Regina v Lance Vivian STEPHENS [1999] NSWSC 811

New South Wales Supreme Court CITATION : Regina v Lance Vivian STEPHENS [1999] NSWSC 811 CURRENT JURISDICTION : Criminal Jurisdiction FILE NUMBER(S) : 70004 of 1998 HEARING DATE(S) : 2 July 1999 JUDGMENT DATE : 9 July 1999

REGINA

PARTIES : v

LANCE VIVIAN STEPHENS JUDGMENT OF : Levine J

M Macadam Q.C. (Crown) COUNSEL : G Nicholson Q.C. (Accused) D Sanderson (Crown) SOLICITORS : Michael Dakin & Associates (Accused) CATCHWORDS : Murder - defence of mental illness - Law Reform - Bail Act 1978 - Mental Health (Criminal Procedure) Act 1990 Bail Act 1978 ACTS CITED : Mental Health (Criminal Procedure) Act 1990 Criminal Procedure Act 1986 DECISION : See paragraphs 39-41

(Revised)

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION GRAFTON No. 70004 of 1998

JUSTICE DAVID LEVINE

FRIDAY 9 JULY 1999

REGINA v LANCE VIVIAN STEPHENS JUDGMENT (Murder - Defence of Mental Illness - Law Reform - Bail Act 1978 - Mental Health (Criminal Procedure) Act 1990) ) 1 HIS HONOUR: On 19 March 1999 before Barr J, Lance Vivian Stephens was indicted for murder and pleaded not guilty. 2 Before me at Grafton on 2 July Mr Stephens adhered to his plea. 3 On 28 June 1999, on the advice of his solicitor and counsel, Mr Stephens, pursuant to s 32(1) of the Criminal Procedure Act 1986 signed an election to be tried by judge alone. 4 I was informed by counsel, both the Crown Prosecutor and Mr Nicholson, QC, for the accused that no question of any unfitness for trial or to plead existed. 5 There are two issues to be determined. First, whether beyond reasonable doubt on 7 July 1997 at Yamba the accused murdered William Alfred Stephens, his father. The relevant elements of that offence are whether the death of Mr Stephens senior was caused by an act of the accused in stabbing and hitting the victim on the head with a hammer, and whether that act was done with the intention to kill or cause really serious bodily injury. 6 The second issue is the defence of mental illness. The onus is on the accused to satisfy the court on the balance of probabilities that the defence is made out. 7 I heard no oral testimony. The evidence is constituted by exhibit A, which comprises the Crown brief made up of statements of investigating police officers; the transcript of an electronically recorded interview between Detective Senior Constable Barry Smith and the accused at Ballina Police Station on 4 July 1997; a lengthy statement of Alma Marguerete Stephens dated 8 July 1997, the mother of the accused. There is included in the Crown brief matters of physical evidence, including the post-mortem report and two reports of Dr Robert Delaforce, forensic psychiatrist, each dated 1 July 1999. 8 As to the first component, namely the offence of murder, very briefly stated, the facts are that at about 3.50am at the home of his parents the accused came into dispute with his father. The accused struck his father three times to the head with a claw hammer and then stabbed him in the chest and abdomen with a knife. 9 The circumstances leading to this act of violence are set out in Mrs Stephens' statement and need not here be repeated. They eloquently speak of both violence and tragedy. 10 It is quite clear to me beyond reasonable doubt that it was the act of the accused in beating his father on the head with a hammer and twice stabbing him that brought about the death. The material in Mrs Stephens's statement and the final autopsy report prepared by Dr Botterill are conclusive. 11 That it was the accused's intention to kill his father is clear from the nature of the blows struck and from such statements as he made as to the reason therefor, being a belief, shortly stated, that he and his parents were at risk of harm and that he was going to be killed by his parents. The factor, outside the area of mental illness, which on the material available to me clearly brought about the violence was certain perceptions the accused had upon seeing Cortisone ampoules being prescribed medication for his mother. 12 The material tendered in evidence, which I accept, not only discloses that each of the required elements of the offence of murder has been proved beyond reasonable doubt, but that there is available no other matter required to be excluded beyond reasonable doubt by the Crown to establish what in the normal course would be guilt of the crime of murder. 13 I turn therefore to the second component, namely the defence of mental illness. The classic statement of that defence was made 156 years ago in Regina v McNaughton (1853) 8 ER 718 at 722. It has been authoritatively amplified in this country by Dixon J in directing a jury in Rex v Porter (1933) 55 CLR 182 at 189-190. The High Court affirmed the principle in Rex v Sodeman (1943) 55 CLR 191 at 215. 14 The test can be shortly stated: that the accused has to prove on the balance of probabilities that he was labouring under such a defect of reason from a disease of the mind so as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. As Sir Owen Dixon said in Porter at 189-190: "If through the disordered condition of the mind...the accused...could not reason about the matter with a moderate degree of sense and composure, it may be said that he could know that what he was doing was wrong. What is meant by, `wrong'? What is meant by wrong is wrong having regard to the every day standards of reasonable people." 