diana Hughes, was charged with murdering her former de facto partner, Greg Stewart, on 9 August 2006.  She appeals against her conviction on two grounds.  The first is that the trial judge erred in admitting evidence that related to disclosures by the deceased as to a suspicion that he was being drugged by the appellant.  The second is that the jury ought to have accepted she was suffering from a diminished capacity and therefore ought to have found her not guilty of murder and guilty of manslaughter.

The issues at the pre-trial hearing and the trial and the relevant evidence

2. Before discussing these grounds of appeal, it is necessary to summarise the issues at the pretrial hearing and the trial, and the relevant evidence. It was common ground that the appellant was responsible for the death which was caused by strangulation, either manually or with a rope. The issues at trial were self-defence and diminished responsibility.

The pre-trial hearing

3. At a hearing the day before the trial commenced, the defence objected to various aspects of the prosecution evidence including that relating to representations made by the deceased to witnesses of his suspicion the appellant was drugging him and his reasons for those suspicions. This evidence came from Ms Maree Curcuruto, Mr Neale and Ms Mona Fleming, Mr Clynton Reck and the deceased's siblings, Mr Ian Stewart and Ms Robyn Pegler.  This and other aspects of their evidence is summarised below.^[1] 

4. The trial judge held that as self-defence and diminished responsibility were likely to be issues in the trial, this evidence was relevant. It concerned representations made by the deceased about circumstances in which he believed the appellant was drugging him. It went both to his relationship with the appellant and also to whether she in fact drugged or sedated him on occasions before the alleged murder. R v Lester^[2] was distinguishable because this evidence was direct evidence of a relevant issue in the trial.  It was admissible under s 93B Evidence Act 1977 (Qld).^[3]

The prosecution case

5. In opening his case, the prosecutor explained the significance of the deceased's statements about his suspicions concerning the drugging episodes in this way. The appellant was prescribed Diazepam (valium), a muscle relaxant and sedative, on 27 May 2006 and 5 August 2006.  The deceased was never prescribed Diazepam.  But traces of it and a derivative were found in his system after death.  Even smaller quantities of Diazepam were found in the appellant's system after the killing.  The evidence of the deceased's statements to others about his belief that the appellant was drugging him was: 

"led not only to prove that she committed the murder but also led to prove the motive, to prove her intent, to negate any allegation of self-defence and to show her mental state that she was in control of her actions and knew she ought not to do it."

6. The evidence given in the prosecution case included the following. The appellant and the deceased had been in a de facto relationship which ended in early 2006 but they continued to live at the same address pending the resolution of their property dispute. On 10 August 2006, after receiving information from the appellant's lawyers, police attended their home. They found the deceased's body in a sitting position in a lounge chair. It was covered by a sheet. When they removed the sheet, they saw rope around his neck and three other ropes tied to various parts of his body. The 52 year old deceased had his leg removed above the knee following a motorcycle accident in 1992.  His prosthetic leg had been detached from his body.

7. When police searched the house, they found a note pad with indentations. They retrieved the contents of the original note which included:

"Kay,^[4] could you please support my two boys. …  You know what a strong person I am, … assure them that I'll be fine.  Nothing can be as bad as what I've battled through these last six months and the time away will do me good.  I'll be given best medical attention and have time to get myself back to sanity.  I doubt that I ever regret getting even with [the deceased].  He certainly asked for it and deserved it."

8. A search of the appellant's computer showed that on 8 August (the day before the killing) the appellant looked at online shopping sites and a dating website. She did a search for "Premeditated+Murder+Conviction". This search opened a document from the Australian Government, Australian Institute of Criminology website – Publication, Research and Public Policy Series, no 66: "Homicide in Australia: 2003-2004 National Homicide Monitoring Program (NHMP) Annual Report". She also searched "Queensland+Premeditated+Murder+Penalties" which resulted in her opening a document from the same website, "Prison Sentences in Australia: Estimates of the Characteristics of Offenders Sentenced to Prison in 1987 – 1988".

9. Shortly before 5.00 am on 10 August 2006 (the day after the killing) the appellant spoke to Mr Edward Beech, the husband of a work colleague, Carol Beech. The appellant apologised that she could not give Carol a lift to work because she had "had trouble with [the deceased] all night" and was "just about to ring the police". Mr Beech expressed his hope that everything was alright. The appellant responded, "It is now, Eddie." He offered to come and help her but she declined. He thought she sounded very cool, calm and collected with no emotion of any kind.

10. Before 6.15 am that morning the appellant collected her mail from Ms Donna Bowers, a friend and neighbour. They talked about various things for six or seven minutes. The appellant was stressed when talking about the work audit and her pending property settlement. She did not appear different from usual.

11. A forensic medical officer took samples of the deceased's blood for analysis. It contained low levels well below the therapeutic range of Diazepam and a derivative. This was likely to be the level of the drugs in his blood stream at death. Such levels were not likely to produce either intoxication or sedation. A small amount of painkiller slightly under the therapeutic range was also found. The combination of that drug with Diazepam did not make either stronger or more effective.

