New South Wales Court of Criminal Appeal CITATION : REGINA v DERBIN [2000] NSWCCA 361 FILE NUMBER(S) : CCA 60725/98 HEARING DATE(S) : 29 August 2000 JUDGMENT DATE : 12 September 2000 PARTIES : REGINA v Peter DERBIN JUDGMENT OF : Mason P at 1; Levine J at 78; Greg James J at 79 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70090/97 LOWER COURT JUDICIAL Ireland J OFFICER : COUNSEL : Crown: L M B Lamprati Appellant: J C Nicholson SC SOLICITORS : Crown: S E O'Connor Appellant: D J Humphreys CATCHWORDS : Suffocating with intent to murder - maliciously inflicting grievous bodily harm - mental illness defence - underlying schizophrenic condition affected by alcohol and drugs - extent to which appellant's mental illness affected his capacity to reason - appellant did not know that what he did was wrong - Criminal Appeal Act 1912 s7(4) - ND. DECISION : See par 77 IN THE COURT OF CRIMINAL APPEAL CCA 60725/98 MASON P LEVINE J GREG JAMES J Tuesday 12 September 2000 REGINA v Peter DERBIN JUDGMENT 1 MASON P: The appellant was indicted in the Supreme Court and tried before Ireland J and a jury. He was found guilty on charges of attempting to suffocate Maisie Derbin with intent to murder her and maliciously inflicting grievous bodily harm upon Maisie Derbin with intent to do so. Maisie Derbin is the appellant's mother. 2 There was little dispute as to the primary facts giving rise to the two related charges. The evidence of most witnesses was read from their statements. The only contested issue was the defence of mental illness. 3 The appellant lived with his mother and her father. At the time of the offences, 16 August 1997, the appellant was aged about 22 and his mother was 55. 4 The account of the facts given by Ireland J in his remarks on sentence was as follows: At about 5.30pm on Saturday 16 August 1997 the victim, Maisie Derbin, who was then aged 55 years, returned from her regular employment in a retail department store at Warringah Mall, Brookvale, to her father's home at 65 Gondola Road, Narrabeen, where she resided with her father and son the prisoner. At about 6.30pm the prisoner arrived home from his employment as a storeman at a supermarket located at Warriewood Square, Mona Vale. The prisoner's grandfather arrived home at about 7.30pm. The prisoner left the house and purchased fish and chips for the family's evening meal. At about 8.30pm the prisoner retired to his bedroom and began listening to taped music by the group known as "Metallica". About 9.30pm the volume of the music was increased by the prisoner to the extent that his mother requested him to reduce it, as his grandfather was about to retire to bed. Mrs Derbin tried to turn down the volume, but was restrained by the prisoner, who pushed her away. She fell onto the prisoner's bed and was slapped a number of times by the prisoner with an open hand. Mrs Derbin also slapped the prisoner a couple of times before returning to her bedroom. The prisoner's grandfather twice requested the prisoner to turn down the music, which was playing at very high volume, which the prisoner finally did. The prisoner's mother returned to her bedroom. Some ten to fifteen minutes later, the prisoner entered his mother's bedroom where she was lying on her bed watching television. She described the events which followed in this way: Peter rushed me from the doorway. The first thing I felt was Peter's fist punching me in the face. He punched me a number of times. Peter stuck his fingers down my throat and tried to choke me. Peter was swearing at me through the entire attack. He said things like "you bitch, you whore" and so on. I must have fallen off my bed. I remember hitting the floor. I tried to get away from Peter but he continued attacking me and punching me around the head. I remember calling out for help and calling for my father. He obviously couldn't hear me. I was saying to Peter "I'm your mother, please don't hurt me. Stop hitting me. Don't kill me.". Peter had his fingers in my eyes, he was pulling at them, he was gouging at them whilst I was trying to crawl away on the floor. He was sticking his fingers right in behind my eyes. Everything was black. I remember feeling extreme pain in my eyes whilst he was gouging at them. I was pleading with him to stop and not to kill me. I kept repeating that over and over again. The next thing I remember is still being on the floor. I felt what seemed to be a pillow over my face. It was soft. Peter was pushing down on the pillow over my face. I don't recall hearing Peter say anything. I couldn't breathe. The pillow was suffocating me. That's when I passed out. During the entire attack I was petrified. I have no doubt Peter was trying to kill me. I thought he was going to kill me. I was pleading with Peter to stop. In the course of the assault one of the victim's eyeballs was completely removed, and the other was displaced from the eye socket to the extent that it was no longer viable and required surgical removal. The force employed in the attempted suffocation of the victim was such that a number of her natural teeth were knocked out and her denture was broken. In his video taped record of interview with investigating police officers the prisoner frankly admitted the offences and gave a version of the offences not dissimilar to that given by his mother. … In his record of interview, the prisoner described the music he had been listening to as either a recording known as "No Remorse" or alternatively "Seek and Destroy". He described being influenced by reading a comic-style magazine called "Heavy Metal" in which is depicted the gouging out of one individual's eyes by another. The prisoner in his record of interview mentioned on a number of occasions hearing "voices" in the sense of being from time to time influenced by them in his conduct, however, he did not describe his conduct on the night of the offences to any hallucinatory commands. He describes his relationship with his mother as "normal, pretty close" (A/A 132) and said that he had formed the intention to kill her "… about five minutes before, if that, two or three minutes". Prior to August 1997, the prisoner had received psychiatric treatment at Manly Hospital. The prescription drug "Anatensol" had been prescribed and used by the prisoner prior to