15 These classic and fundamental statements of the law relating to mental illness in this context have recently been considered by Newman J in Regina v Gavranovik (NSW SC 205, unreported, 12 March 1999); Hidden J in Regina v John Charles Maxwell (NSW SC 281, unreported, 30 March 1999); and Greg James J in Regina v Christian Matthew Gillet (NSW SC 115, unreported, 24 February 1999); and R v Geoffrey Williams Noyes (NSW SC 397, unreported, 27 April 1999). 16 The most eloquent summary of the psychiatric evidence is in fact contained in a report tendered by the Crown, being that of Dr Delaforce of 1 July 1999 in which he concluded: "At the time that Mr Stephens killed his father Mr Lance Stephens was suffering from schizophrenia with its florid grandiose persecutory delusions that included his delusional belief that not only was he and his parents at risk of harm, including by invisible snakes and beams from outerspace, but that he was going to be killed by his parents. Because of his delusional thinking at the time that he killed his father he was not able to, as a result of schizophrenia, reason with some moderate degree of calmness in relation to the moral quality of what he was doing at the time. Consequently he was prevented as a result of a defect of reason caused by schizophrenia from knowing that what he was doing was wrong. I would therefore support the defence of mental illness to the charge of murder." 17 Exhibit A is a folder containing five medical reports tendered for the defendant. To each of those reports together with the Crown brief Dr Delaforce had reference. 18 As Mr Nicholson QC remarked on 2 July 1999, his submissions for his client on the law are, "as one" with the those of the Crown and it seems to me that inexorably the conclusion must be reached that on the balance of probabilities, taking into account especially the psychiatric evidence tendered by the Crown, that the position of the defence and the Crown are again, "as one", that the defence of mental illness has been established. 19 There is a uniformity of opinion disclosed in the psychiatric evidence both for the defence and the Crown that at the relevant time the accused was suffering from mental illness constituted by paranoid schizophrenia, which at the crucial moment had reached that stage as described by Dr Delaforce set out above. As was described by Dr Corcos, Senior Registrar in Forensic Psychiatry at Long Bay Corrections Health Service in his report of 17 September 1997 (part of exhibit 1), the accused had, "bizarre and very distressing persecutory delusions" and was, "floridly psychotic at the time of the offence" as a result of the chronic paranoid schizophrenia. 20 In the extraordinary circumstances of this case in the light of the thoroughness of the personal and psychiatric history exposed in the material tendered for the accused and in that for the Crown, I need say no more, that I am satisfied on the balance of probabilities that the defence of mental illness has been made out. 21 I am satisfied therefore that it is appropriate that a special verdict be recorded pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990, namely that the accused is not guilty of murder by reason of mental illness. 22 There remains to be determined the nature of the order to be made pursuant to s 39 of that legislation. 23 It is appropriate however, at this point that I deal with what I see as required by s 37 of that act. 24 Following the making of an order under s 39 of the Mental Health (Criminal Procedure) Act, Mr Stephens will come under the supervision of a body known as the Mental Health Review Tribunal. It is comprised of a president or a deputy president who has qualifications as a barrister or solicitor and two other members, one of whom must be a psychiatrist and the other of whom must be a person having suitable qualifications and experience to serve on that body. After the special verdict the Tribunal will commence a review of Mr Stephens's case at the conclusion of which it may make recommendations to the Minister for Health. The recommendation could be either unconditional or subject to conditions as to the manner in which any detention to which Mr Stephens is subject should continue thereafter and as to his treatment. If the Tribunal was satisfied, but only if it was satisfied, that neither his safety nor that of any member of the public would be seriously endangered by his release, it could make a recommendation for his release. If it makes such a recommendation, that would be considered by the Department of Health, which in turn would advise the Governor. The Governor, in accordance with that recommendation and advice, could either make an order for the detention or for the release, conditional or unconditional, of Mr Stephens. The Governor can only make an order for release when the Tribunal itself has recommended release. 25 After that first hearing of the Tribunal, the Tribunal can at any later time, and must at least once every six months, review the case. After hearing evidence at a later review it could make a recommendation to the Minister as to the continued circumstances of detention, care or treatment or as to release, conditional or unconditional. The Tribunal would not be free at any such review to make a recommendation for release unless it is satisfied that Mr Stephens' safety or that of any member of the public would not be seriously endangered by that release. Again, following such a review or recommendation the matter would go to the Department of Health and the Minister would advise the Governor. Any recommendations so advised would only be carried into effect by the order of the Governor. 