R v Miller[2016] QCA 69

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I agree with the reasons of Morrison JA and the order he proposes.
2. MORRISON JA:  In the early hours of 8 June 2008 Mr Miller went into the bedroom where his wife was sleeping, armed with a three kilogram log splitter.  He intended to kill her, and did so, hitting her at least three times on the back of the head with the log splitter.
3. He was charged with murder.  On arraignment he pleaded not guilty to murder, but guilty to manslaughter.  That plea was not accepted by the prosecutor.
4. Mr Miller’s evidence at trial was that, about three weeks before, he and his wife had been charged in relation to drug possession and production.  They had each been to prison before on similar charges, and were greatly distressed at the certain prospect of being sent to prison again.  They discussed ending their lives, and methods of doing that.  He said that whilst he intended to kill his wife, it was part of a suicide pact between them.
5. At the trial there was only one issue, namely that when he killed his wife Mr Miller was suffering diminished responsibility.  On 16 May 2012 Mr Miller was found guilty of murder.
6. Mr Miller seeks to challenge the conviction on the sole ground that the verdict was unreasonable and cannot be supported having regard to the evidence.  The basis for that contention is:

1. the evidence established that Mr Miller had a depressive illness and an impaired capacity to know it was wrong to kill his wife;
2. that impairment was substantial and amounted to diminished responsibility within the meaning of s 304A of the Criminal Code; and
3. it was not open to the jury to have accepted the evidence of two psychiatrists, who concluded that there was not a substantial degree of impairment.

7. The issue is whether the Court is of the opinion that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Miller was guilty of murder.^[1]  The task of this Court is to make an independent assessment of the whole of the evidence to determine whether the verdict could be supported.^[2]  That assessment is both as to the sufficiency and quality of the evidence.^[3]

General history

8. Mr Miller and his wife had been partners for over 28 years.  They had married in 2000.  There was considerable evidence that they enjoyed a well-established, close and loving relationship, even though Mrs Miller’s manner of dealing with Mr Miller (and others on occasion) could be abrupt or harsh and, at times, abusive.  Mr Miller’s method of dealing with her harsh manner of speech was to ignore it or absent himself.
9. Mr Miller had once been an alcoholic but had abstained for many years^[4] and was an active member of Alcoholics Anonymous.  He attributed his successful recovery to Mrs Miller’s influence on him.
10. Mrs Miller was once a heroin user but had stopped that habit.  However, she could only stay off heroin if she used cannabis and valium.  She was a long term heavy user of cannabis.^[5]  Mr Miller was tolerant of that habit, and assisted her in the acquisition of the cannabis.
11. In 2003 they had been convicted of drug offences, and imprisoned.  Mr Miller was sentenced to four and a half years, to serve six months; and Mrs Miller to three and a half years, to serve five months.  Mr Miller’s evidence was that each of them found prison an upsetting experience.^[6]
12. On 18 May 2008 they were found in possession of a significant quantity of cannabis.  Mr Miller had established a hydroponic garden at their property, growing cannabis for Mrs Miller’s use.  The charges were of possession and production.  The legal advice they had been given was that they faced a jail term, given the earlier convictions and sentences.  That was a deeply distressing prospect.

Period between 18 May and 8 June 2008

13. Mr Miller’s evidence was to this effect:^[7]

1. every day they would speak about killing themselves;
2. Mrs Miller would say: “Let’s just fucking end it.  Let’s just get it over and done with.  Let’s just do it.”;
3. they spoke about getting prescription drugs to end their lives, but they did not know who had enough drugs to do so;
4. they spoke of shooting themselves, but Mr Miller’s guns had been confiscated in one of the police raids;
5. he suggested that they jump in the car and end it, but she objected, saying: “You can’t do it properly.  You’ll miss.  I don’t want to see it coming”;
6. Mrs Miller would say “I’m going to go and lie down.  I don’t want to wake up in the morning”;
7. she also said she would rather die than go to jail.^[8]

14. Mr Miller said he was largely in a state of hopelessness, where he was unable to function effectively, and despaired of the prospect of jail.^[9]  One friend described them in this way, referring to a change in their attitude after the police raid:^[10]

“And then all of a sudden they were just hopeless. Already planning to go to [jail], you know, as they - it was going to happen and this was the end of their life, sort of thing, end of their - end of everything. There was no way - anything they could do to make it better.”

