R v WILKINSON [2000] NSWSC 1156

New South Wales Supreme Court

CITATION : R v WILKINSON [2000] NSWSC 1156 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70070/00 HEARING DATE(S) : 08/12/2000 JUDGMENT DATE : 8 December 2000

PARTIES : REGINA v Michael James WILKINSON JUDGMENT OF : Barr J at 1

COUNSEL : Crown: PS Dare SOLICITORS : Crown: SE O'Connor Accused: DJ Humphreys DECISION : Not guilty by reason of mental illness. Order that the accused be detained in a hospital until released by due process of law.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 8 December 2000

70070/00 - REGINA v Michael James WILKINSON

JUDGMENT 1 HIS HONOUR: Michael James Wilkinson has pleaded not guilty to the charge that on 7 June 2000 at Newtown he murdered Helen Jane Wilkinson. He has elected for trial by judge alone but the Crown has consented to that form of trial. I am satisfied on the evidence, particularly that contained in the report of Dr Rosalie Wilcox of 4 December 2000, that the accused has the capacity so to elect. This trial will therefore be heard by myself alone. 2 The Crown must prove beyond reasonable doubt that the accused did the act which constitutes the offence with which he is charged but the accused admits all the facts relied on so there is no doubt about those matters. The accused, however, contends that he is not guilty of any offence because at the time of the events giving rise to the charge he was mentally ill and therefore not legally responsible for his actions. He must prove that it is more likely than not that that was so. 3 The statement of the test for the defence of mental illness was propounded as long ago as 1843 in R v McNaghten. The question to be answered was whether the accused at the time the offence was committed was suffering from a defect of reason, from a disease of the mind, so as not to know the quality and nature of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong. The law has been amplified in Australia in the present century and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through 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. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act the actor is prevented from knowing that what he did was wrong. 4 The accused was born on 29 June 1976. At the time of these events he was living with his mother, the deceased, in Newtown. In 1977 he was diagnosed to be suffering from schizophrenia and was prescribed medication to relieve the symptoms of the illness. For some years up until the night in question he had been a relatively minor smoker of cannabis. 5 About five years ago he met an English girl named Louise and they spent some time together travelling in Australia. She and he went to England and then he returned by himself to Australia. They maintained contact and she returned to Australia in 1999 for a visit. 6 She terminated her relationship with him, however, and that must have troubled the accused. There was an occasion in 1999 when he was approached by police after he had been found knocking on doors in the suburb of Maroubra in an attempt to find Louise. He was taken to the psychiatric clinic at Royal Prince Alfred Hospital and there treated for paranoid schizophrenia. 7 On 6 August 1999, by an order made in the Local Court, he was made the subject of a community treatment order for a period of six months. He was referred to the Marrickville Mental Health Team and in September 1999 to the Redfern Mental Health Team and there his treatment was monitored by Dr Amanda Bray and a nurse, Mr Terence Clarke, who was responsible for the day-to-day treatment of the accused. Until 19 June 2000 that involved the injection of medication. Then the dosage was reduced and the accused was put onto an orally administered drug. Those changes were made because his symptoms were seen to be improving. Mr Clarke took the view that the accused was free of positive symptoms though it is possible, and Mr Clarke believes, that the accused was in fact not taking his medication and was deceiving him. 8 Mr Clarke saw the accused at home on 6 June 2000 and was told that, although thinking about Louise made the accused depressed, he was otherwise free of the symptoms of schizophrenia. The accused also said that he was taking his medication every day. 9 On the following day Mrs Wilkinson telephoned Mr Clarke and told him the accused was acting in a bizarre manner, similar to that that he had been displaying when admitted to the Royal Prince Alfred Hospital in the previous year. She said that he had disappeared for three days and that when found he told her that he had been on a hunger strike. He referred to the spirit in the dead body of Louise. He told his mother that she would kill Louise. Mrs Wilkinson told Mr Clarke that she did not fear for her safety and it was arranged for Mr Clarke and Dr Bray to visit the accused the next day. 10 Shortly before 11.35pm on the same day, however, the accused took a carving knife from the kitchen, went to his mother's bedroom and stabbed her a number of times in the neck and chest, killing her. Having done this, the accused telephoned the emergency telephone number and gave his name and address to the operator. He said that he had just killed his mother. He said that he had stabbed her because he had found out that she had lied to him all his life about his destiny as God. He said that she was dying. He also said: "We're in Maroubra" and that his mother would not let him or Louise leave a place which he called the Nexus which she controlled. He said that Louise had been starving for six days waiting to be released and his mother had prevented it. He believed he had a psychic connection with Louise and could hear her and feel her within him. It appeared that he believed that Louise had told him that the only thing that would save her life was if he killed his mother. He said that he had killed his mother in her bedroom and discussed with the operator the meaning of the Nexus. The operator kept him talking while he alerted other police officers and the police arrived while the conversation was continuing. 