Not Guilty Verdict For Murder Due To Mental Illness

The defendant was found not guilty of murder and related offences due to mental illness, as per the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant was unfit to stand trial and was assessed by forensic psychiatrists who concluded that the defendant was not responsible for their actions due to a disordered state of mind.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2021] NSWSC 45 Hearing dates: 3 February 2021 Date of orders: 05 February 2021 Decision date: 05 February 2021 Jurisdiction: Common Law Before: Hidden AJ Decision: (1) As to the offence of murder charged in the indictment, the [NAME] is found not guilty by reason of mental illness. (2) As to each of the charges, sequences 2 to 5 in the s 166 certificate, the [NAME] is not guilty by reason of mental illness. (3) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the [NAME] is to be detained at a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. (4) The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. (5) The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of these orders, and to provide to the Tribunal the following documentation: (a) a copy of this judgment and the orders; (b) the transcript of the trial; and (c) the medical reports of [NAME] dated 4 February 2019, and [NAME] dated 23 February 2020 and 27 January 2021. Catchwords: CRIMINAL LAW – murder – related offences on s 166 certificate – defence of mental illness – found not guilty of all offences by reason of mental illness Legislation Cited: Criminal Procedure Act 1986 (NSW), s 166 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16, 19, 22(1)(b), 38, 39 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 R v [NAME] [2020] NSWSC 1267 R v Deakin [2021] NSWSC 20 Stapleton v The Queen (1952) 86 CLR 358 The King v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) [NAME] (Defendant) Representation: Counsel: [redacted] P [NAME] (Defendant)

Solicitors: [redacted] [NAME] (Defendant) File Number(s): 2018/261828 Publication restriction: Nil

JUDGMENT 1. The [NAME], is charged with the murder of [NAME] at Carramar on 25 August 2018.

2. Because of mental illness he is unfit to stand trial. Following the appropriate procedures under the Mental Health (Forensic Provisions) Act 1990 (NSW), he is before me, sitting without a jury, in a special hearing under s 19 of that Act. As will be seen, the only issue is whether he should be found not guilty by reason of mental illness, a verdict available at a special hearing by s 22(1)(b) of the Act.

3. The evidence is before me in documentary form in a Crown court book. Included in that book are the statements of a number of witnesses and reports by two respected forensic psychiatrists. The evidence relating to the fatal incident is succinctly, but adequately, summarised in a Crown case statement. The [NAME] is also charged with some lesser offences in the lead up to the incident and the aftermath of it, which are set out in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

The incident 1. At the time of the fatal incident, the [NAME] was 18 years old and was living with his mother at Airds. He has a history of mental illness, and on 8 August 2018, 17 days before the incident, he had been discharged from the Waratah Mental Health Facility at Campbelltown under a mental health community program.

2. On Friday, 24 August 2018, the [NAME] left home in the early evening, and spent that night and half the following day in the areas of Canley Vale, Cabramatta and Carramar in the company of two other young men: [NAME], who had not been known to him, and [NAME], who was known to both of them. It is unnecessary to record his movements over that lengthy period. It is sufficient to say that during this time he consumed alcohol and later smoked cannabis.

3. At times the [NAME] was observed to behave in a disturbed, apparently irrational, manner. In the Carramar area, where the cannabis was smoked, [NAME] noticed that the [NAME] was looking at him strangely. A little later he saw the [NAME] muttering and mumbling to himself, saying something to the effect that he had killed someone. He was also seen to start going through the bags of people waiting at a bus stop. Later again, he punched [NAME] for no apparent reason. This gave rise to a charge of common assault on the s 166 certificate.

4. By this time it was after midday on 25 August. Thereafter, CCTV footage depicts the [NAME] walking in the Carramar area, mumbling and unsteady on his feet. At about 1pm he was observed by a witness, [NAME], to be walking on [ADDRESS], Carramar in the middle of the road, swaying and uneasy on his feet. [NAME] was the partner of [NAME], and they lived in a unit in a complex on [ADDRESS]. He was outside at the time.

5. He saw the [NAME] approach the unit complex, where he chased a small cat down the side of a unit block. He returned to the front of the building, where he was shadow boxing for a short time. He then collapsed on his back in the front garden of the units. [NAME] phoned [NAME], who was in their unit, and asked her to call police and ambulance because he thought the [NAME] had collapsed and may need assistance.

6. The [NAME] got up and walked towards the back of the unit complex. He was seen to remove his shoes and continue to walk in his socks. [NAME] observed him to look confused. At this time, [NAME] emerged from the block of units. 7. [NAME] warned her not to approach the [NAME] in case he was dangerous. However, she did approach him, although [NAME] did not observe any conversation between them. She began to walk away from him, but the [NAME] punched her, causing her to fall to the ground, and stomped on her head three times. She was, of course, not known to him and had done nothing to provoke such an attack. The [NAME] then walked past [NAME] towards the street. He did so casually, as if nothing had happened, and to [NAME] he appeared "disconnected from reality as if he was not aware of where he was or what he was doing".