15. There was some evidence that Mrs Miller had spoken to a friend (in the absence of Mr Miller) about killing herself rather than go to jail, and discussed methods such as being given an overdose of heroin.^[11]
16. However, there was evidence that could have been accepted as contrary to a state of despair and to intended suicide:

1. they met friends during this time, and went to dinner at a friend’s house on Friday 6 June;^[12] the friends’ evidence was that they seemed normal, and in good spirits^[13] even if Mr Miller was a little withdrawn;^[14] but Mr Miller said that was them putting on a front;^[15]
2. when they told a friend that they were going to see a solicitor they did not seem worried;^[16]
3. Mrs Miller arranged to undergo surgery for carpal tunnel syndrome, on 5 June 2008;^[17] she told Mr Miller that she wanted her hand fixed before she went to jail,^[18] and she would need to be able to use her hand while in jail;^[19] she told her surgeon that she wanted it sorted out before the charges were prosecuted;^[20] she expressed a concern to the same doctor as to her ability to get the appropriate pain-killing drugs whilst in jail;^[21]
4. she told a friend that she wanted to get through the court case and see where it led;^[22]
5. Mr Miller did not appear stressed about the prospect of jail but was concerned as to how Mrs Miller was coping with the knowledge of having to go to jail;^[23]
6. the house was kept clean and tidy;^[24] they were anticipating a landlord’s visit on Sunday 8 June;^[25]
7. by 31 May they had started to make arrangements for their animals to be looked after;^[26]
8. Mrs Miller was concerned to collect her glasses from the friends’ house after they had been to dinner there,^[27] and to retrieve a computer from another friend;^[28]
9. the question of suicide was not specifically discussed on the day Mrs Miller died;^[29] and
10. Mr Miller was confident that he could handle prison, even though he was anxious about returning to it.^[30]

17. There was evidence which might cause a jury to doubt that there was a true suicide pact.  For example, some of Mr Miller’s evidence as to his wife’s attitude to jail could be viewed as equivocal:^[31]

“Well, had you and she made any decisions about what was going to happen? What future - what the future had in store for you?-- Perhaps, like me putting on a brave face in front of visitors and friends. With Tracey. Putting on a brave face. Tracey also lives her own life and in the fact that she wanted to get an operation done, that's her business. That’s going to help her down the track in [jail], so be it. But the other side of that coin is that with that sort of operation Tracey’s able to get prescription medication that she’s very, very, I believe in need of, hungry for, and that would have been the two sides to the coin. Get your - get your arm done, get some pills and if you go to [jail] it’s good. But if we decide to do it here, there, right now, at that time that would be good too.”

18. Further, when he was recounting in evidence in chief the effect of the conversations between himself and Mrs Miller, he said that there were “… no firm decisions such as let’s do it on Sunday.  There was no such definition…”^[32].  Then he explained:^[33]

“What are you talking about? What’s - what - what was normal? What was the attitude that you were experiencing from Tracey at that time?-- That attitude from Tracey would revolve along the lines of - that as I said before, that if - if we were driving in the car and Tracey said turn left, we’d turn left - no problems. Perhaps sometimes with our discussion like that nothing was being done. Nothing was taking place - when are we going to fucking end it? Again, for me to - to say to her, “Just jump in the car” - and her reply would be, “I don’t want to see it coming.” So here am I - lost, out of my mind. Here am I hopeless and senseless on what to do, how to do it.

Why was it that it was your responsibility to do something?-- Women are wonderful creatures, and when it suits them it's that way or is it perhaps when something else has to be done it’s his job. This could be that underlying - underlying message from Tracey that - just do it, it’s your job, fix it. These are the words that would come to our table for the last three weeks. I’ve heard them over and over. They’re - they might sound only three or four words or three or four phrases, but I can assure you they were – the vocabulary arrangement and mixture of words is a lot more, but in my head that – that’s how they break down to this is what she said.”

19. That theme was repeated when Mr Miller described his conversation with his wife on Saturday morning, 7 June:^[34]

“There would have again been the what are we going to do, I don’t want to go to [jail], I can't handle [jail]. To - to a point it’s not a - not a plea, but an - something like just do something. Just do something, fix it - just fucking fix it. These are the words that have got bandied around our lounge room and our kitchen and our bedroom for the last three weeks.