the offences being committed, but he had not taken the medication in the recent past prior to the events of 16 August. Following the assaults upon the victim, the prisoner gave an account of going to the refrigerator, obtaining orange juice which he drank and then of getting the keys of the car and silently, lest his grandfather should hear him, opening the door of the car. He decided that he would more easily be found by authorities if he were in a car, so he threw the keys into the bush. He also considered use of the car for the disposal of the body of the victim, whom he thought, at that time, to be dead. After spending sometime sitting in a nearby park, the prisoner walked from Narrabeen to St Ives, caught a taxi to Chatswood and went by train to Central Railway Station. After spending two days in the vicinity of Central Railway, the prisoner caught the train intending to go to Brisbane. He left the train at Gosford and returned to Sydney and thereafter travelled to the Newcastle area where he was arrested on 10 September 1997. He described his movements as "… game of cat and mouse" played by him with police. 5 Leaving aside some relatively formal evidence given by two police officers, the only witnesses to give evidence before the jury were two consultant psychiatrists, Dr Olav Nielssen called in the defence case and Dr Yvonne Skinner called in reply for the Crown. The two doctors had examined the appellant after his arrest. They had access to documents relating to his prior psychiatric history and had read the transcript of the appellant's electronically recorded interview (ERISP) conducted on 10 September 1997. Dr Skinner had also viewed the video tape of that interview. 6 The two doctors were agreed that the appellant had suffered schizophrenia since about 1995. They accepted that the assault on the appellant's mother was a consequence of that mental illness, albeit triggered on the night in question by a lethal cocktail of alcohol, cannabis and butane fume ingestion. Based upon the ERISP, the doctors were agreed that the appellant knew the nature and quality of what he was doing when he carried out the terrible assault upon his mother. However, each expert was also of the view that the appellant did not at the time know that what he was doing was wrong. Each doctor said in terms that he/she was of the opinion that the defence of mental illness according to the M'Naghten rules was made out. 7 The jury nevertheless rejected the defence of mental illness and convicted the appellant. 8 The notice of appeal raised two grounds of appeal: 1. The verdict is unreasonable having regard to the evidence. 2. The Crown failed to disclose a change of opinion by its psychiatrist until after the defence case had closed, thereby prejudicing the accused's fair trial. 9 Issue was joined on these matters in the written submissions exchanged before the hearing. 10 Suffice it to say that the Crown submissions show that ground 2 had real difficulties in light of the way the trial was conducted. 11 Shortly prior to the hearing the Court, through the Registrar, drew the attention of counsel to s7(4) of the Criminal Appeal Act 1912. Section 7 as a whole deals with the powers of the Court of Criminal Appeal "in special cases" one of which is addressed in subs (4) as follows: If, on any appeal, it appears to the court that, although the appellant committed the act or made the omission charged against the appellant, the appellant was mentally ill, so as not to be responsible, according to law, for the appellant's action at the time when the act was done or omission made, the court may quash the conviction and sentence passed at the trial and order that the appellant be detained in strict custody in such place and in such manner as the court thinks fit until released by due process of law. 12 The leading authority in this State relating to the scope of s7(4) is R v Jenkins (1963) 64 SR(NSW) 20. The Court of Criminal Appeal comprised Herron CJ, Walsh J and Ferguson J. Each member of the Court delivered a separate judgment covering inter alia the scope of s7(4). Since however the Chief Justice and Ferguson J agreed with Walsh J as to the relevant principles, it is sufficient for present purposes to set out the key portion of the judgment of Walsh J (at 29): In its terms, the provision appears to me to confer a power to examine the evidence and to act upon this Court's view of that evidence in appropriate cases. It is not merely a provision which can be applied in cases in which the Court, if no such provision existed, would think it proper to order a new trial under the provisions of ss6 and 8. Although it is applicable in such cases, I think it can be applied also in cases in which the Court is not prepared to hold that, in accordance with the principles relating to the granting of new trials, the jury's verdict was so perverse and unreasonable as to require it to be set aside. The jury's verdict might not be unreasonable in that sense and yet the Court might consider that the evidence was so strong in favour of the view that the accused was mentally ill, so as not to be responsible according to law, that it ought to make the special order under s7(4). The condition of the exercise of the power, as expressed in the subsection, is that it appears to the Court that the accused was mentally ill. But such cases as I have just described, as falling within the power conferred, will necessarily be of rare occurrence. For if the evidence, although strong in favour of the accused's case, is yet such that a jury, acting reasonably, could fail to be satisfied that it was established, it will rarely happen than an appellate court, acting merely upon a transcript of evidence, will feel satisfied that a different view will be taken. The Court has not the benefit which the jury has of hearing the evidence as it is given and of seeing the witnesses and seeing the accused man himself. 13 See also Mizzi v The Queen (1960) 105 CLR 659, R v Fleeton (1964) 64 SR(NSW) 72, R v Weise [1969] VR 953. 14 At the hearing of the appeal, the appellant based his case upon s7(4) and it was common ground that the Court should apply the principles stated by Walsh J in Jenkins. 15 It is therefore appropriate to look at the evidence that was before the jury in the trial on the issue of mental illness. 