12. An even lower level of Diazepam and its derivative was found in the appellant's blood sample taken later on 10 August 2006. She was not physically injured and her clothes were undamaged.

13. The appellant and the deceased had a domestic dispute earlier in 2006 to which police were called. She alleged he had taken her wallet and he alleged she had taken his mobile phone. She threw punches at him and picked up a kettle of boiling water. The deceased grabbed her arm whilst she was holding the kettle. She picked up a small knife and stabbed at him causing small cuts to his left arm. She then destroyed an attachment for the phone. When the deceased remonstrated with her, she put down the small knife and grabbed a large carving knife which she waved at him. She cut his left hand causing a wound at least two centimetres deep. The deceased fled but the appellant chased him and assaulted him with a broom. The altercation stopped when a neighbour intervened and called the police.

14. In May 2006, following a dispute between the appellant and the deceased about her collection of property stored in the garage at the joint home, police attended with her to retrieve that property. The deceased unlocked the shed and the appellant removed a black garbage bag of property. Police were surprised to see her place the bag in a wheelie bin near the shed. The deceased relocked the shed.

15. Mr Michael Mulhare gave evidence that he worked with the appellant. She confided on at least four or five occasions that she was upset with her partner who said he would make sure she got nothing if she left. On about three occasions she said, "I might be better off to do away with him or get rid of him." He advised her to think of her family and to put the matter in her solicitor's hands. She responded that her family would be right without her. She mentioned that her partner had a girlfriend but the appellant was not worried about this; she was concerned about her share of the property.  In the last couple of weeks leading up to the death, she was more settled and in good spirits.  He last spoke to her on 8 August 2006 but their conversation was not lengthy.  She seemed "up beat" and said, "I still have my times; have ups and downs." 

16. Ms Deborah MacCallum, a neighbour who shared a common interest with the appellant in horses, gave evidence including the following. The appellant discussed her relationship with the deceased. He did not like horses and resented the time the appellant spent with them and at her work. Ms MacCallum told the appellant she thought she had seen him driving around with a girl. About six weeks before the killing, the appellant said she wished she could find a way to electrocute the deceased in the bath tub without activating the cut-off switch. Ms MacCallum told her that it was not worth going to jail over. The appellant responded, "Yes, it was." In cross-examination, she agreed that almost every conversation they had was either about the appellant's relationship with the deceased or the property settlement. Ms MacCallum was concerned that this problem was overtaking the appellant's enjoyment of life. 

17. Ms Maree Curcuruto knew both the appellant and the deceased. They were neighbours, who rode motorbikes and socialised together. One evening she heard the appellant and the deceased having an argument. The next day the appellant said that both she and the deceased had been arrested. She showed Ms Curcuruto bruises to both arms. Ms Curcuruto asked if the deceased was responsible. The appellant responded, "No, I hit myself with the broom handle but don't tell anybody." She asked Ms Curcuruto to take photos of the bruising but she declined. The appellant said she had cut the deceased on the arm and hand with a knife and thrown the knife in the dam behind Ms Curcuruto's property. After the killing a knife was retrieved from the dam.

18. A few weeks after this domestic violence episode, the deceased on two or three occasions told her that he thought the appellant was drugging him. He said that when he sat down to watch television at about 7.00 pm, he woke up four hours later and the intervening period was a total blank. On another occasion, his keys which had been in his shirt pocket were missing when he woke.

19. Mr Neale Fleming knew the deceased, and later also the appellant, through a clay target shooting club. The deceased's shotgun was stored in Mr Fleming's gun safe. After the appellant took out a domestic violence order against the deceased, police contacted Mr Fleming and collected the gun. Once the domestic violence order was resolved, the deceased's gun was returned but he always left it at Mr Fleming's. The deceased bought a new gun about a week before he was killed and also stored it at Mr Fleming's.

20. About two weeks after the domestic violence episode, the deceased told him that he thought he was being drugged. He never went to sleep in his chair at night but on this occasion he woke up in his chair with his wallet, keys and phone missing. He later found his possessions but he did not say where. He did not know how the appellant was drugging him because he prepared his own "coffee or tea or whatever else". He always carried his mobile phone because of his disability; he needed it to call for help if he fell over. In cross-examination, Mr Fleming agreed the deceased also said about his suspicions that the appellant was drugging him that he "must be just tired" and was "being paranoid".^[5]

21. Ms Mona Fleming also knew both the appellant and the deceased although she was friendlier with the deceased. She was present when the deceased told her husband, Neale, that the deceased thought the appellant was "doping" him. He said he went to sleep in his chair and when he woke up his wallet or phone was missing. His phone was his lifeline and he always carried it on him.