How did you feel upon hearing that again on that Saturday night?-- Restless, hopeless.

Why? Why did you feel that way?-- Because I felt - I felt there was nothing I could do. There was nothing within my grasp or my power to do anything to - to - I - I wasn’t Mr Invincible. I was Mr - Mr - Mr Common and normal.”

Events after the death

20. Shortly after his wife’s death Mr Miller left the house, locking it.  He put their three dogs and three bottles of alcohol in the car, and drove away.  In his evidence he said he then intended to kill himself, by driving into a tree.  He drove to a number of places that were associated with their past life, including Agnes Waters, Gin Gin and Childers.  At one point he stopped at a service station and filled the petrol tank.  He spent the night of 8 June in his car, before resuming the journey.  At some point during the journey he consumed the alcohol.
21. In his evidence at trial Mr Miller said he was “looking for a tree to run into, but I couldn’t decide, and I made it to [Agnes] Waters”.^[35]  In the police interview he said that he had been “looking for trees between my house, Agnes Waters and all the way back”, and “[t]rying to find somewhere to end my own life”.^[36]
22. On the way back he was driving down a dirt track when he saw a gyrocopter.  His evidence in the police interview and at trial was that he thought it might be a police helicopter, looking for him.  He turned the car around, and then the next thing he remembered was waking up in hospital.
23. Mr Miller had run into a tree and sustained serious injuries.  He was found in his car about 4.40 pm on 9 June 2008.
24. In his police interview Mr Miller said that driving into that tree was an accident, in that he had not selected that tree and did not intentionally drive into it.^[37]  Nonetheless he intended to drive into a tree, and that remained his purpose.^[38]  He gave a contrary version at trial:

1. whilst he had previously seen the tree he ran into, it had no significance to him;^[39]
2. he deliberately drove into it;^[40] and
3. the contrary version in the police record of interview was a lie.^[41]

The psychiatrists’ evidence

25. Three psychiatrists gave evidence, Dr Voita and Dr Grant for the prosecution, and Dr Arthur for the defence.  All gave their expert opinion on the question of whether there was that degree of impairment that would qualify as diminished responsibility.  As to that Dr Arthur concluded there was, and the other two concluded there was not.
26. The history of Mr Miller’s treatment and admissions to hospital for psychiatric treatment revealed that he was diagnosed with alcohol induced schizophrenia in 1992,^[42] had continued treatment over the next two years,^[43] and diagnosed with a bi-polar affective disorder in 1999.^[44]  He was on lithium for many years after 1999, but did not require specialist treatment after 1999/2000.
27. Dr Arthur reviewed the history^[45] and the evidence given at the trial.  He concluded that Mr Miller’s abstinence from alcohol brought about the cessation in his psychotic symptoms and perturbations of mood.  He considered the symptomology described by Mr Miller in the period leading up to 8 June 2008, and concluded that Mr Miller’s mood was starting to become unstable and he was suffering depression.^[46]  In cross-examination he described it as a “depressed phase of his bipolar disorder”.^[47]  He described Mr Miller’s condition:^[48]

“I think that his - his thinking shows that he really didn’t have a lot of ways of problem solving, and that he wasn’t able to sit down in a logical manner and think about the different ways that he may be able to cope with this situation or he and his wife may be able to cope. I think that - certainly his descriptions of - of his mood and the way that he was coping leading up to the offence, suggested that he was not in control of his mood, and he was not able to regulate that in a - in a reasonable way and so putting those things together I think that that’s, to my mind, that's indicative that - that he was actually quite unwell at that stage.”

28. Dr Arthur identified the significant factors that led him to his conclusion as: (i) Mr Miller’s descriptions of the way he was thinking; he was totally preoccupied with negativities, a sense of responsibility for the situation, and a sense of hopelessness and inevitability; and (ii) his inability to sleep; “for someone who has a diagnosis of [bi-polar] disorder, not sleeping for three days … is a very, very bad sign”.^[49]
29. As to the sense of responsibility, Dr Arthur said:^[50]

“I think he was preoccupied … with that sense of responsibility that … it was up to him to do something about it, … and I think that it’s with someone you know who’s depressed who feels that it is their fault and therefore, you know rather than externalising that and saying, well, there’s two people involved in this process, … he brought it down to just himself, and that … he was responsible for action - he was responsible for solving the problem.”