11 The accused was arrested and taken to Newtown police station. He was interviewed in the presence of Nurse Buckley of the Redfern Mental Health Crisis Team. During the interview he repeated his admission that he had stabbed his mother because she would not release him and his girlfriend from the Nexus and that it was Louise who had told him that killing his mother was the only way to free her from the Nexus. 12 A number of psychiatric reports have been placed before the Court. Dr Bray has furnished a report dated 8 June 2000. Dr Rosalie Wilcox has furnished two reports, one of which I have already referred to and one dated 3 July 2000. There is a report of Dr Wong dated 13 November 2000. 13 It is convenient to refer first to the report of Dr Bray since she has had the most to do with the accused at relevant times. Having made reference to the history of psychiatric illness and admissions which I have already summarised, Dr Bray dealt with the examination of the accused on 8 June 2000 immediately after his arrest. Having referred to the accused's dirty and unkempt appearance, she said that he described himself as upset. He appeared perplexed and distracted at times with some blunting of affect. His speech was normal in rate and rhythm. There was some thought disorder with disorganised sentences but that was only when he described his delusional beliefs. He described a complex system of delusions and auditory and somatic hallucinations. He believed that he and his ex-girlfriend Louise together made up "God". He believed that their joint purpose was to save everyone in the world from an entity called the "Nexus", which was a representation of the current world state. It appears that the Nexus was an evil entity, a living hell. The accused believed that his mission was to persuade people to leave the Nexus in a spiritual sense and had often tried to persuade his friends to do so. He felt that both he and Louise were living in torment and would until they had carried out this mission. He could feel physical pains as demons tormented Louise with spears, as the pain was then transmitted to him. He believed that Louise was currently living in the bush in the Eastern suburbs with no food or water and little to wear. He believed that her life was in acute danger. He said that he had spent several days there himself fasting and sleeping outdoors to commune with her, though he did not see her. 14 He described delusions of reference, stating that an Aboriginal child on television had transmitted a message to him from the screen. At times he also felt that his actions were being directly assisted by Louise, who would enter his body and make his movements stronger and more fluent. He was sleeping well and had vivid dreams of travelling all over the world sharing the experience of others, which tired him. 15 He described hearing the voice of Louise most of the time together with a constant feeling of being connected to her. He also heard many other voices, some perceived as "real" voices heard aurally, and some heard as laughter inside his head. 16 He told Dr Bray about the circumstances of the stabbing and said that he believed his mother had lied to him all his life about his destiny as God in order to avoid leaving the Nexus herself. He said that as she was so close to him this prevented many others in the world from leaving the Nexus, preventing his mission from being accomplished. He said that he had never thought that he should kill or otherwise physically harm her until the night of 7 June 2000. On that night, he said, he had taken off his clothes to feel closer to Louise in her exposed condition. He smoked three cones of marijuana at 6 or 7pm and felt that that let his connection with Louise become stronger. He stated that Louise told him that his mother would never leave the Nexus and that he would have to kill her. He said that he took a knife with him to his mother's bedroom where she had gone to bed some time before. Outside her room he heard his mother's voice urging him to proceed saying: "It's all right, it won't hurt." He described entering the room and then his mother "jumped up". He said that Louise repeatedly urged him on to kill his mother, despite his reluctance, and entered his body, helping his movements as he stabbed his mother. 17 Dr Wilcox reports that the manner of the accused throughout the interview was consistent with the beliefs and ideas stated. He had earnest and concerned regard for the safety of Louise and for the accomplishment of his mission. He stated that he had held his beliefs and had been in contact with Louise spiritually since the time of his admission to hospital in 1999. He said that he had lied to his case manager and to Dr Bray in order to prevent being admitted to hospital and to avoid being given more medication involuntarily. He said that that was because the medication disturbed his level of contact with Louise. He said that he had not taken any medication since the expiry of the community treatment order. 18 Dr Bray is of the view that the accused had no insight into the fact that he was ill and that he did not believe that he needed treatment. She has formed the opinion that he held his delusional beliefs with complete conviction. She has diagnosed the accused as being mentally ill. She thinks that a paranoid type of schizophrenia is by far the most likely diagnosis, though it is also possible that there is bipolar illness and that the accused was in a manic psychotic episode. In a reference I think to the smoking of marijuana, Dr Bray observed that drug-induced psychosis is unlikely, given the intensity and persistence of the accused's psychotic symptoms over time in the presence of variable levels of drug use. Dr Bray is of the view that the accused was urged to kill his mother by auditory hallucinations and probably controlled in his movements by the delusional presence of his former girlfriend. She is of the opinion that the accused did not know the nature and quality of his act. She thinks that he did not know that his act was wrong. 19 Dr Wilcox examined the accused for a period of two hours on 12 June 2000 at the request of the solicitor for the accused. She reviewed the facts which I have summarised, particularly the accused's psychiatric history. He demonstrated no grief or remorse in relation to the death of his mother as he believed that her death was necessary. Although he stated that he was prepared to die, he did not appear depressed and there was no evidence of psychomotor retardation or agitation. 