R v McGARRITY [2000] NSWSC 1080

New South Wales Supreme Court

CITATION : R v McGARRITY [2000] NSWSC 1080 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70050/00 HEARING DATE(S) : 17/11/2000 JUDGMENT DATE : 23 November 2000

PARTIES : REGINA v William Charles McGARRITY JUDGMENT OF : Barr J at 1

COUNSEL : Crown: PS Dare Accused: P Zahra SC SOLICITORS : Crown: SE O'Connor Accused: DJ Humphreys CATCHWORDS : Criminal law - accused found not guilty on the ground of mental illness DECISION : See para 31

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Thursday, 23 November 2000

70050/00 - REGINA v William Charles McGARRITY

JUDGMENT 1 HIS HONOUR: William Charles McGarrity has pleaded not guilty to three charges, namely that between 27 and 30 January 2000 at San Remo he murdered Jessica Ellen Gallagher, that on or about 30 January 2000 at San Remo he had sexual intercourse with Carmelina Angilletta without her consent and knowing that she was not consenting and that at the same time and place he maliciously inflicted grievous bodily harm upon Ms Angilletta. He has elected for trial by judge alone and the Crown has consented to that form of trial. I am satisfied on the evidence contained in the report of Dr Jeremy O'Dea written on 16 November 2000 that the accused has the capacity so to elect. 2 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offences but he admits all the facts relied on, so there is no doubt about those matters. The accused contends that he is not guilty of any offence because at the time of the events giving rise to the charges 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 a 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 does is wrong. 4 The accused was born on 18 July 1961. He grew up in a family of several children. His father was alcoholic and probably suffered from some kind of mental illness. He was a violent man, particularly towards the accused. He beat him often until the accused was big enough to hit back. The accused appears as a result to have had a difficult and unhappy childhood. He attempted suicide at a young age. He grew up with a short temper and a rebellious nature. During a short period of service in the army he suffered a spinal injury. During his early twenties he suffered a further spinal injury in one of two serious motor vehicle collisions. He was not academically inclined but had been strong and fit and interested in sport. His injuries and the resulting disabilities made it difficult for him to follow his desired pursuits and caused him pain when he did so. He began to become despondent. In about 1990 a twelve-month relationship with a woman broke up and he entered upon a long cycle of mood changes between happiness and depression to the point of being suicidal. His father died in 1994 and he took the death hard. He became interested in spiritualism and spoke to others who had such interests. He began to believe psychics who told him that he was a great healer. Some time after 1996 he told his brother that he then understood why their father had bashed them. It was because he had loved them and wanted to make them strong. For the same reason he, the accused, had suffered his accidents. He continued - That's why I was crucified. That's why I've come back to help people, to cure people. 5 He told his brother that he was Jesus, God. He showed him designs for futuristic machines, healing pyramids, houses in the sky and the like. His brother arranged for him to be admitted to Mandala Psychiatric Clinic at Gosford and he was kept there for three weeks and treated with medicine. After his discharge he continued to believe strongly in his ability to heal. He formed two further relationships with women, one of whom shared his psychic beliefs. He was medicated on and off. He was hearing voices. He had changed from a neat and orderly person to an unkempt person. Following a spiritual quest overseas he returned to Australia with long hair, a beard and flowing clothes. 6 In October 1999 the accused was admitted involuntarily to Mandala following a fight over money. Although the magistrate committed him to that institution for three weeks, he left after ten days. The diagnosis at that time appears to have been bipolar affective disorder and/or schizo-affective disorder. 7 Dr Chaussivert, a psychiatrist at the Mandala Clinic, reports that the accused had a history of aggression towards mental health staff at the clinic. 8 In November 1999 Carmelina Angilletta was a widow living with her four year old daughter Jessica Ellen Gallagher at a house in San Remo. Ms Angilletta's husband had died in 1997. The accused was at the premises doing labouring work for a contractor who was carrying out renovations. He and Ms Angilletta became friends. He told her that he was a healer and seemed to offer the kind of reassurance and companionship Ms Angilletta needed. They became friends and in December 1999 he moved into the house to live with them. Ms Angilletta fell in love with him and came under his influence. On one occasion he sang her a song about being nailed to the cross. Ms Angilletta asked him whether he were Jesus and he said that he was. He continued to refer to himself as Jesus in such a way that Ms Angilletta came to believe it. By various manipulative methods he drove a wedge between Ms Angilletta and her family, including by telling her untrue things about them and by accusing them of serious misconduct. He also claimed to be Nostradamus and to be called Dragar. He said that he was a holy child. 