30. Dr Arthur considered that Mr Miller’s crashing into the tree was “on the balance of probabilities … a suicide attempt”.^[51]  He went on, that an attempt to take one’s own life was “consistent with someone … who has a significant mood disorder, most likely depression”.^[52]
31. Dr Arthur’s conclusion as to Mr Miller’s state of mind at 8 June 2008 was expressed in these terms:^[53]

“I think … that Mr Miller … certainly had a disturbance of his mind and … longitudinally looking at his history, he’s been given a diagnosis of bipolar disorder which is probably accurate if one looks at the criteria for bipolar which is the presence of major depression as well the presence of at least one episode of hyper mania or mania. So I think that’s a valid diagnosis for Mr Miller, but also his alcoholism was the most common trigger, if you will, that would bring on exacerbations and make that condition evident and make the symptoms a lot worse. I think that Mr Miller was placed in a position where … he felt cornered, that … he couldn’t find an easy way out. I think that he developed a mood state which I will … call depression. He had enough features that with a bipolar history I would say that’s consistent with a depressive episode. I think he wasn’t thinking rationally. I think that he had typical cognitions of someone who was depressed, the hopelessness that I’m going to call it guilt, although he doesn’t say guilt, but that sense of responsibility and that ownership of the problem, and his inability to problem solve and find a reasonable way out of it, and certainly that increased level of suicidality and the fact that he attempted suicide fits … with that, and I think that what we see after the event … is his quite - I would call it a pathological coping strategy … of denial, emotionally, that his wife is actually dead which I suppose … is consistent with someone who’s quite emotionally disturbed.”

32. Dr Arthur concluded that Mr Miller was not of unsound mind in the sense that he had not lost the capacity to know what he was doing and to control himself.^[54]  He then continued, dealing with the question of impairment of capacity:^[55]

“On some level he knew what he was doing and he could control himself and … he knew … he shouldn’t do it, but I think that his capacity to know that he oughtn’t … to kill his wife was impaired and I think it was impaired: (a) because he was … depressed and hopeless and he saw no way out. I think he truly believed that what he was doing was the right thing to do at the time which was to relieve his wife’s misery as he’s consistently reported. … I think that afterwards, you know, the intention was that he was going to kill himself, which he attempted to do, and I don’t think that he was able to problem solve and I don’t think … he had the capacity to actually think his way out of this problem. So to my mind, I think that that shows that … there was an abnormality of mind sufficient to impair that capacity.”

33. Dr Arthur considered that it was a substantial degree of impairment in Mr Miller’s capacity to know what he was doing was wrong, and explained that the factors on which that conclusion was based were: (i) Mr Miller’s consistent descriptions of what was going through his mind; and (ii) his behaviour during and after the event.^[56]
34. In cross-examination Dr Arthur agreed that:

1. his diagnosis was based on the symptoms described by Mr Miller and depended on the truthfulness of those descriptions; if Mr Miller was lying about them then his opinion was without foundation;^[57]
2. the change in mood seen by Mr Miller’s friends could have been a function of the fact that Mr Miller was facing legal problems;^[58]
3. the lynch pin of his conclusion was the original diagnosis of bipolar disorder;^[59]
4. given that Mr Miller was assessed by a psychiatric registrar after the collision with the tree, and no signs of depressive disorder were detected, that could suggest the signs detected by the friends were also not signs of depressive disorder; and if that were so, then it could mean that Mr Miller was not suffering from a depressive disorder;^[60]
5. if Mr Miller did not drive the car into the tree in an attempt to kill himself, that did not necessarily mean that he was not suffering from a depressive disorder;^[61]
6. that Mr Miller’s concern at seeing the gyrocopter might indicate that he thought what he had done was wrong, but that was not inconsistent with his having an impaired capacity to know he should not kill his wife;^[62] that was because he might kill his wife for his own reasons but still acknowledge that others would see it as wrong, or he, himself, retrospectively would think it was wrong;^[63]
7. during the assessment that Dr Arthur made of Mr Miller, they did not specifically talk about Mr Miller’s concerns about him going to jail, but “mostly talked about his preoccupation with his wife going to [jail] and … how she felt about that and then in turn how that made Mr Miller feel”;^[64]
8. Dr Arthur’s conclusion that Mr Miller was preoccupied with the issue of jail and could not see a way out of going to jail, involved a large level of value judgment on Dr Arthur’s part;^[65]
9. being able to plan for the future, for example by making plans to take care of the house and animals, is inconsistent with someone who is preoccupied with the prospect of going to jail to the point where they cannot reason beyond it; and commonly such a person would not keep the house tidy, go to much trouble for a visitor, or be concerned about a minor operation;^[66] and
10. the conclusion that the impairment of capacity was a substantial impairment was a value judgment on Dr Arthur’s part.^[67]