22. Mr Clynton Reck was a neighbour of and knew both the deceased and the appellant. He recalled an incident on Saturday, 22 April 2006. He heard the deceased calling out his name and "help". He got out of bed and saw the appellant trying to strike the deceased with a stick about 700 mm long. The deceased asked him to call the police and he did. The deceased said, "Look out, she's got a knife, she's opened me up." Mr Reck could not see the knife, just the stick. He restrained the appellant till he thought she had cooled down. As soon as he let her go, she tried to strike the deceased again in the chest and head so he had to grab her again. The deceased was hobbling towards Mr Reck's property the best way he could on his "peg leg", trying to avoid being hit. The appellant said, "Why the fuck did you get involved?" and stormed off back to her house. About a week later, he spoke to the deceased at a party at Mr Reck's house.  The deceased said that the appellant was destroying property inside the house and had threatened to kill him.  Each had obtained domestic violence orders against the other. 

23. On three different occasions, the deceased, who was not a heavy drinker, told Mr Reck that he thought he was being drugged.  He would sit down and watch his favourite show on TV and wake up three to four hours later, unable to remember having watched the show.  The first of these conversations was between May and June 2006.  On the next occasion, the deceased said he sat down to watch TV and passed out.  When he woke up he could not remember anything, but his keys to the shed and office had gone from his top pocket.  As a result, he changed the locks to the shed and the office.  The third occasion was when he came over to collect his mail.  He said, "It happened again last night."  He said he sat down to watch something on TV, woke up three to four hours later and could not remember anything. 

24. Mr Ian Stewart was the deceased's older brother. In 2006 the deceased told him that the appellant had "had a crack at him with a carving knife". He was only trying to defend himself and suffered a bad cut to his finger. The police came and domestic violence orders were taken out. On two or three occasions over a couple of weeks in about July 2006, the deceased told him that he woke up in his recliner chair at midnight or 2.00 am and could not understand why he was there. On one occasion he could not find his keys. 

25. Ms Robyn Pegler, the deceased's older sister, gave evidence about the relationship between the appellant and the deceased. On 12 April 2006, the appellant sent her a text in which she stated that she and the deceased were trying to sort things out. She was bitter about giving away her horses when she believed he was involved with another woman. She texted that she was prepared to go to court to realise her rights. On 24 April 2006, the deceased rang her and said the appellant had stabbed him and was trying to hit his artificial leg with a broom handle until a neighbour restrained her. Prior to his death, they talked on the phone two or three times a week.

26. In June and July 2006, he told her on three occasions that he would often have his dinner, sit down to watch television and wake up three or four hours later feeling groggy and drugged with his mobile phone or his keys missing. When he telephoned he sounded as if he had been drugged and was slurring his words. He likened his feelings at these times to how he was when recovering from his motorcycle accident and taking morphine and pain killing drugs. He said he felt groggy and spaced-out. 

The defence case

27. The appellant gave and called evidence. Her evidence included the following. Prior to the killing she was very depressed. She tried to electrocute herself. She could not eat or sleep. She was hearing voices and talking to herself. In July 2006 the deceased told her that he had taken a ring, her most treasured possession. She thought it was stolen by someone else in 2004. The deceased threatened that one day she would come home and find her dogs gone.

28. On 3 August 2006 she asked him about a motorcycle which she could see was missing from the shed where he stored their disputed property. He responded that there might be a lot of other things gone, too. She told him she wanted her mother's property from the shed. He replied that it might or might not be there and that good money could be had for Royal Albert china. She said she wanted to leave but he refused to give her the property until she returned his diaries. When she was driving Carol Beech home from work, Carol asked her to wait while she picked up a few items from the IGA. Carol made her wait 45 minutes and came out with a huge shopping trolley full of groceries. She felt Carol had taken advantage of her and was very angry. The appellant almost had a head on car accident. Her "nerves went" and she began to shake uncontrollably. These shakes continued until her arrest. She and the deceased argued again that afternoon and she continued to plead with him to allow her to retrieve her property from the garage.

29. The following day she was very sick and could not stop shaking. She was especially depressed. She spoke to herself in the mirror and heard voices which mumbled so that she often could not make out what they were saying. She felt she was "totally falling apart". She went to a doctor who prescribed Diazepam. That evening she took three Diazepam but she still slept badly.

30. On Sunday, 6 August she decided to leave the appellant and get the police to help her retrieve her possessions from the shed. That night she took between three and five Diazepam but she still woke frequently.

31. On Monday, 7 August as she got ready for work she talked to herself about how she could leave the premises and retrieve her property from the shed. She decided to kill herself. She went to work and felt fantastic because she knew her depression would stop and the pain would soon be over. That evening she resolved that if she kept trying for a little longer she might improve the next day. She took a small quantity of Diazepam. She felt better and decided not to overdose. She also had been prescribed the drug Efexor for bad headaches but she could not remember if she took any.

32. The next day, Tuesday 8 August, she felt miserable but made herself get ready for work. She had a terrible day and when she returned home she decided she would dissolve tablets in her food and kill herself. She made some white sauce. She dissolved all the Diazepam tablets in the bottle and put the resulting solution into the sauce which she ate with some leftovers. She fell into a deep sleep but woke up vomiting with ringing in her ears. She went back to sleep and woke up the next morning, Wednesday 9 August, feeling ill. She forced herself to prepare for work as she was giving Carol a lift. She remembered nothing of the day. She did not remember searching the internet for the words "premeditated", "murder" and "conviction". She rang her adult son to wish him happy birthday and to reassure him that she was fine. She and the deceased continued to argue over matters including her mother's china. She washed items including the linen soiled from her vomiting the previous night.