16 The appellant saw a doctor (Dr Martin) on 1 September 1997, some two weeks after the assault. He was prescribed Anatensol and Cogentin which would have helped somewhat to restore his mental balance by the time the ERISP was conducted on 10 September 1997. For that reason, both psychiatrists qualified the conclusions that they were prepared to draw from the ERISP material standing alone. 17 As indicated, an ERISP was conducted with the appellant on 10 September 1997, ie a little over three weeks after the assault. Some of the answers in the record of interview have a bearing upon the issue of mental illness. For example, in the answer to Q107 the appellant said: OK. Well, I get a little paranoid sometimes from drugs and I, I seem to think that, you know, there's voices around me, people trying to stop me doing what I'm doing and, you know, not so far as drug taking but I dunno. I'm like, I'm very paranoid about meself, well, the wellbeing of myself, and, you know, I, sometimes I just get a little, little sort of, I dunno, something sets me off. Like, you know, the door will be open during the night and I'll wake up in bed and I'll go, Oh, shit, shit, shit. If I don't shut the door these guys are gunna, you know, just wreck me life or something, just to damage to me. So, you know, I shut the door and then I, and then I think, Oh, I shouldn't have shut the door, you know, 'cause they didn't want the door shut. It's really stupid. It's, I dunno, I got to get help for it anyway, put it that way. I am on Anatensol. That makes it better. I don't get the, I don't get the impure thoughts that I get and, but, you know, I haven't taken the Anatensol for a while. So that's what got to me and I think it's, when I was a baby I, my nan used to smoke a lot, really strong cigarettes, like the 16s and that. And I inhaled some of the smoke that, you know, was just naturally floating around the room and that's how you can hear that wheezing in me throat. I dunno, must've, it must've clogged up a air vent or something in me lungs and it's just, it mainly goes up through the throat. There's like an air pocket there or something. 18 In the course of an answer in which the appellant said that he had actually killed his mother (A110) he said: I think I got influenced by this magazine in me room. It's called Heavy Metal. If you've ever seen that, there's a guy in that pulls this guy's eyes out in gaol. That's when, that's where the scene sets. He pulls this big guy's eyes out with his hands. You know, if, I don't think I would've read that magazine I probably wouldn't have intention to kill. Later he said (A118-119): I just smacked her in the face a few times lightly. I sort of said, you know, You know what I'm doing here, don't ya, and she sort of said, Huh? She freaked out. And then I said, Look, you always treat me like a prick, don't ya? And she said, Huh? She, she couldn't understand what I was trying to say to her. Like, it was my, it was me trying to say anything to me own, own reflection in the mirror. Right. Sort of like, you know, and I dunno, I just got the willies and sort of freaked out a bit and then that's when I started choking her. At A133 he referred to hearing voices which he thought may have been drug-induced, although he tried to keep them away while "sort of doing drugs" . 19 The appellant volunteered that he supposed that he had the intention to kill his mother (A134). He talked about what would happen if the door were left open and the voices were telling him to close the door. He had periods on and off medication. He had been in a mental hospital before, receiving treatment for paranoia. 20 Asked why he attacked his mother, he answered (A170): Just, I dunno, sheer stupidity and paranoia I suppose. 21 Evidence from a psychiatric registrar of the East Wing of Manly District Hospital which was read to the jury established that the appellant had been an inpatient there on several occasions, including for a couple of weeks about one year before the assault on his mother. He had been admitted for a drug-induced delirium due to butane gas abuse. On that occasion he had cut the back of his wrist with a razor blade in response to hearing voices. He was given medication because of a history of schizophrenia and placed subject to a Community Treatment Order. It was a condition of that Order that the accused take specified medication. However, he told Dr Nielssen that he had stopped taking the medication when the order expired, with the result that he had not received antipsychotic medication for a year prior to the assault upon his mother. The psychotic symptoms had developed over six months before the assault and were particularly noticeable after he smoked marijuana or took other drugs. 22 Dr Nielssen examined the appellant after his arrest and after his admission to the Metropolitan Medical Transit Centre at Long Bay. He interviewed the appellant in custody on five occasions between October 1997 and April 1998. He took a history of the circumstances surrounding the assault that was consistent with the facts established at trial, but which included additional material as to the ingestion of cannabis, alcohol and inhaled butane in the period immediately preceding the assault. According to that history, the matters ingested "really set off the voices". The extended history was recounted in Dr Nielssen's evidence and was capable of being accepted as truth of the facts, although adduced through the medical witness (see R v Welsh (1996) 90 A Crim R 364). It was not objected to when given nor challenged in cross-examination. The history was supplemented by the doctor's examination of the appellant's prior medical records. 23 Dr Nielssen formed the opinion that the assault took place during an acute exacerbation of chronic mental illness which occurred because of non-compliance with anti-psychotic medication and drug abuse. The recurring symptoms of auditory hallucinations and persecutory delusional beliefs became acute as a result of intoxication, with its combination of cannabis, alcohol and the effects of inhaling butane. The precipitating event was the argument over how loud the appellant played his music. The actual reason for assaulting his mother was the delusional belief that his mother was responsible for his mental illness. The appellant experienced auditory hallucinations telling him to hurt his mother. 