35. The importance of Mr Miller truthfully recording that he intended to kill himself as well as his wife, was shown in the following passage of cross-examination concerning Dr Arthur’s conclusion of impaired capacity:^[68]

“What I’m suggesting to you is that … there are several strands to your reasoning towards his capacity being impaired-----?-- Yeah.

-----and a significant one seemed to be that he was in a desperate situation, he felt no choice, and he killed Tracey and then tried to kill himself?-- That’s correct.

Whereas if he didn’t try and kill himself that seems to be inconsistent with the rest of your line of reasoning as-----?-- Or he changed his mind.

Or he changed his mind?-- Mmm.

Okay. So - but if he hasn’t posited a change of mind, if he hasn’t said he changed his mind, if, right from the start he never intended to kill himself-----?-- Mmm.

-----you still hold with your original view?-- I think that if he had no intention of killing himself then certainly that would lead me to question the voracity [sic] of his symptoms, yes.

Right. Because that’s a centrepiece in your whole line of reasoning, isn’t it?-- Well, certainly, it’s a logical conclusion to that line of reasoning, yes.”

36. Dr Arthur was asked to say what it was about the events after the wife’s death that led him to conclude that Mr Miller’s capacity was impaired.  His first reason was that “they both agreed at some level that she wanted to die”.^[69]  He then explained that the suicide pact was an “implicit agreement” as related to him by Mr Miller.  The cross-examination proceeded in the following passage:^[70]

“If … the jury were to take the view that that wasn’t present there was no suicide agreement, would you still-----?-- I think the fact that they were - Mr Miller was thinking about it and then he believed there was a suicide agreement certainly was relevant that he could see no better way of coping with the situation than suicide.

…

All these factors depend on what Mr Miller has said?-- of course.

And if he’s not truthful and reliable about these factors then your diagnosis and your opinions are without foundation?-- Certainly less credible yes.

Well they’re without foundation; aren’t they? If he hasn’t been truthful and reliable about these symptoms?-- Mmm. Mmm.

The way he was thinking?-- Mmm.

Then your opinions are without foundation; aren’t they?-- Or you have to question the - all the information he’s given. Some people can be truthful about some things and not others. But, yes, you have to question that, yes.”

37. Dr Voita reviewed all the material that Dr Arthur had, as well as the transcript of his evidence, and had assessed Mr Miller.  She concluded that his early history in 1999 fitted a diagnosis of bipolar affective disorder rather than schizophrenia.^[71]  However, her opinion was that at 8 June 2008 he did not meet the criteria for an acute episode of bipolar disorder, nor any other abnormality of mind.^[72]  That conclusion included consideration of the accounts of the Millers’ friends.  Dr Voita said:^[73]

“… there really wasn’t sufficient symptoms evident to fulfil the criteria for a major mental illness that – you know, I’m not saying that he wasn’t under stress at the time, but my view was that that was in keeping with the stressors in his life not actually a mental disorder or illness.”

38. Dr Voita’s opinion was that Mr Miller did not have impaired capacity to know that he should not kill his wife.  She explained her reasons:^[74]

“From my point of view, first of all, Mr Miller doesn’t fulfil criteria for, in my opinion, for major mental illness or a disease of the mind or an abnormality of the mind. There is evidence to suggest that he certainly was aware of the nature of his actions because there are three limbs to the issue of impairment or deprivation of capacity. So one is about knowing the nature of one’s actions, the second one is about knowing that one ought not do the act, so it’s about knowing right from wrong, and the third capacity is the capacity of control and I think in the evidence that has been presented at trial when I’ve read the transcripts, and particularly Mr Miller’s account, I still hold the opinion that he wasn’t impaired or deprived of those capacities.”