33. She was deeply worried about how she could leave the premises with her mother's property from the shed. If she broke into the shed to take it she believed the deceased would attack her. She was talking into a mirror and receiving answers from behind. She realised she had the Diazepam bottle in her pocket and noticed it still contained some liquid. The deceased was steaming vegetables whilst barbequing meat. She thought she could get him to go to sleep by adding the liquid to the vegetables. She could then take the keys, go to the shed and leave with her mother's property. She was worried that if he caught her doing this he would attack her so she decided she would try to tie him up whilst he slept. She poured the remaining Diazepam solution onto the cauliflower. He ate it but it did not seem to have any impact. She took a bath, but it was well after 8.00 pm when he fell asleep in his recliner chair. She tied his leg and his arms to the chair and put another rope across his lap, securing it to the chair back and seat. She retrieved a large number of keys from the study. She knew she had to be quick and voices were telling her to hurry. She finally unlocked the shed and located her mother's property. She checked the property but returned to the deceased to untie him without taking any. After some difficulty, she relocked the shed.

34. She knew she had to undo the rope but could not. She cut one rope and managed to undo the others. As she reached across him he grabbed her and pulled her off balance. He said, "You have been in the shed. Now I can break every bone in your body." He had a look on his face like a demon and it frightened her. He pulled her forward and punched and elbowed her. She panicked and became tangled in the ropes. She went into something like a faint and momentarily blacked out. She knew she was fighting to get away. It seems that this was all she could remember of the time of the killing.

35. Her next recollection seemed to be running into her bedroom. She leant against the door waiting for him to come. She thought he would kill her because she had gone to the shed. When he did not come, she decided to go to bed and pretend to be asleep. She slept for an unknown period. She woke with a fright and voices telling her to wake up. It was like a dream. She quietly and cautiously investigated, fearing that the deceased would ambush her. She took a sheet from the linen press, rushed through the door and covered the deceased who was still sitting in the chair. She realised he was dead. She again thought about killing herself. She thought about attaching a hose to the car exhaust and gassing or hanging herself. But she remembered it was her son's birthday and knew that she could not kill herself that day. She talked things over with the voices and decided to go to the police, confess, go to court and ask for a lethal injection. She made a list of the things she needed to do before she went to the police. She rang the Beeches to tell them she could not take Carol to work but she could not remember the conversation.  She rang Kathy Ellem, a work colleague, and told her she would late for work.  She visited her friend, Donna Bowers. 

36. She posted some items to her son from the Gatton post office and went to the bank. She was about to go to the Gatton police station when she realised she had not attended to the dogs so she returned home. She was frightened to enter the house in case the deceased ambushed her. When she left she put his crutches beside his chair in case he needed them. She returned to the Gatton police station but did not go in as she was worried the police would make her return to the house and look at the deceased. She went to Laidley intending to go to the Laidley police station but instead sought assistance from her solicitor.

37. In cross-examination the appellant admitted she wrote the note discussed in [7] of these reasons after she killed the deceased.  She did not know where the original was and could not explain why she had written it.  She wanted to get her affairs in order before the police arrived.

38. The appellant's friend since primary school, Ms Kay Franklin, gave evidence including the following. The appellant told her that she thought her phone was bugged and she would ring her from a public phone. She and the appellant shared a love of horses.  Ms Franklin had sold two horses to the appellant.  When the deceased made the appellant get rid of the horses, Ms Franklin took one back.  The appellant was very upset about her belief that the deceased was seeing another woman.  The appellant and the deceased had a strange relationship.  They used their own money to buy their own things but the deceased did not like the appellant spending money on her horses. 

39. Psychiatrist Dr Peter Fama gave evidence including the following. He examined the appellant for two and a quarter hours on 16 July 2009 for the purpose of deciding whether the partial defence of diminished responsibility applied in her case. He was familiar with both the evidence in the case and the appellant's medical reports including those from her treating psychiatrist.

40. In his opinion, at the time of the killing the appellant was suffering from an abnormality of mind, namely, a depressive illness. She was a vulnerable woman who had suffered many years of depression before the killing. She needed a very supportive environment. Since receiving treatment in prison, her depressive symptoms were in remission. Prior to the killing, she was experiencing pseudo-hallucinations. These were genuine but not of the strength and reality of a true hallucination (a symptom of psychosis). She had lost weight, was suffering insomnia, had poor self-esteem and was in quite a wretched state. This led to her attempts at self-harm by electrocution and by an overdose of Diazepam. She was nevertheless able to work and to contemplate killing her aggressive and authoritarian partner as an alternative to suicide. Although the appellant had no recollection of conversations with friends about killing the deceased or of her internet search, she did not deny these things happened. She was reluctant to come to terms with the death and her responsibility for it, preferring to think that he had "just gone and her fantasy had been met". This supported an impaired ability to tell that what she had done was wrong.