24 Dr Nielssen's opinion was that the appellant was mentally ill at the time of the assault, suffering from a disease of the mind (undifferentiated schizophrenia) stemming from at least 1995. He said that the defect of reason in the appellant's case was a delusional belief that his mother had caused him to become mentally ill, and also that the voices came from a Mafia-like gang. They were delusional beliefs. The defect of reason affected, his capacity to reason logically and calmly. His ability to reason was impaired by being acutely mentally ill. 25 Dr Nielssen said that he believed that the appellant knew what he was doing to his mother but that he was not aware that his actions were wrong, as he did not realize that his mother had done him no harm, and he was being urged on by the hallucinatory voices. As he was acutely psychotic at the time of the offence, exacerbated by his ingestion of drugs and alcohol, he was unable to reason with a degree of calmness as to whether his actions were wrong. 26 In cross-examination, the doctor said that there was no relevant difference between the psychotic symptoms of a drug-induced psychosis and chronic schizophrenia. The intoxication exacerbated the symptoms of mental illness that were already present. However, the appellant was psychotic before and at the time of the attack. 27 Dr Nielssen accepted in cross-examination that it was relevant to look at the appellant's actions after the attack on the issue of his awareness of the wrongness of the assault. 28 The doctor believed that the appellant was acutely mentally ill at the time of his admission to gaol and that there were indications of mental illness in his interview with the police. He agreed that the ERISP showed the appellant acting rather calmly. Nevertheless, he adhered to his opinion, referring to other cases where persons who had committed acts were thereby shocked into a subsequent state of awareness of wrongdoing (Tr 83). 29 One point of difference between the two psychiatrists was their opinion as to the causal weight of the intoxication (from the three sources of alcohol, cannabis and butane) as a triggering factor in the psychotic episode of the attack. Dr Skinner's evidence will be recounted below. Dr Nielssen agreed that the intoxicants had a triggering effect, but he attributed less causal potency than Dr Skinner. He gave as a reason the appellant's clear memory of the assault and his capacity to give a fairly sequential account of it (Tr p91. See also Tr p96). 30 At one stage in his evidence, Dr Nielssen referred to the appellant as having been "acting on the instructions of command hallucinations" (Tr p91). Dr Skinner was present throughout Dr Nielssen's evidence and her own evidence was therefore, in part, responsive to that of Dr Nielssen, at least in matters of detail. It is therefore significant that she too adopted the expression "command hallucinations" (see below). 31 At one stage, when pressed by the cross-examiner to agree that a person who is delusional and hearing voices may still know that what he is doing is wrong, Dr Nielssen replied (Tr p92): They can know it is against the law but it is not wrong in accordance with the understanding of the world brought about by their delusions. See also Tr p94. 32 Dr Nielssen adhered to his opinion that the appellant's reason for attacking his mother was his delusional state and a response to his imaginary voices, these being the product of his underlying mental illness as exacerbated by the intoxicants consumed not long before the attack. On several occasions Dr Nielssen explained and defended the reliability of the history he had obtained and upon which in part he based his conclusions (see eg Tr p113). 33 Dr Nielssen's evidence on the critical issue is summed up in the following (Tr p106): Q: Is it fair to say this: that the opinion that you hold that the accused did not know what he was doing was wrong when he attacked his mother is based upon the accused then suffering from acute schizophrenia aggravated by consumption of alcohol, smoking of marijuana and inhalation of butane? A. Yes, it is fair to say that. Later, he explained that the appellant's failure to take the medication prescribed for his medical condition was a further contributing factor (Tr p113). 34 Dr Skinner examined the appellant at Long Bay Gaol on 16 July 1998. She took a history and examined the appellant's medical records. She had access to some of the witness statements and the transcript of the ERISP. The history given by the appellant was recorded in a report dated 17 July 1998 from which she gave much of her evidence in chief. Dr Skinner appears to have accepted the accuracy of the information she was given and which she recorded. 35 The history included the admission to the psychiatric ward at Manly Hospital in about 1995 after the appellant had slashed his left wrist with a razor. On another occasion he was admitted after suffering severe burns after standing under a very hot shower. He told the doctor that he believed that he had been commanded by the voices to hold his head under the shower. 36 The history included references to auditory hallucinations and the experiencing of the psychotic phenomena of thought insertion, thought withdrawal and ideas of reference. However, the most distressing symptom was the command hallucinations. He said, "they took over, controlled me". He said that he felt that he must carry out the commands as directed to relieve his distress. 37 There were several incidents involving auditory hallucinations and the receipt of commands from voices. Such incidents were interspersed with periods of relative normality. When he did not take his medication he felt that he was in a disturbed mental state. 38 The history of the assault given to Dr Skinner was generally consistent with the other evidence. The appellant told her that he was still experiencing auditory hallucinations, voices commanding him to attack his mother. He said "I lashed out - to stop the voices". He told her that he was also affected by marijuana. 