39. Dr Voita also saw significance in Mr Miller’s reaction to seeing the gyrocopter:^[75]

“Just on that issue of him perhaps connecting the gyrocopter with the police, is that particular comment by him consistent or inconsistent with him having a capacity to know he ought not to kill Tracey?-- Yes …  in my view … it attests to the fact that he could not be sort of deprived or impaired of the capacity to know that he ought not do the act. I mean, if he’s evading police or knows that the police are following him that’s in a way a way of knowing that what he did was wrong, that the police are actually after him.”

40. Dr Voita considered that the giving of two different versions of why Mr Miller drove into the tree^[76] was significant to her conclusion as to capacity.  The passage of her evidence where she explained why that was so was the centre of contentions by Mr Miller’s counsel, that she had misunderstood the evidence as to suicidal intent:^[77]

“… my understanding is that … Mr Miller’s account is that there was a suicide pact, shall we say, that’s why he killed Tracey, but then he reports to police after the fact that the accident happened, it was an accident, he didn’t intend to kill himself. I mean, if it was a suicide pact in my mind also why did he actually leave the house, why didn’t he kill himself then? I mean, that’s one question I have … in my mind. He’s now sort of given a different account which is to say that he intended … to kill himself. I think … there’s a question mark in my mind about that as well, particularly looking at the evidence of … the crash because it does appear that he actually didn’t hit … the tree sort of head-on, which is what … he claims. There’s also the issue that he’s admitted that he drank alcohol prior to – to the-----

You mean after?-- Yeah, prior to this - his so-called suicide attempt.

Sorry?-- Yes. I wondered about whether that impaired his judgment. It may have impaired his driving. He’s also reported that he thought that the police were possibly following him. He saw the gyrocopter and that’s what distracted him, so that’s quite different to what he’s subsequently stated.”

41. Shortly after giving that evidence, Dr Voita was asked about her conclusion as to the absence of impairment, and whether she accepted or questioned the symptomology described by Mr Miller.  She said that it was “really important” there was evidence that Mr Miller was not suffering from depression, and continued:^[78]

“The … other factor is to do with how he has self-reported … the suicide. I think that it is concerning, actually, that there are two sort of self-reports, and again, I think that … we need to just look at sort of the evidence of what actually happened at the time because you know impairment and I suppose deprivation is not something that’s there for an extended period of time, and when one looks at these issues one just looks at how it pertains at that time.

Mmm-hmm?-- I can’t explain why there’s two different sort of versions. It’s just that when I look back and some of the evidence is how Tracey presented to others and things that were said, … I wasn’t convinced that there was sort of a suicide pact. It appears that that sort of evidence and the fact that Mr Miller sort of reported later down the track that you know the accident was … a suicide attempt, that came later. I mean I guess all I can say that those two accounts are actually inconsistent.”

42. As can be seen in that passage, Dr Voita’s opinion was that the events leading up to, and at, the time that Mrs Miller was killed were more important to her conclusions than the later explanations by Mr Miller that hitting the tree was an attempt at suicide.  Her opinion was that the earlier conduct did not suggest a genuine suicide pact.^[79]
43. Importantly, Dr Voita’s opinion was that, on either of Mr Miller’s accounts, i.e. whether hitting the tree was an accident or not, he did not suffer impairment of capacity at the time he killed his wife.^[80]
44. Dr Grant reviewed all the material including the evidence given by Dr Arthur.  He also assessed Mr Miller.  As to the historical diagnoses, Dr Grant disagreed with that of schizophrenia, and doubted that Mr Miller ever had bipolar affective disorder.^[81]
45. His conclusion was that at the time of killing his wife, Mr Miller suffered from a “relatively mild abnormality of mind … called an adjustment disorder, with depressed and anxious mood”.^[82]  He explained the symptoms of an adjustment disorder as including stress or trauma induced nervousness, a sense of doom, depressed mood, trouble sleeping, being tearful, and difficulty in concentrating.^[83]  His opinion was that Mr Miller “described a number of symptoms which … exceeded the understandable reaction to his situation”, which led Dr Grant to the conclusion of his having some abnormality of mind.^[84]
46. Dr Grant’s opinion was that there was probably some impairment of Mr Miller’s capacity to know that what he was doing was wrong, but it was not a substantial impairment.^[85]  He explained the basis for that conclusion:^[86]

“Now what indicates to you that there was perhaps mild impairment, but not a substantial impairment of that capacity to know he ought not to kill Tracey, for want of a better description?-- Well, he was very preoccupied with the situation, as was Tracey apparently, very anxious about the situation. He describes finding it difficult to see a clear future, being able to see a positive future, being able to think clearly about alternative actions that might relieve their stress and distress. So I think that … he was thinking quite negatively and that that might have impaired his ability … to understand it fully, that he shouldn’t do certain actions or that there weren’t alternatives to that action.