8. The incident was witnessed not only by [NAME] but also by two other residents of the units, who were nearby in a car.

9. Police and ambulance were called. The ambulance officers observed a great deal of blood around [NAME]'s head and could detect no signs of life. They pronounced her life extinct.

10. Two police officers arrived. They saw the [NAME] standing a short distance from [NAME] and observed him to be swaying from one foot to the other, making a groaning sound, while staring at her. The officers approached him and told him to sit down. He immediately punched one of them, giving rise to a charge of assaulting an officer in the execution of his duty on the s 166 certificate. That officer discharged a burst of OC spray in the [NAME]'s direction, but it had no effect on him and he ran behind the units and onto [ADDRESS]. There he was apprehended, but he resisted arrest by kicking his legs and striking out with both his arms. He was handcuffed with some difficulty, and was wrestled by the officers and forced into the rear of a police truck. This conduct gave rise to two charges of resisting an officer in the execution of his duty on the s 166 certificate.

11. On post mortem examination, [NAME] was observed to have extensive bruises, abrasions and lacerations to her face and upper limbs, extensive skull and facial fractures, extensive subarachnoid haemorrhage, and fractures to the right clavicle and one of her ribs. The cause of death was determined to be blunt force head injuries, although marked coronary artherosclerosis and chronic obstructive pulmonary disease were found to be contributory. She was 64 years old.

12. Upon his arrest, the [NAME] was taken to Fairfield Police Station. There he was observed to be apparently drug affected and, generally, of unsound mind. He told the police that he had smoked two cones of cannabis about three hours earlier. When asked if he had taken any other drugs, he mumbled, "Jesus, I take Jesus everywhere". He was later interviewed at some length in the presence of his uncle as a support person. Among other things, he told interviewing police that he had been discharged from the Waratah Mental Health Facility with a prescription for the antipsychotic medication Olanzapine, but he had not taken it for two days prior to the offence. He said that he had killed [NAME] because "God told me that she killed her husband". He later said that he could not remember why he did it.

13. It is not in dispute, and on the whole of the evidence I am satisfied beyond reasonable doubt, that the [NAME] caused the death of [NAME] by deliberate acts. It is at this stage that the defence of mental illness falls to be determined: [NAME] (1994) 179 CLR 500.

The Defence 1. The effect of s 38 of the Mental Health (Forensic Provisions) Act is that the [NAME] must be found not guilty by reason of mental illness if it is established that at the time he inflicted that violence he was "mentally ill, so as not to be responsible, according to law" for his actions. The [NAME] bears the burden of establishing the defence on the balance of probabilities.

2. Whether the [NAME] was not responsible in law for his actions because of mental illness is to be determined according to the common law. The principles have their origin in the nineteenth century M'Naghten Rules, which have been consistently applied in modern authority. Expressed in contemporary terms, what must be established is that, due to a disordered state of mind engendered by a mental illness, the [NAME] either did not understand the nature and quality of his acts or, if he did, he did not know that they were wrong. (The nineteenth century formulation uses the expressions "defect of reason" resulting from a "disease of the mind".)

3. The focus in the present case is upon the second of those alternatives, the [NAME]'s knowledge of the wrongfulness of his conduct. The question to be addressed is whether he appreciated that what he did was wrong morally, rather than simply legally: [NAME] (1952) 86 CLR 358. As Sir Owen Dixon put it in his summing up to a jury in [NAME] (1933) 55 CLR 182 at 189-190: If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

1. As I have said, the [NAME] was assessed by two forensic psychiatrists: [NAME], engaged by the [NAME]'s solicitor, and [NAME], engaged by the Crown. [NAME] interviewed the [NAME] and provided a report in early 2019 and [NAME] did the same a year later, in February 2020. Both experts had been supplied with the prosecution material, and had access to the records of the [NAME]'s psychiatric history. The [NAME] was found to be unfit to stand trial by R A Hulme J on 17 September 2020: R v [NAME] [2020] NSWSC 1267, and also before me is the subsequent report of the Mental Health Review Tribunal, pursuant to s 16 of the Mental Health (Forensic Provisions) Act, which triggered the present special hearing. In their reports both [NAME] and [NAME] expressed their conclusion that the defence of mental illness is made out.

2. The records of the [NAME]'s psychiatric history examined by the two psychiatrists began in May 2017. They are summarised relatively briefly in [NAME]'s report, and at some length in [NAME]'s. It is sufficient to say that the [NAME] was diagnosed as suffering from schizophrenia, demonstrating delusions, auditory hallucinations, thought disorder and paranoid beliefs. Significantly, these symptoms included delusions of a religiose nature, including the belief that he heard the voices of God, the Archangel Gabriel and Lucifer. There were several admissions to hospital, together with periods in the community subject to community treatment orders. His condition was complicated by the abuse of cannabis and methylamphetamine.

3. He was prescribed a variety of antipsychotic medications, with which he was not always compliant. I have noted that he told police that he had failed to take his oral medication for two days prior to the fatal incident. However, on 22 August 2018, three days prior, he had received a fortnightly injection of another medication, Clopixol. To what extent, if at all, his violent conduct could be attributed to non-compliance with medication I cannot say.