20 His thoughts were noticeably disordered when he talked about his delusions and he described complex persecutory and grandiose systematised delusions. He described a range of other delusions including delusions of reference, as he said that he constantly received messages from music and referred to a line from a Midnight Oil song "Waiting for the change to come". He said that music was like a chandelier as it could direct him through things. He also acknowledged getting messages through the television and said that he did not like watching TV as it tended to make bad jokes about his situation. He described delusions of passivity, believing that his thoughts and actions were under the control of his former girlfriend Louise. 21 He acknowledged the presence of auditory hallucinations, which he said at one stage were like the sounds of a football stadium but were now mainly Louise's voice. He had had somatic hallucinations as he said that he would feel stabbing pains in the chest when he deviated from the path of loving Louise. He said that occasionally he could also smell Louise's presence. It was not possible to get him to test his beliefs against reality and he became more agitated when there was any confrontation about his system of belief. He said that he knew that he was ill but would not accept that he had a mental illness. He said that his illness was due to the way the world was, "not from any chemical imbalance in my brain". 22 Dr Wilcox has come to the view that the accused is suffering from an acute psychotic illness that is characterised by prominent delusions and auditory hallucinations. In addition there has been an associated decline in function. Although he has abused marijuana regularly, Dr Wilcox does not believe that he was suffering from a drug-induced psychosis; she thinks that the most likely diagnosis is paranoid schizophrenia. 23 She considers that the accused is a mentally ill person within the meaning of s 9 Mental Health Act and believes that he fulfils the requirements of the insanity defence. She expresses the opinion that when he stabbed his mother he was suffering from a disease of the mind, paranoid schizophrenia, and due to the presence of delusions and hallucinations had lost the ability to test for reality. Although he knew what he was doing, he was unable to think rationally or reason the matter with a degree of sense and composure and as a result did not comprehend the wrongfulness of what he was doing. 24 At the request of the Solicitor for Public Prosecutions Dr Wong prepared a report on 13 November 2000. He interviewed the accused at the Long Bay Prison Hospital on 26 October. He was furnished with copies of the reports of Dr Wilcox and Dr Bray. I need not go into the detail of what the accused said to Dr Wong because it does not materially differ from the accounts that I have extracted from the reports of Dr Wilcox and Dr Bray. Dr Wong is of the opinion that at the time of the killing the accused was aware of the nature and quality of his act. However, he thinks that the delusions and hallucinations under which he was labouring precluded him from reasoning about the rightness and wrongness of his act with a moderate degree of sense and composure. He makes particular reference to a question and answer in the recorded interview with police, which read in context, is as follows: Q 197 Did you realise what you'd done? A Yeah. Q 198 What was going through your mind at that time? A Sort of relief in a way, 'cause I thought I'd done the right thing. 25 Dr Wong is of the opinion that the defence of mental illness is available to the accused. 26 The Crown has very helpfully summarised the material in written submissions put before the Court and nothing put therein is challenged by Miss Evers, who appears for the accused. Counsel for the Crown and Miss Evers put forward the same contention, namely that the accused has discharged the burden of proof which lies upon him to establish the defence that he is not guilty by reason of mental illness. 27 In my opinion, upon the material which I have summarised, the accused has proved that at the time of the events giving rise to the charge he was mentally ill and has the defence of not guilty on the grounds of mental illness available to him. He must, therefore, be found not guilty of the charge. 28 It is necessary to say a number of other things, however. The events giving rise to the charge have been very distressing for the families of the accused and the deceased. The sympathy of the Court goes out to those family members and others who have been touched by these events. 29 The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court sees fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. A strict statutory regime will then come into effect. 30 The Mental Health Review Tribunal is a body of professional experts. Within fourteen days after the verdict the Tribunal will commence a review of the case of the accused. When it has done that review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. 31 Assuming that no recommendation for release is made after the first hearing, the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused. 32 After hearing the evidence at any later review, the Tribunal must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. 33 If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were 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. In other words, if a person is released conditionally back into the community, the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again. 34 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said, in strict custody within one of the psychiatric institutions catering for forensic patients. 35 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time has expired, then his release becomes unconditional and he ceases to be a forensic patient. However, as I have explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered. 36 I find that the accused is not guilty of the charge by reason of mental illness. I order that he be detained in a hospital until released by due process of law. **********