41. Dr Fama accepted that the appellant had no memory of the actual killing but, from the surrounding circumstances, he believed she was substantially impaired in her capacity to know that she ought not to kill the deceased. This impairment was more than trivial but it was not a total deprivation of capacity.

42. As well as having depressive thoughts, she also had paranoid thoughts. She believed the deceased had surveillance in the house and that her phone was bugged. Paranoid thinking in a major depressive illness was unusual but this and her close to delusional thinking substantially impaired her capacity both to control her actions and to know she ought not kill the deceased. Immediately after the killing she was in a somewhat dazed state and retreated to irrelevant obsessional rituals. This showed the turmoil in her mind. Her disordered mental state commenced about three months before the homicide, from about April 2006 onwards.

43. At the time of the killing her mind was one of quite marked depression, anxiety and fear. She was fearful of the deceased and obsessionally pre-occupied with fetching her mother's belongings from the shed. Her actions in terms of the belongings and after the killing showed the disordered state of her mind. Her depressive illness impaired her judgment and led to her peculiar behaviour. She did not kill the deceased out of anger or jealousy but because of a substantially impaired capacity both to control her actions and to know she ought not to kill the deceased, brought on by her depression. She was a woman of ordinary intelligence. Had she formed a full planned intent to kill the deceased she could be expected to have come up with a better plan than that executed. 

44. If the deceased did not wake up and struggle with the appellant and instead she simply tied him up and strangled him whilst he was drugged, Dr Fama still considered she was acting under a substantial impairment both to her capacity to control her actions and to her capacity to know that she ought not kill him. She felt desperate and could see no other way out. Her judgment was gravely impaired and her choices were much narrowed by her depressive thinking.

The prosecution rebuttal case

45. In rebuttal, the prosecution called psychiatrist Pamela Van Der Hoef. She examined the appellant on 1 August 2007 for almost three hours. She had access to psychiatric and medical reports and records concerning the appellant. She had also read the transcript of both the appellant's and Dr Fama's evidence in the trial. She agreed with Dr Fama that the appellant was suffering from a major depressive episode of some significant severity at the time of the killing and that this amounted to a form of disease or abnormality of mind. Working on the scenario that, as the appellant stated in her evidence, the deceased woke and attacked her as she was untying him, Dr Van Der Hoef considered that the appellant's abnormality of mind must have substantially impaired both her capacity to know that she ought not kill him and her capacity to control her actions. But, despite the appellant's depression, if the deceased did not wake up and attack or threaten her, her capacity to know she ought not kill him and her capacity to control her actions were not substantially impaired at the time of the killing.

46. The prosecutor asked whether her opinion was affected by the evidence that the deceased believed he may have been drugged on previous occasions. Dr Van Der Hoef responded that she did not know whether the deceased's belief was true and pointed out that the appellant denied drugging him on previous occasions. Had she done, this may or may not have been related to her depression. Her depression may have impaired her judgment sufficiently or it may not; she did not know.

47. The prosecutor referred the doctor to the evidence of the earlier episode of domestic violence and asked how that affected her opinion. Dr Van Der Hoef noted that in the unravelling of the relationship each was violent towards the other in different ways. But Mr Reck's account was objective evidence that the appellant was the more physically aggressive. The appellant had magnified in her eyes the threat of the deceased. She was reacting irrationally to circumstances because she was depressed and anxious. If he did wake up, struggle, threaten and assault her at the time of the killing, she was overwhelmed by the effects of her abnormality of mind and a finding of diminished responsibility was supported. If he did not assault her and he remained silent, asleep and still when she killed him, her capacity to control her actions and to know she ought not to kill him were not substantially impaired.

48. The appellant's amnesia in respect of the internet search hours before the killing was difficult to explain. The internet search represented some degree of planning or premeditation, although there were other possibilities. It also demonstrated that she would have realised after the search that she ought not to do the act at least from a legal if not a moral perspective.  If, as the appellant stated in evidence, the deceased woke up, struggled and threatened her, with all of her reported pre-existing fears of him, she seems to have reacted in an overwrought and exaggerated manner.  This supported a finding of diminished responsibility.  If, however, there was no such struggle or threat, the evidence of premeditation weakened the argument that the appellant's relevant capacities were substantially impaired because of her depression.  In that scenario, whilst she was depressed with impaired capacities, and in need of treatment, the case for substantial impairment was weakened by the premeditation.

49. Similarly, if the appellant wrote the note discussed in [7] of these reasons, this suggested she was angry and vindictive and had acted in retribution by killing the deceased.  It somewhat weakened the argument for diminished responsibility as the note could have been written by someone who meant to kill the deceased.

Relevant aspects of defence counsel's closing address to the jury

50. Defence counsel in her closing address submitted the jury should place no weight on the evidence of the witnesses who stated that the deceased reported his suspicions about being drugged by the appellant. He most likely fell asleep in his chair on these occasions. As he told Mr Fleming, he was probably just tired and paranoid. The address concentrated primarily on the defence of diminished responsibility. Counsel urged the jury, even if they were not satisfied that the deceased awoke and struggled with the appellant, to accept Dr Fama's opinion that the appellant's relevant capacities were substantially impaired because of her abnormal state of mind. She urged the jury to return a verdict of not guilty of murder and not guilty of manslaughter because of reasonable self-defence given her state at the time. At the very least, the jury would find the appellant not guilty of murder but guilty of manslaughter because her depressive illness resulted in diminished responsibility.