39 In the "Discussion" section of her report of 17 July 1998 which was used as the basis of her initial evidence in chief, Dr Skinner referred to a significant history of substance abuse with at least two hospital admissions for the treatment of drug-induced delirium. Dr Skinner acknowledged that continuous abuse or repeated episodes of abuse of alcohol or other substances can cause altered mental states, including persisting auditory hallucinations. 40 Section 7 of Dr Skinner's report was read to the jury. Dr Skinner said: 7.0 Opinion 7.1 Peter Anthony Derbin has a history of alcohol and drug abuse. It is probable that he has an underlying mental illness, schizophrenia. It is also possible that symptoms consistent with a diagnosis of schizophrenia were caused by alcohol and substance abuse. If he does suffer an underlying mental illness, the symptoms were aggravated by substance abuse. 7.2 When he assaulted his mother Mr Derbin was affected by drugs, as he admits to heavy use of marijuana prior to the alleged offences. 7.3 It is difficult to understand how Mr Derbin was able to organise himself to evade police after assaulting his mother and how he was able to organise accommodation for himself and apply for social security benefits, if he remained drug-affected and/or in a psychotic state after the alleged assault. It is also surprising that he did not contact family members to ask about his mother. It appears that he made an effort to evade police and when arrested, he initially denied knowledge of the assault. 7.4 Other information would be useful in making a retrospective assessment of Mr Derbin's mental state after the assault on his mother. The ERISP videotape should give some indication of his presentation at the time of his arrest. Prison medical records would show whether Mr Derbin was assessed by a member of the medical staff as suffering from mental illness or the effects of drug use. 7.5 In summary, I consider that Mr Derbin has a major problem of substance abuse (alcohol - binge drinking and marijuana and inhaled substance abuse) and that he was affected by marijuana at the time of the assault on his mother. I think that he suffers from underlying mental illness, schizophrenia. The incidents of serious self harm such as cutting his wrist and scalding his head and face in response to command hallucinations are consistent with mental illness and are not likely to have been caused only by drug abuse. 7.6 I believe that he has a defence of mental illness at the time of the assault on his mother, that he was responding to command hallucinations and was not fully aware of the implications of his actions. However, the effect of substance abuse (marijuana) was of primary importance in the commission of the offence. 7.7 He should continue with psychiatric treatment in the form of anti-psychotic medication. It is equally important that he should abstain from alcohol and drugs and that he receives drug counselling. I strongly recommend that any order made in future with respect to Mr Derbin should include a provision for drug and alcohol counselling and random drug/alcohol screens to ensure compliance. 7.8 Mr Derbin is fit to plead and to stand trial. 41 In her evidence in chief, Dr Skinner was then referred to additional material which she had taken into account after providing the report. She viewed the ERISP video and from watching it was able to determine that the appellant was calm and able to give a coherent account without stopping for long pauses or getting up to walk around. There were no signs of bizarre behaviour that might suggest that he had an acute psychotic illness (Tr p137). Referring to Dr Martin's statement about the treatment he gave the appellant on 1 September 1997, Dr Skinner said that she would not expect an acute psychosis to settle as quickly as observed on the video on the medication prescribed by Dr Martin (Tr p137). 42 Dr Skinner also referred to prison records which she had subsequently examined, in particular the material recorded by the nurse who admitted the appellant to the prison hospital on the day of his arrest, 11 September 1997. At that stage it was recorded that there was "no evidence of psychotic phenomena occurring at present". 43 From Dr Skinner's examination of the Corrections Health Service records it appeared that the first report by the accused that he had been hearing voices in relation to the time of the attack was when he was interviewed by Dr Nielssen on 21 October 1997 (Dr Nielssen's first consultation). 44 Dr Skinner was asked whether she took issue with any of the opinions expressed by Dr Nielssen. Her answer was (Tr p140): A. Only - I think I am not sure about the actual reason for assaulting his mother, given by Dr Nielssen being a sudden realisation that his mother was responsible for causing his mental illness. I am not aware of him giving that history to any else, except Dr Nielssen, and it differs from the account he gave in the police interview. Dr Nielssen said that Mr Derbin was acutely mentally ill at the time of his admission to gaol and there were indications that … he was mentally ill in his interview with the police. I don't believe that there is any evidence for that statement, so I disagree because I don't find any evidence for that. 45 Pressed to indicate whether there were any other matters, she said (ibid): I suppose the difference is in the understanding of what might have brought on this terrible attack, which Dr Nielssen seems to believe was due to an acute relapse of chronic schizophrenia. Again, I am not - I don't know of any evidence to really show that he was suffering from an acute episode of schizophrenia at that time and I believe, as I have set out in my report, there is much more evidence that the substance abuse was the significant problem. 