9 He came between Ms Angilletta and Jessica and assumed the role of teaching and disciplining the child. He said that she was an alien from Uranus and had come to kill Ms Angilletta. On another occasion he said that she had come to kill him. He said that she was possessed by the spirit of her dead father. 10 Members of Ms Angilletta's family became concerned about the deterioration in the relations between them and Ms Angilletta and about the part the accused appeared to be playing in these changes. Ms Angilletta's sister and the accused's brother jointly approached the Mandala Clinic with a view to having the accused admitted for treatment and on 27 January 2000 an acute care team from the clinic went to the house, accompanied by two police officers. The accused, who was adept at dealing with such circumstances, smoothed the matter over, and the team formed the view that admission to the clinic was not warranted. On the same evening the accused insisted that Ms Angilletta and Jessica join him in a series of bizarre rituals including drinking urine and wearing white robes. He told Ms Angilletta that he was going to the dog pound to "get dad". He returned with a large black dog and told her that it was his father, God, which, of course, is dog spelt backwards. After that his behaviour became even more eccentric. He accused the child of stealing one of his rings and said that it was inside her. He examined her faeces to try and find it. When he could not he said that God had turned the ring into faeces. 11 During all this time the accused prevailed upon Ms Angilletta to withdraw substantial amounts of money and make it over to him. As instructed, she used it to purchase unusual things and objects for use in shrines that he set up. The description of his other bizarre behaviour is long and detailed and it is inappropriate here to recount the particulars of it. He continually made bizarre and inconsistent statements of fact and behaved increasingly cruelly towards Ms Angilletta and the child, apparently in obedience to voices he was hearing. 12 The third count concerns an incident in which the accused armed himself with a sword, handed another sword to Ms Angilletta and required her to engage him in combat. She was incapable of doing so. He struck at her with his sword, cutting various parts of her body. He hit her repeatedly about the head and body and used the handle to strike her in the mouth, smashing some of her teeth. 13 The killing of the child happened in this way. The accused began hitting her about the neck and body with his sword. He directed Ms Angilletta to run hot water into the bathtub and she did so. The accused made the child get into the bath and resisted her attempts to get out until she stopped struggling. He pulled her out of the bath and left her on the mat. The child was making no sound and was probably dead by that time. He put her body into the refrigerator. He later told Ms Angilletta that the child would be restored to life when God (the dog) licked her. 14 The child died because of the infliction of multiple injuries, including blunt force injuries to the face and trunk. There was subarachnoid haemorrhaging. There was extensive scalding injury to almost the entire body, but the clinical signs suggested that by the time those injuries were inflicted the child was either dead or incapable of reacting to pain. 15 The accused then directed his attention to Ms Angilletta who, at the accused's command, had taken a bath and was naked. He put her in a wooden chest, placed a rope around her neck and pulled it tight, hacked off her hair, banged her head into a garage roller door and placed items of frozen food on her naked body. He heated a spoon with a cigarette lighter and applied it to various parts of her body, as well as inserting it into her vagina. That last act was the basis of the second count. 16 The neighbours called the police. They arrived and had to subdue the accused with capsicum spray before taking him into custody. 17 Following his arrest the accused was formally interviewed by investigating police officers and I have watched and listened to a video tape of the interview. The accused spoke and behaved in such a bizarre manner that nothing useful was able to be achieved. He was remanded in custody and taken to the psychiatric ward of Long Bay Prison Hospital, where he has remained to the present time. He has been seen by a number of medical practitioners including Dr Westmore, Dr Lucas and Dr Nielssen, psychiatrists. Dr Westmore and Dr Lucas were qualified on behalf of the defence and Dr Nielssen on behalf of the Crown. 18 Dr Westmore interviewed the accused and studied an extensive range of documents relevant to the matter, including a statement of Ms Angilletta and a transcript of the recorded interview between the accused and the police. Dr Westmore also viewed the video tape. He reviewed clinical notes of the treatment of the accused over the years, including his presentation and treatment at the Long Bay Prison Hospital after his arrest. Dr Westmore is of the view that the accused was psychotic immediately before and at the time of the events giving rise to the charges. His bizarre and extreme behaviour as described by Ms Angilletta was psychotic behaviour, as were his beliefs about his own identity and powers, the identity of the dog and in other respects. The overall impression Dr Westmore received from the video tape of the interview was of an individual who had decompensated and was in a state of extreme regression. On the evidence of the interview alone he would require the accused to be admitted to hospital for observation. 