Relevant aspects of the prosecutor's closing address to the jury

51. The prosecutor's closing address to the jury dealt with the deceased's statements to witnesses about his suspicions the appellant was drugging him in this way. After summarising the relevant evidence, he reminded the jury that the appellant was the only other person in the house who was in a position to drug the deceased. The appellant admitted that on the night of the killing she did drug him. The prosecutor submitted:

"These are factual matters for you, members of the jury, but, obviously, the Crown submits to you that the greater the premeditation the less likely that it was an act done … with … a significant impairment to a capacity."

52. He submitted the evidence about the previous drugging was one of 10 reasons why the jury would accept as a fact that the appellant was not attacked by the deceased prior to the killing. The jury should accept Dr Van Der Hoef's evidence that in those circumstances the appellant was not acting under a relevantly impaired capacity. If there was premeditation and no struggle, as Dr Van Der Hoef said, this weakened the argument for substantial impairment of the relevant capacities.^[6]  The jury should convict her of murder.

The judge's summing-up

53. In his summing-up to the jury, the judge accurately and thoroughly reviewed all the evidence including that of the witnesses to whom the deceased spoke about his belief that he was being drugged by the appellant. He pointed out that Dr Van Der Hoef disagreed with Dr Fama in one significant area, namely, that if the deceased did not attack the appellant before the killing, then her relevant capacities would not have been substantially impaired so as to permit a conclusion that she suffered from diminished responsibility.

54. In summarising the psychiatric evidence, his Honour again pointed out that Dr Van Der Hoef disagreed with Dr Fama in one area of significance, namely, that if the deceased did not attack the appellant then her relevant capacities would not have been substantially impaired so as to permit a conclusion that she suffered from diminished responsibility.^[7]  Dr Van Der Hoef did not know if it was true that the appellant had previously drugged the deceased but she "may have done that because of her impaired judgment and their awful bickering".  The note interpreted from the pad found at the house after the killing appeared as if the appellant knew the deceased was dead and was angry and vindictive with him and had acted in retribution.  Dr Van Der Hoef considered that if the note were written in anger, it somewhat weakened the argument for diminished responsibility.^[8]

55. The judge concluded by thoroughly and fairly reviewing the competing contentions of the defence and prosecution. When summarising the prosecutor's contentions, he pointed out that one argument as to why the jury should not accept that the deceased attacked the appellant before the killing was that the greater the appellant's premeditation, the less likely that she was acting under diminished responsibility. In this respect, the jury should take into account the deceased's belief that he was being drugged by the appellant; that she was the only other person in the house; her access to Diazepam and its presence, as well as Tramadol, in his system after his death. The jury would infer from these matters that the appellant had drugged him in the past. As to diminished responsibility, the prosecution accepted she was depressed and her capacities were impaired but not that they were substantially impaired. This was because the deceased did not assault or struggle with the appellant. As Dr Van Der Hoef pointed out in her evidence, the deceased needed to be in fear for her life for there to be any substantial impairment of her capacities in terms of diminished responsibility. The evidence of premeditation weakened the argument for a substantial impairment of the appellant's relevant capacities.

56. After the jury retired to consider their verdict, they asked the judge questions including "Clarification of hearsay". His Honour's redirection relevantly included the following:

"Let me then say something about hearsay. Hearsay consists of what a witness has heard others say as to the facts of which he or she has no original or personal knowledge. Where a witness gives evidence as to the out-of-Court statement of another person who is not called as a witness we call it hearsay. The admissibility of the evidence will depend upon what is sought to be proved by it. In general, the evidence is inadmissible if used directly to prove the truth of the fact asserted and will be admissible when used as original evidence to establish not the truth of the statement, but the fact that it was made.

…

Another example is the statement to various witnesses by the deceased that he believed he was being drugged. That is only evidence of his state of mind at the time and not evidence that he had actually been drugged.

…

As a general rule hearsay evidence is inadmissible and is excluded. The reason why such evidence is normally rejected is that experience shows it often to be unreliable because it cannot be tested, that is examined to see whether it is reliable. There is a risk that the witness's testimony is not a reliable account of what actually happened. A witness who tells you of what somebody else said may have misheard or misinterpreted what was said or the witness might not recall things accurately because of faulty memory.

People also often make remarks that are inaccurate or even untruthful. There is less chance that they will do so when called as a witness in Court proceedings because, before they give evidence, they solemnly promise or affirm to tell the truth and to give false evidence is a criminal offence which can be punished. As well, the evidence can be tested by cross-examination, which tends to show whether evidence can be accepted. This cannot happen with hearsay evidence."   (my emphasis)

Were the deceased's statements to others that he suspected the appellant had drugged him admissible?