What’s the difference between that and, in your view, a substantial impairment?-- Well, I think a substantial impairment would mean that he would really not be able to think at all well about that situation, not be able [to] contemplate what actions he should take, whereas in this case, he was able to think about the situation to some extent, he was able to plan and talk to friends about it, to plan what was going to happen to his house if he went to [jail], what would happen to his dogs and his horses and make arrangements for that, and able to see that there are things that he could manage and so on, … a substantial impairment would have been that … he’d come close to not being able to understand his actions were wrong, which would be more, you know, a complete loss of understanding would be a deprivation of that capacity would be a different matter all together. In his case, I think there was just some impairment of that capacity, but if he was calm and talking to friends, he could rationalise and think through it, and it wasn’t substantial impairment in my view.”

47. Dr Grant said his opinion was not dependent upon accepting whether hitting the tree was accidental or not, nor was it influenced by the evidence that Mr Miller was worried about the gyrocopter.^[87]  Similarly, Dr Grant did not rely on the evidence of Mr Miller’s post event conduct.^[88]
48. Dr Grant identified the significant aspects of the evidence for the purposes of his conclusion.  They were: the lack of objective evidence of significant impairment in his ability to organise himself; he was organising for the care of his animals, organising for the care of the house, and organising for an inspection of the house by the landlord.^[89]
49. The fact that the psychiatric registrar did not identify symptoms of any serious psychiatric disorder or significant depression was, in Dr Grant’s opinion, consistent with his conclusion that “the most serious condition [Mr Miller] had prior to the killing was an adjustment disorder which was relatively mild in psychiatric terms, and that in the period afterwards he was experiencing grief and adjustment symptoms but no more serious depression then”.^[90]
50. In cross-examination, Dr Grant adhered to his opinion as to the degree of abnormality of mind and the degree of impairment of capacity.  He accepted that conclusions on those matters were “always a question of degree”, explaining:^[91]

“… clearly [Mr Miller] was facing a very serious thing in his life, something awful had happened. He was probably going to [jail]. He was or he was in [jail] after it … but he was facing [jail], and one would expect that you would have a pretty strong emotional reaction to such a situation. So a degree of sleepless disturbance, of not feeling like eating, of not necessarily wanting to mix too much with people, of feeling ashamed or whatever might be expected, and he described a lot of those things. It’s a matter of judgement then whether a psychiatrist thinks that those symptoms have gone a bit further than one would expect or seriously further than one would expect in order to make a diagnosis of an actual abnormality of mind. And my view was that he was describing fairly significant symptoms, but not enough to say that he had a depressive illness, but enough to say that he had an adjustment disorder. A little bit more of emotional reaction than … one would normally expect.”

51. Dr Grant explained that in addition to the adjustment disorder, Mr Miller had underlying personality and emotional issues that were related to his attitudes and beliefs relevant to the actions he took, but not related to illness.^[92]