46 In the course of developing this evidence, she expressed the view that the substance abuse was more important than the underlying mental condition which would have seemed, from the account she got of the appellant's behaviour around that time, prior to and after the assault, to have been relatively stable (Tr 140). She thought that the more likely explanation for the terrible assault was that the appellant was affected by the substances he had taken that afternoon (Tr p141). The combination of those substances could lead to a psychotic episode causing auditory hallucinations. Immediately after making this point, the following evidence was given (Tr 142): Q. So I understand clearly what you are saying, you accept, do you, on all the material available, that the accused does and has suffered from schizophrenia? A. Yes. Q. May I, at this stage, take you back to your paragraph 7.6 [see par 40 above. The paragraph was read by the questioner.] Doctor, in your opinion how significant in the commission of these offences was the consumption of alcohol, the smoking of marijuana and the inhalation of butane? A. Well, I think it was of primary importance that it caused an acute psychosis, or certainly some kind of altered mental state, which accounts for this terrible assault. 47 In responding to ensuing questions, some of which elided legal and factual issues, Dr Skinner said in effect that, without the substances having been taken by the appellant, then the offence would probably not have occurred. For example, there was the following (Tr 143): Q. Do you support the defence of mental illness if you have to put aside the effect of those substances on his mental processes at the time he committed the offences? A. No. It should be said at once that this was a highly irregular question both in its form and its substance. The proposition put implicitly to the doctor does not represent the law as I shall indicate below. 48 Dr Skinner then said that she believed that the Metallica song to which the appellant had been listening at the time ("Seek and Destroy") and the cartoon he had looked at which showed someone ripping out another person's eye lent: more weight to the idea that the psychosis, or what ever mental state, might have been drug induced rather than caused by schizophrenia, … so, it seems to me that it is possible this has something to do with the mental state he was in at the time, affected by substances. 49 It may be observed that none of this evidence denied that the appellant was in a "mental state" such as psychosis at the time of the assault. Rather, the doctor was emphasising that the state was drug-induced. 50 This evidence was given towards the end of a day. At the beginning of the next day counsel for the accused sought the discharge of the jury. The submission and the responses to it occurred in the absence of the jury. His complaint was that the defence had been given only the written report of Dr Skinner. Counsel submitted that the witness had been led in the course of her examination in chief to a position where she reversed her opinion as to the availability of the defence of mental illness. The thrust of the complaint was the absence of prior disclosure of the doctor's change of opinion. It was further submitted that the Crown ought to have put the substantial points of difference to Dr Nielssen in cross-examination. Counsel for the accused expressed the fear that Dr Skinner's evidence, although it contained material to the accused's advantage, supported "the Crown contention that this was a butane-induced assault, and nothing to do with a disease of the mind" (Tr p158). 51 Ireland J responded immediately by pointing out that the defence of mental illness would only be defeated if the Crown virtually eliminated schizophrenia and sheeted home the cause of the assault solely to the ingestion of the three elements. His Honour suggested that Dr Skinner had not yet had the opportunity to express her view on that matter (Tr pp158-9). Only if she did express such a view, would the complaint based on surprise have any substance. The Crown Prosecutor agreed that his Honour had identified the real issue in the case precisely and that there had been no change in the Crown position. He said (Tr pp159-60): All that I have sought to do with each of the psychiatrists is to clarify the aspect of whether or not they are able to support the defence of mental illness if the law be, although I did not put it to them in this way as a matter of law, that the jury has to put aside the temporary effects of the three substances and has to look only at the schizophrenic state of mind. That is the matter upon which I seek clarification. 52 Counsel for the accused effectively withdrew the application for discharge of the jury. Dr Skinner and the jury returned to the Court. 53 The doctor was asked some questions about Dr Nielssen's evidence to the effect that the appellant's behaviour in the immediate aftermath of the assault was consistent with him having been acutely psychotic at the time of the assault. Dr Skinner distinguished between chronic schizophrenia and an acute psychotic state and she said that a person in the latter condition would be observed by most people to be functioning in an abnormal way. 54 After some further questioning in relation to matters raised by the jury, the Crown Prosecutor asked Dr Skinner to state her opinion in relation to certain conclusory matters (Tr pp165-6). Dr Skinner gave the opinion that at the time of the attack the accused was in an acute psychotic condition, the primary reason for which was the ingestion of drugs, particularly the butane gas. She said that in her opinion the appellant's schizophrenia probably played a part in that psychotic condition. In other words that the psychotic condition was brought about by the combination of his schizophrenic state of mind and the effects of the substance abuse. 55 Dr Skinner was then asked to address the criteria that apply to the defence of mental illness. Examination in chief concluded as follows (Tr p166): Q. I would like you to now address the criteria that applies to the defence of mental illness. At the time of the attack on his mother, was the accused labouring under a defect of reason? A. Yes, I believe so. Q. Caused by disease of the mind? A. Well, I believe that at the time of the assault on his mother the principal cause of his abnormal mental state was the drug ingestion; the effect of drugs. Q. But, in part, a disease of the mind? A. In part a disease of the mind, schizophrenia. Q. As not to know the nature and the quality of his act; in your opinion at the time of the attack, did the accused know the nature and quality of his act? A. I think he was in quite abnormal state of mind, but was aware of what he was doing. Q. Or, that he did not know what he was doing was wrong, in the sense that ordinary people know right from wrong? A. No, I don't think he was able to reason that what he was doing was wrong. Q. Because, of the defect of reasoning caused, in part, by the disease of the mind? A. Yes. Q. Schizophrenia? A. Yes. 56 In the cross-examination which followed Dr Skinner never resiled from this position, nor was she asked to do so. The cross-examination was essentially about matters of detail. 