26 If from circumstances of detention Mr Stephens was released back into the public on conditions and it appeared that a breach of those conditions took place then the Governor may order that he be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person is released the Department of Health would maintain a watch over his case with the assistance of a community health centre, a private psychiatrist or one of the other public facilities available. If a person is released conditionally back into the community he is subject to the maintenance of that watch over him by the Department and breach would result in the apprehension and detention once again. 27 The conditions upon release include residence, medication and so on to ensure that Mr Stephens was properly cared for and the members of the public were protected. 28 Unless otherwise released conditionally or unconditionally, Mr Stephens will be a forensic patient subject to the appropriate detention. 29 The only way in which a person can cease to be a forensic patient is when he is unconditionally released by the Governor or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. 30 Mr Stephens can never be released until the Mental Health Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public would not be seriously endangered. 31 Consequent upon the special verdict an order is to be made under s 39 of the Mental Health (Criminal Procedure) Act. That section provides: "39. If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court must order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law". 32 The section results from an amendment in 1997 which eliminated the requirement that a person the subject of a special verdict was to be placed in, "strict custody". The purpose of the amendment was to eliminate that wording of the section to enable the person who has received a special verdict to be placed otherwise within that custody constituted by gaol. 33 The section was recently considered by her Honour Judge Karpin in Regina v Keskus on 22 April 1998, her decision being unreported. Her Honour's professional association with this area of the law is well-known. Her Honour appears to have granted bail, "pending the initial determination of the Mental Health Review Tribunal" (p 11). Her Honour's course was followed by Williams DCJ in Regina v J C Hill (3 December 1998). 34 Having considered the Mental Health (Criminal Procedure) Act and having considered the Bail Act I am of the view, with great respect, that the mechanism of the Bail Act is simply not available to effect that "detention" now referred to in s 39. 35 Further, I am of the view that on its proper construction s 39 does not permit of any form of cognate conditional release. The matter has not been considered at first instance by this court, or by the appellate jurisdiction. But if I might say so, this very case, if considered appropriate by others, might be drawn to the attention of the Law Reform authorities for the consideration of either further amendment to s 39 or more particularly a specific provision in the Bail Act. 36 The problem has become acute as exemplified in this case, which is a "country" case. The fact that such cases occur is often overlooked by the people in the capital and the drafters of legislation notwithstanding the otherwise expressed high motives in their endeavours. The practicalities often simply cannot accommodate the section, or the section cannot accommodate the practicalities. 37 It would not accord with the spirit of the purpose of the amendment in this type of case, if I might say so, if upon the finding of a special verdict the making of an order under s 39, the detainee was found in an environment, at least by reason of practical problems, contra-indicated by all the psychiatric evidence and one that is capable of being productive of the undoing of the good that hitherto appears to have been done in this case. 38 In the absence of appellate authority in particular, (and taking into account the very circumstances of this trial itself being in the country) an opportunity, if I may put it this way, has not arisen for the examination of the proposition of whether "detention", as that word is referred to in s 39, can be defined in such a way as to permit the detaining of the person subject to a special verdict in circumstances involving conditions, obligations, residence, curfew, association, attendance for medical treatment, cognate with those presently available under the Bail Act. It may be that another case will provide an opportunity of what I consider to be the importance of that question to be resolved. 39 Pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990 I order that Lance Vivian Stephens be detained at the Richmond Clinic, Lismore Base Hospital. 40 I further order that he comply with the directions of the medical staff thereof and any other medical practitioner whose services he seeks. 41 Until further order, he is there to remain until released by due process of law. ***********