The relevant legislative provisions

57. Section 93B Evidence Act 1977 (Qld) relevantly provides:

93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable

1. This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

1. made a representation about the asserted fact; and
2. is unavailable to give evidence about the asserted fact because the person is dead … .

2. The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

1. made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication;

…

4. To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
5. In this section—

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

representation includes—

1. an express or implied representation, whether oral or written; and
2. a representation to be inferred from conduct;

… ."

58. Section 130 Evidence Act provides:

"130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."

The appellant's contentions

59. The appellant's counsel accepts that the deceased's statements about his state of mind, namely, his suspicions that the appellant drugged him, amounted to an asserted fact within his personal knowledge, consistent with this Court's observations R v Lester.^[9]  The statements were made shortly after the alleged occurrence.  Counsel also concedes that the deceased's representations about these suspicions were a reliable indication of his state of mind at the time.  But counsel contends that the deceased's representations about his suspicions are not admissible because no relevant inference can be drawn from them.  They arose simply because he fell asleep in his lounge chair on three occasions.  As in Lester, there was no connection or link between his suspicions and the appellant's conduct so that the deceased's suspicions established nothing about the state of his relationship with the appellant at the time.  The evidence was inadmissible under s 93B. 

60. R v McGrane^[10] was distinguishable from the present case on its facts.  In that case, counsel argues, the deceased's statement to an officer at the Health Rights Commission that Dr McGrane had drugged her during a consultation was given context by other evidence that he had given her injections in unorthodox circumstances.

61. Alternatively, counsel submits that, if the impugned evidence was admissible under s 93B, the judge ought to have excluded it in the exercise of his discretion because it was of slight probative value and potentially grossly prejudicial. The prosecution relied on it to rebut the evidence of diminished responsibility. The prosecution argued it was a significant factor which would lead the jury to conclude the appellant's conduct was premeditated and did not occur spontaneously when the deceased woke and attacked her. If the jury accepted the deceased did not attack the appellant immediately before the killing, the prosecution contended the jury should accept Dr Van Der Hoef's evidence that in those circumstances the appellant was not acting under diminished responsibility.

Conclusion on the first ground of appeal

62. The offences of murder (s 302) and manslaughter (s 303) are contained in Ch 28 Criminal Code so that the impugned evidence, set out at [18], [20], [21], [23], [24] and [26] of these reasons, was given in a prescribed criminal proceeding within the meaning of that phrase in s 93B.  And, as the appellant rightly concedes, this Court's decision in Lester makes clear that the deceased's statements as to his state of mind, namely, that he suspected the appellant had drugged him, were representations within the meaning of that term in s 93B.  And so too were his statements about the physical sensations he experienced, namely, falling asleep in unexpected and, for him, unusual circumstances; feeling "groggy" when he woke up; and that his keys and phone were uncharacteristically missing.  His statements were timely and unlikely to be fabricated. 

63. This Court in Lester, applying Gleeson CJ's observations in R v Frawley,^[11] held that the deceased's statements to others that she believed Lester had asked someone to kill her because two friends told her so, was inadmissible.  These statements were not referable to any acts or statements occurring within her relationship with Lester or to any consequential state of Lester's mind.^[12]  This Court reasoned that, as in R v Clark,^[13] evidence of the deceased's fear that Lester had asked others to kill her could not cast any light on her relationship with Lester unless her express fear was attributable to something said or done by, in the presence of, or otherwise communicated to Lester.^[14]  For her statements about her state of mind to be admissible, the jury needed to be able to link that evidence with something said or done by or communicated to Lester.  This was because a relationship involves "mutual dealings between [the deceased and Lester] and the consequential attitudes each has for the other".^[15]  There was no evidence that the deceased's fear of Lester about which she told others was attributable to an aspect of their relationship.  Her fear arose from having been warned by two friends that Lester had sent somebody to kill her.  The impugned evidence was not evidence that he had made any such statement or done any such thing.  Nor was there evidence the deceased's reports of such a statement were ever communicated to him.  Her alleged fear did not directly or indirectly bear on Lester's attitude towards her or on the question whether he was implicated in her murder.^[16]  The impugned evidence was therefore irrelevant and inadmissible.

64. Contrary to the appellant's contentions, the present case is plainly distinguishable from Lester.  In the present case unlike in Lester, the deceased's statements to his siblings, Mr and Mrs Fleming, Ms Curcuruto; and Mr Reck about his belief that the appellant may be drugging him were not reports of statements made to him by others.  They followed the domestic violence episode between the deceased and the appellant where he was the primary aggressor.  His belief was related to physical sensations he experienced upon awakening after having fallen asleep in unexpected and, for him, unusual circumstances.  On at least one occasion his mobile and wallet were uncharacteristically not in his possession when he woke up.  The deceased and the appellant were the only residents in the house and there was no evidence that anyone else had the opportunity or motive to drug him.  She was prescribed Diazepam during the relevant period and he was not.  She admitted drugging him on the night of the killing and traces of Diazepam and its derivatives were found in his blood post-mortem.  Unlike in Lester, the impugned evidence was attributable to his relationship with the appellant, their mutual dealings and their attitudes for each other.  It was admissible under s 93B as an exception to the hearsay rule.  It was admissible as to his state of mind at the time, that is, that he believed the appellant may be drugging him.  It was also some evidence that the appellant had drugged him on these occasions.  The judge's italicised directions to the jury on this issue set out at [56] of these reasons directed the jury that it was admissible only as to his belief.  The direction was inconsistent with his Honour's pre-trial ruling and wrongly favoured the appellant.