Discussion

52. On appeal, it was accepted that there was evidence at trial that could, as a matter of law, sustain the verdict.  The sole contention was that this Court could not be satisfied, on the whole of the evidence, that it was open to the jury to not be satisfied as to Mr Miller’s diminished responsibility.^[93]
53. The contention was that Dr Voita evidently misunderstood the evidence, in particular that in the police record of interview, where Mr Miller said that whilst he accidentally hit the tree he was nonetheless intending to commit suicide by hitting another, previously selected, tree.  The misunderstanding was said to be evident in the passage quoted above in paragraph [40].  For that reason, it was said that the jury should have rejected her evidence, and been satisfied on the basis of Dr Arthur’s evidence that there was diminished responsibility, or at least been in a position where they could not be satisfied, on the balance of probabilities, that Mr Miller’s capacity to know that he ought not kill his wife, was substantially impaired.
54. In my view, there are several reasons why that contention cannot be accepted.
55. First, the essence of Dr Voita’s point in the relevant passage was that if there was a genuine suicide pact Mr Miller would not have driven away from the house but put it into effect then and there: “I mean, if it was a suicide pact in my mind also why did he actually leave the house, why didn’t he kill himself then?” That construction of her evidence is supported by the passage referred to in paragraph [41] above.  Further, when regard is had to her evidence in re-examination, referred to in paragraph [43] above, it is evident that her opinion did not depend on acceptance of either version of why he hit the tree.  There was no misunderstanding on her part.
56. Secondly, even if Dr Voita’s evidence could be put to one side, there is no reason shown why the jury should not have preferred Dr Grant’s evidence to that of Dr Arthur.
57. Thirdly, it was open to the jury to reject the evidence of Mr Miller as to the suicide pact, and that he believed the killing of his wife was her wish and not wrong.  Senior counsel for Mr Miller accepted before this Court that his argument had to go so far as to say that the jury were not entitled to disbelieve Mr Miller.^[94]  In my view, that cannot be made out.  The jury had the important advantage of having seen and heard Mr Miller’s evidence.  The evidence referred to in paragraphs [16] to [19] and [24] above may well lead the jury to reject his evidence.  So, too, could Mr Miller’s answer in this exchange:^[95]

“So, sir, what I suggest to you is that you never understood that when Tracey went to bed on Saturday night that she wanted you to kill her? Do you agree or disagree?-- I have to agree.”

58. Fourthly, having made an assessment of the whole of the evidence myself, I am of the view that it was open to the jury to accept the evidence of Dr Voita and Dr Grant, and reject the evidence of Mr Miller, and thus be satisfied beyond reasonable doubt that Mr Miller was guilty of murder.^[96]

Conclusion

59. For the reasons expressed above I would dismiss the appeal.
60. I propose the following order:
    1. The appeal is dismissed.
61. PHILIP McMURDO JA:  The sole ground of appeal is that the verdict was unreasonable in that the jury was bound to find that the defence of diminished responsibility was proved.  I agree with the judgment of Morrison JA on that question but wish to add something about the evidence of Dr Grant.
62. Dr Grant accepted that the appellant was in a state of abnormality of mind which possibly impaired his capacity to know that he ought not to kill his wife.  But Dr Grant said that this capacity was not substantially impaired.  Rather it was a “mild” impairment or an impairment “to a small degree”.  At another point (in a passage set out by Morrison JA) Dr Grant said that a person with a substantial impairment would “come close to not being able to understand his actions were wrong”.
63. When reading this evidence, my concern was that Dr Grant had used an incorrect meaning of “substantially” in this context.  The word “substantially”, like the word “substantial”, has more than one meaning.^[97]  But the meaning of “substantially” in s 304A of the Code is well established.  In R v Biess^[98] it was held that “substantially” refers to an impairment which is “something between trivial or minimal and total”.^[99]  Hart J there said that there could be no objection to a psychiatrist opining on the issue of whether a relevant capacity had been substantially impaired, as long as the meaning of the expression “had been legally interpreted for him and for the jury”.^[100]  Hart J said:^[101]

“The range of meaning of substantially was a question of law, and the asking of questions, without explanation, in terms of the section forced the doctor to indulge in legal interpretation.”

64. Similarly, when sitting in the Court of Criminal Appeal of New South Wales in Chayna v R,^[102] Gleeson CJ said that the weight of the evidence of psychiatrists who had given their conclusions on the ultimate issues in a case of diminished responsibility was less for the fact that this evidence necessarily involved, in part, the psychiatrists’ own opinions upon the meaning of the relevant provision of the Crimes Act 1900 (NSW).  Gleeson CJ said that of more importance were the observations which the psychiatrists made about the appellant and their opinions on psychiatric matters.
65. The language used by Dr Grant, in describing the degree of impairment of the relevant capacity, suggests that he may have had in mind a higher threshold than something more than trivial or minimal.  However his evidence as a whole did not support the appellant’s case.  He described the appellant’s behaviour as indicating a certain rationality.  And in several places, his opinion as to the fact of any impairment was expressed no higher than in terms of a possible impairment.  Ultimately therefore, there was no impact upon a fair trial from the way in which Dr Grant was asked by counsel to say whether the capacity was substantially impaired, without instruction as to what that meant in the context of s 304A.
66. For the reasons given by Morrison JA, the appeal should be dismissed.