19 Dr Westmore's opinion is that the accused suffers from a schizophrenic illness, the differential diagnosis of which includes a schizo-affective disorder or a primary mood disorder with psychotic features. He observed that the accused could not provide any sensible explanation or understanding about his previous mental state, though he acknowledged some resolving psychotic features in the form of auditory hallucinations and ideas of reference, as well as previous delusional beliefs. The clinical notes available from the prison medical records and the accused's slow response to treatment by anti-psychotic medication was, Dr Westmore thought, consistent with a diagnosis of psychotic illness. 20 Dr Westmore is of the opinion that the accused was mentally ill at the time of the events leading to the death of the child Jessica. He is of the opinion that the accused was suffering from a disease of the mind, specifically a schizophrenic illness, which totally deprived him of the capacity to know that he ought not do the acts he did or that the acts were wrong. 21 Dr Lucas reviewed a similar range of documents. He is of the opinion that the accused suffers from a long-standing severe psychotic disorder. He thinks that the persistence of delusional beliefs and unusual behaviour suggests that paranoid schizophrenia is likely to be the principal diagnosis, though another possibility is schizo-affective disorder. Although the diagnosis of bipolar disorder appears to have been the one usually made during the accused's admissions to the Mandala Clinic, the pattern of illness suggests to Dr Lucas that there was more than that to be said about the accused's mental condition. Dr Lucas is of the view that the accused was acutely psychotic at the time of the acts leading to the death of Jessica. He is of the opinion that at the time of the offence the accused was suffering from a severe psychotic disorder, most probably paranoid schizophrenia but possibly schizo-affective disorder, but that for legal purposes the exact nature of the diagnosis is not important. The accused was delusional and his behaviour was severely disturbed. His actions were in accordance with his delusional beliefs. At the relevant time although the accused probably knew the nature and quality of his actions he was unable, because of his disease of the mind, to reason about the wrongness of his actions with a moderate degree of sense and composure. 22 Dr Nielssen reviewed the same material. He formed the opinion that the accused had been suffering from a relapsing psychotic illness since at the latest 1996. Although earlier episodes were characterised by pervasive elevation of mood, the accused later developed a delusional belief that he was the reincarnation of Jesus and experienced schizophreniform symptoms such as auditory hallucinations, thought broadcasting and delusions of reference in the absence of elevated mood. Dr Nielssen is of the opinion that the history and the corroborative information available shows that the accused was acutely mentally ill at the time of the events giving rise to the charges as a result of an acute episode of a relapsing illness, recognised to be a disease of the mind. He was suffering from a defect of reason, that he was Jesus and was able to raise people from the dead, and also that the child Jessica had become possessed by an alien and the spirit of her dead father. His defect of reason resulted in the accused being unable to recognise that his actions in harming the child and her mother were morally wrong. His acutely aroused and confused state prevented him from reasoning about the consequences of his actions with any degree of composure. 23 In my opinion the accused has proved on this material that at the time of the events giving rise to the three charges he was mentally ill and has the defence of not guilty on the ground of mental illness available to him. He must therefore be found not guilty of each of the charges. 24 It is necessary to say a number of other things, however. The events giving rise to these charges have been distressing and perplexing for Ms Angilletta and her family and the accused's family. The sympathy of the Court goes out to those family members and others who have been touched by these tragic events. 25 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 that the Court thinks 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. 26 The Mental Health Review Tribunal is a body of professional experts. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. When it has done its 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. 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. 27 After hearing the evidence at any later review, it 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. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council. 28 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, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again. 29 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 previously, in strict custody within one of the psychiatric institutions catering for forensic patients. 30 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 expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously 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. 31 I find that the accused is not guilty of any of the charges by reason of mental illness. I order that he be detained in a hospital until released by due process of law. **********