4. The [NAME] told [NAME] and [NAME] that on the day of the incident he had been experiencing hallucinations, particularly hearing voices. This, no doubt, is consistent with the observations of unusual behaviour on his part described in the evidence. He reiterated to [NAME] his belief at the time that God had told him that [NAME] had killed her husband. To [NAME], some 16 months after the incident, he said simply that he had been directed to kill her by the "voices". He also ascribed his conduct to the fact that he was "on drugs", a matter which [NAME] addressed in his report. 5. [NAME] affirmed the existing diagnosis of schizophrenia, which he described as chronic and treatment resistant, that is, an illness which had not responded to trials of multiple antipsychotic medications. As to the defence of mental illness, [NAME] expressed his opinion in this way: [NAME] has a history of severe treatment resistant schizophrenia, with ongoing signs of acute psychosis, delusions, hallucinations, thought disorder and a lack of insight at the time of recent assessment. Schizophrenia has been recognized at law as a disease of the mind. His behaviour and thought processes, both observed and reported by [NAME] after his arrest, indicate there was no logical motive for his actions in killing [NAME], who was not known to him and was posing no harm to him. In my opinion, he was likely driven by his religiose and paranoid delusions to kill [NAME], becoming convinced that she had killed her husband as he believed God was telling him this and feeling morally justified in punching her and stomping on her head, actions that proved fatal. He was also insightless into his thoughts at the time being the product of mental illness. In my opinion, he was aware of his actions at the time but was not aware that his actions were wrong according to the standards of McNaugten/ordinary people, meaning he has the mental illness defence available to him. 1. [NAME] also diagnosed the [NAME] as suffering from treatment resistant schizophrenia. He considered that his smoking of cannabis shortly before the incident "likely destabilised his psychotic disorder and also likely had direct intoxication delirium effects on his mental state". However, he did not see this as determinative of the defence of mental illness. He concluded that the [NAME] had "a pre-existing comorbid schizophrenia disorder and acute intoxication delirium at the time of the alleged offences". In the light of that pre-existing schizophrenic disorder, he was of the view that at the relevant time the [NAME] was "labouring under a defect of reason caused by disease of the mind", adopting the language of the M'Naghten Rules.

2. In his report (clarified by a supplementary report of January 2021), [NAME] expressed the opinion that "at the time of the alleged offences" the [NAME] "likely did not fully know the nature and quality of his act" and, in any event, "did not know that the act was legally or morally wrong" at that time. He concluded that the [NAME] "could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong…".

Accordingly, he saw it as likely that the [NAME] had the defence of mental illness available to him, "suffering from a mental illness so as not to be responsible for his actions…".

3. This expert evidence is compelling, and is consistent with the other evidence in the case. This was a brutal attack, with tragic consequences, upon an unfortunate woman who was a complete stranger to the [NAME], for which no rational motive is discernible. It was plainly the product of mental illness. By suggesting that the [NAME] may not have fully known the nature and quality of his act, [NAME] raised the first limb of the M'Naghten Rules. However, I would not find the defence established on that basis and counsel for the [NAME], did not rely upon it. Both counsel agreed, however, that the second limb of the M'Naghten Rules, that is, whether the [NAME] knew that his acts were morally wrong, is made out. This is clearly the case.

4.

Accordingly, I am satisfied that the [NAME] is not guilty by reason of mental illness of the offence charged in the indictment. The Crown prosecutor submitted that I should deal with the offences (sequences 2 to 5) on the s 166 certificate in the same way. It is fair to say that those offences were committed in the course of the same psychotic episode (and it may be that they were included in [NAME]'s conclusion that the elements of the defence were made out "at the time of the alleged offences"). The Crown prosecutor noted that Beech-Jones J had adopted that approach in dealing with related offences on a s 166 certificate in R v Deakin [2021] NSWSC 20. [NAME] did not seek to be heard on this matter and I consider that to be the appropriate course.

Accordingly, the [NAME] should be found not guilty by reason of mental illness of those offences.

5. Of course, the [NAME] will be detained and will be the subject of what is likely to be a lengthy period of treatment and rehabilitation under the supervision of the Mental Health Review Tribunal.

Verdict and Orders 1. I make the following orders:

1. As to the offence of murder charged in the indictment, the [NAME] is not guilty by reason of mental illness.

2. As to each of the charges, sequences 2 to 5 in the s 166 certificate, the [NAME] is not guilty by reason of mental illness.

3. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, the [NAME] is to be detained at a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

4. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders.

5. The Registrar is to notify the Mental Health Review Tribunal and Justice Health and Forensic Mental Health Network of these orders, and to provide to the Tribunal the following documentation: 1. a copy of this judgment and the orders; 2. the transcript of the trial; and 3. the medical reports of [NAME] dated 4 February 2019, and [NAME] dated 23 February 2020 and 27 January 2021.

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