57 It may be observed that Dr Skinner repeated the history of "command hallucinations" (Tr pp167-8). She justified her conclusion about schizophrenia by reference to a number of matters, including the history given to her by the appellant, the Manly Hospital medical records and other matters. She said that the diagnosis of schizophrenia as an underlying mental illness was well founded, adding (Tr p169): I tried to explain yesterday that substance abuse complicates the problem, because many of the symptoms and signs caused by substance abuse are also symptoms of schizophrenia. 58 Dr Skinner continued to debate with the cross-examiner the primacy of the substance abuse, in effect on the basis of assigning a priority in causal impact between the underlying mental illness and the substance abuse that triggered either the hospital admissions or the assault on the appellant's mother (see eg Tr p170). But nowhere did she assert that substance abuse alone was the cause of the assault. She referred to the appellant's "drug induced psychosis at the time of the attack" and described the drug as a "trigger" (Tr p174). 59 The cross-examination effectively concluded as follows (Tr p175): Q. And in the light of all of those beliefs on your part, have you come to the opinion that he does have a defence of mental illness at the time of the assault on his mother? A. Yes, I came to that view, however, considering that substances (sic) abuse was the primary cause. 60 Before addresses began, the Crown Prosecutor referred his Honour to the decision of Sholl J in R v Meddings [1966] VR 306. The case was cited as authority for the proposition that a jury considering the issue of insanity or mental illness could have regard to the triggering effect of alcohol. The Crown Prosecutor accepted that the gist of Dr Skinner's evidence was that substance abuse was superimposed on top of the underlying schizophrenia, which induced the auditory hallucinations and that this led the accused to perpetrate the assault (Tr p180-1). His Honour remarked that, that being so, the chain of mental illness would appear to be established, leaving as always the factual question for the jury as to whether or not they believed that the accused knew that what he was doing was wrong. 61 In his summing up, Ireland J told the jury that the essential issue was the defence of mental illness and in particular the question whether the jury were satisfied by the accused that, at the time he assaulted his mother, he was disabled by disease and the mind from knowing what he was doing was wrong. The standard of proof was the balance of probabilities. 62 The jury were told that they were not bound to accept the evidence of the experts. This charge was repeated later in the summing up together with the admonition that the jury would not reject the evidence of the expert witnesses, particularly where they were in agreement, capriciously but for a reason (SU 31). 63 As required by s37 of the Mental Health (Criminal Procedure) Act 1990, His Honour explained the legal and practical consequences of the special verdict of not guilty by reason of mental illness. 64 The evidence of the two psychiatrists was recounted at some length. The jury were reminded that Dr Nielssen had expressed the opinion that, in establishing the defence of mental illness, it was permissible to take into account the temporary effects of either alcohol, marijuana or butane in the underlying condition of schizophrenia. His Honour continued: Now, members of the jury, that question is not really one for the doctor, it is a question for me to decide. As you have heard the Crown say, I have ruled that it is permissible to take into account the temporary effects of alcohol, marijuana and butane on the underlying condition of schizophrenia in considering the question of whether the accused, at the time of the assaults upon his mother, was suffering from a disease of the mind which adversely impacted upon his capacity of reasoning with a moderate degree of calmness as to whether his actions were wrong, but that is not to decide that question of whether he knew what he was doing was wrong, because that is a question for you and for your alone. What I have ruled is merely that in considering that question, it is permissible to take into account the temporary effects of alcohol, marijuana and butane upon the mental disease of schizophrenia. Your function, I repeat, is to decide whether, at the time he assaulted his mother, the accused knew that what he was doing was wrong. Doctor Nielssen agreed, and I direct you as a matter of law, that if you were to find that the accused acted under the influence of alcohol, marijuana or butane, alone or in combination, uninfluenced by the underlying condition of schizophrenia, then the defence of mental illness is not available to him for the reason that it is common ground that the effect of those substances is a temporary effect which does not meet the test set out in the written directions I have given you. 65 In the course of referring to the evidence of Dr Skinner, the jury were reminded of Dr Skinner's view that if one were to set aside the effect of three substances, alcohol, cannabis and butane, the presence of the mental illness, schizophrenia, alone would not support a defence of mental illness. His Honour continued: however, you will remember that I directed you that it is open to you to take into account the effect of those substances upon the underlying condition of schizophrenia. 66 The principal arguments of counsel were reiterated. 67 I pass over the arguments for the accused as recounted by his Honour. 