65. The trial judge rightly concluded at the pre-trial hearing that the impugned evidence was admissible under s 93B, both as to the deceased's relationship with the appellant and also as to whether she drugged or sedated him on those occasions.

66. The appellant's alternative contention is that, even if the impugned evidence was admissible under s 93B, it was not of great weight and was highly prejudicial. Dr Van Der Hoef placed considerable weight on it as did the prosecutor.  The judge should have excluded it in the exercise of his discretion. 

67. The impugned evidence in isolation may not be of great weight. The deceased's suspicions that the appellant may have mildly drugged him on previous occasions certainly could not mean she murdered him on 9 August 2006. But when all the evidence is reviewed, the impugned evidence becomes more significant. It is directly relevant to the two key issues in the trial, namely, whether the appellant killed the deceased in self-defence or under diminished responsibility. Very often, the more relevant the evidence, the more it is likely to be prejudicial. Although it does not seem Dr Van Der Hoef placed much weight on the impugned evidence,^[17] it was capable of supporting the prosecution's contention that the appellant killed the deceased with premeditated intent rather than in self-defence or whilst acting under substantial impairment of one of the capacities in s 304A Criminal Code 1899 (Qld).  It was capable of establishing that on occasions before the killing she had trial runs of drugging the deceased in preparation for murdering him.  It was also relevant to the jury's understanding of their relationship.  It was capable of supporting the inference that she was not the more physically vulnerable partner in it, a matter relevant to both self-defence and diminished responsibility. 

68. An appeal from an exercise of discretion such as this will only succeed where the primary judge has erred in exercising the discretion by acting on a wrong principle, taken into account extraneous or irrelevant matters, was mistaken as to the facts, or did not take into account a material consideration: House v The King.^[18]  The appellant has demonstrated no such error here.  The judge was not obliged to exclude the impugned evidence. 

69. It follows, that the first ground of appeal is not made out.

Should the jury have found the appellant not guilty of murder and guilty of manslaughter on the basis of diminished responsibility?

The appellant's contentions

70. The appellant contends that the jury ought to have accepted that the appellant was suffering from diminished responsibility under s 304A and found her not guilty of murder but guilty of manslaughter. Essentially, this is an argument that the jury verdict of guilty of murder is unreasonable or cannot be supported having regard to the evidence under s 668E Criminal Code.

Relevant legislative provisions

71. Section 304A Criminal Code relevantly provides:

304ADiminished 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 or making the omission which causes death in such a state of abnormality of mind (whether arising from a … disease …) as substantially to impair … the person's capacity to control the person's actions, or the person's capacity to know that the person ought not to do the act … 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."

Conclusion on the second ground of appeal

72. It is true that the jury could have accepted the unequivocal evidence of Dr Fama that the appellant was suffering from an abnormality of mind (depression) so as to substantially impair both her capacity to know she ought not kill the deceased and her capacity to control her actions. But the prosecution called rebuttal evidence from Dr Van Der Hoef. She considered the deceased was suffering from a depressive illness and therefore from an abnormality of mind at the time of the killing.  She also considered that at the time of the killing the appellant's capacity to control her actions and to know she ought not kill the deceased may have been substantially impaired, but only if the deceased threatened to attack or attacked the appellant immediately before the killing.  If the appellant was asleep in his chair at the time of his killing, she did not consider the appellant's relevant capacities were substantially impaired within the meaning of s 304A. 

73. The appellant bore the onus of establishing diminished responsibility under s 304A(2).  The appellant was not a reliable historian.  She claimed to have no memory of established events, including her incriminatory internet searches, the killing itself, and her note writing shortly after.  There was no independent evidence that the deceased physically assaulted her prior to the killing.  When medically examined the following day, she had no visible injuries.  The jury were entitled to conclude on the evidence that they were not satisfied that the deceased assaulted her immediately before she killed him.  They were also entitled to prefer Dr Van Der Hoef's evidence to Dr Fama's.  If so, they would inevitably conclude that although the appellant was suffering from an abnormality of mind (depression), none of the relevant capacities under s 304A were substantially impaired at the time of the killing. 

74. It follows that after considering the whole of the evidence the jury I am satisfied the jury were entitled to convict the appellant of murder.

75. The second ground of appeal also fails.

ORDER:

The appeal against conviction is dismissed.

76. WHITE JA:  I have had the advantage of reading the reasons for decision of the President and agree with those reasons and the order which the President proposes dismissing the appeal.

77. ANN LYONS J:  I agree with the reasons of McMurdo P and with the proposed order.