68 As recorded, the Crown had emphasised that the critical issue was not a matter for the experts, but for the jury. The horrendous acts involved in the assault was said to be of such a nature that the accused must have known that he was doing wrong. The fact that he placed his hand over his mother's mouth to stop her scream and attracting the grandfather's attention was said to be an indication of sufficient realisation. Reliance was also placed upon the accused's actions shortly after the assault: he went to the fridge and had an orange juice, he changed his mind about escaping by car and he played cat and mouse with the police in the days following the assault. The Crown relied upon the absence of agitated behaviour which would indicate an acute psychotic state as well as the good memory and precise recall of detail demonstrated in the ERISP. 69 The jury took considerable time to reach a verdict. There was a Black direction. Eventually, verdicts of guilty were returned on each count. 70 In R v Stones (1955) 56 SR(NSW) 25, the Court (Street CJ, Roper CJ in Eq and Herron J) said (at 29) that: … insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause. 71 Their Honours cited R v Davis (1881) 14 Cox CC 563 and Director of Public Prosecutions v Beard [1920] AC 479 at 500-1. 72 It does not matter to the criminal law whether the disease of the mind which produced a state of mind attracting the defence of mental illness is curable or incurable, temporary or permanent (The King v Porter (1933) 55 CLR 812 at 187-8, R v Kemp [1957] 1 QB 399 at 407, R v Quick [1973] QB 910 at 918). 73 These principles are in no way inconsistent with authoritative statements such as that "disease in the M'Naghten formula is not used … with reference to a temporary inefficient working of the mind due only to such outside agencies as alcohol or drugs" (R v Carter [1959] VR 105 at 110 per Sholl J, emphasis added). In R v Meddings [1966] VR 306, Sholl J recognised that "mere transient causes such as alcohol alone … do not produce insanity within the meaning of the M'Naghton Rules" (emphasis added). But he held that, if a person has a disease of the mind predisposing to a particular condition, then for the purpose of the defence it did not matter whether the "trigger" was alcohol or a set of surrounding circumstances. 74 Applying the principles stated by Walsh J in Jenkins, I am satisfied that the evidence establishes that the appellant "was mentally ill, so as not to be responsible, according to law, for [his] action at the time when the act was done" (cf s7(4)). 75 This was the unchallenged joint opinion of the two psychiatrists. It was supported by the histories which they each obtained from the appellant and recounted in their evidence. While Dr Skinner remarked that "voices" were not mentioned in the ERISP, she (like Dr Nielssen) appeared to accept the truthfulness of the history of "command hallucinations". The facts upon which the medical opinions were based were not disputed, in their essentials. The horrific nature of the assault also pointed in the same direction (cf R v Matheson [1958] 1 WLR 474). It is true that some of the appellant's conduct during or following the assault showed deliberation, but "an abnormal mind is as capable of forming an intention and desire to kill as one that is normal" (id at 478). The critical issue was the extent to which the appellant's illness affected his capacity "to reason about the matter with a moderate degree of sense and composure" (Porter at 189-90). I am persuaded that such capacity was clouded to such a degree that the appellant would not know that what he was doing was wrong. 76 I recognise the need for caution in disregarding the verdict of the jury. Nevertheless, there are aspects of the trial which (taken with the matters recounted in the preceding paragraph) leave me comfortable in doing so: (a) By their questions through the trial, some of which were put to the doctors, the jury appear to have shown an inordinate interest in the curability of the appellant's schizophrenic condition (contrast Porter (1933) 35 CLR 182 at 187). (b) The extended debate between the doctors as to whether the ERISP transcript and video evidenced mental illness at the time of the arrest had the potential to mislead the jury away from the task of assessing mental illness at the time of the offence. The jury were reminded about this evidence in the summing up without a caution as to the limited relevance of that issue. (c) The debate between the doctors as to the relative causal impact of the substances which triggered the psychotic attack was also potentially misleading in light of the relevant legal principles. True, the Crown emphatically agreed that Dr Skinner's evidence on this matter did not challenge her conclusions about mental illness, but this occurred in the absence of the jury. The jury may have been left with the idea that Dr Skinner had reservations about whether there was or even should have been an available defence of mental illness. (d) Some of the questions put to the psychiatrists, especially Dr Skinner, appeared to infer that there was an element of discretion involved in accepting or rejecting the defence of mental illness (see par 47 above). The jury may have got the same impression from the directions in the summing up that it was "permissible" to take into account the temporary effects of alcohol, marijuana and butane. They were (correctly) told that if the ingested substances alone caused the accused to act as he did, then the defence of mental illness was not available. But neither expert suggested this possibility. In light of the unfortunate digressions in Dr Skinner's evidence, there should in my view have been a forceful direction along the lines of the principle stated in the passage from Stones set out at par 70 above. 77 For these reasons, I propose the following orders: 1. Quash the convictions and sentences passed at trial. 2. Order that the appellant be detained in strict custody in the manner required under s39 of the Mental Health (Criminal Procedure) Act 1990 in a secure prison psychiatric facility until released by due process of law. 78 LEVINE J: I have read the learned President's judgment in draft. I agree with the orders he proposes and his reasons therefor. 79 GREG JAMES J: I agree with the President. ************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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