REGINA v. REA [2000] NSWSC 588

New South Wales Supreme Court

CITATION : REGINA v. REA [2000] NSWSC 588 revised - 20/07/2000 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70021 of 2000 HEARING DATE(S) : Wednesday 28 June 2000 JUDGMENT DATE : 28 June 2000

PARTIES : REGINA v. REA, Brett JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: W. Robinson, QC. Accused: T. Evers (Sol.) SOLICITORS : Crown: S.E. O'Connor Accused: T.A. Murphy CATCHWORDS : Criminal law - trial - judge alone - mental illness - special verdict Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1990 CASES CITED : Fiori [2000] NSWSC 73 DECISION : Not guilty by reason of mental illness

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

No. 70021 of 2000

GREG JAMES, J.

WEDNESDAY 28 JUNE 2000

REGINA v. BRETT REA

JUDGMENT

1 HIS HONOUR: The accused stands charged that on a day between 5 July 1999 and 8 July 1999 at Point Clare in the State of New South Wales he murdered his father, Allen Kevin Rea. To that charge he has pleaded not guilty. In his plea he indicated a basis for his lack of guilt, that is, he asserted he was not guilty by reason of mental illness. 2 An election for trial by judge alone signed by the accused and witnessed, attesting to advice by his solicitor, accepted by the Director of Public Prosecutions as confirmed by the learned Crown Prosecutor before me, has been filed in accordance with the provisions of s.32(1) of the Criminal Procedure Act 1986. 3 There has been tendered to me and admitted by consent and without any factual challenge two psychiatric reports, they being, firstly, the report of Dr. William Lucas of 1 March 2000; secondly, the report of Dr. Olav Nielssen of 24 May 2000. 4 Upon a reading of those reports it is clear that no question arises as to the fitness of this accused to make that election, or as to his competence or fitness to plead and to take his trial. 5 Both parties have sought that the trial proceed before me as a judge only trial. 6 Prior to the trial coming on for hearing and by consent, the parties have provided to me material which included a copy of the proposed indictment and the reports of the psychiatrists, to which I have referred. In addition, referred to in those reports and provided as part of the committal papers, was the ERISP between police and the accused shortly following his apprehension some time after the death. I have had an opportunity to read all of that material and have done so. I have done so having been informed that no issues of fact or controversy over the facts arises in respect of this matter and it would be the common submission of both the Crown and the defence that, at the time of the commission of the acts causing the death charged, the accused was suffering from mental illness such that the relevant provisions of the Mental Health (Criminal Procedure) Act 1990 should apply. 7 In that regard, I have also informed myself of the findings which may be made at trial and the legal and practical consequences of those findings as required by Part 4 of the Mental Health (Criminal Procedure) Act 1990 and in particular s.37. I will include in my remarks on sentence the explanation required by s.37 by reference to the existence and composition of the Mental Health Tribunal constituted under the Mental Health Act 1990 and the relevant functions of that Tribunal, in accordance with the Act, including a reference to the requirements of that Act and that the Tribunal may make a recommendation for the release of a person detained in accordance with s.39 only if the Tribunal is satisfied on the evidence available to it that the safety of the person or any member of the public will not be seriously endangered by the person's release. 8 The material with which I have been provided by way of the short statement of admitted facts and the psychiatric reports confirm that what occurred on the occasion on which this accused killed his father was a most appalling tragedy which arose because at that time the accused, who had suffered for many years from paranoid schizophrenia and who had been diagnosed by many psychiatrists as suffering from that illness, underwent a florid bout of the disease and, whilst under the influence of the beliefs induced in him by the disease, committed the acts which would otherwise have given rise to criminal responsibility for the offence charged. 9 He has, on a number of occasions, because of the disease, been admitted to psychiatric hospitals. He was discharged from a psychiatric hospital only a short while prior to his father's death. 10 The whole of the material establishes that the accused was suffering from a serious mental illness such that he should not be held responsible for his actions. There is nothing to indicate that his actions were in any way provoked or occasioned by any inappropriate behaviour of his father or, indeed, of any of his family. 11 The short facts read as follows:- "Fay Rea, the mother of the accused Brett Rea, states that he had suffered from schizophrenia and paranoia for some years, but that by December 1998 he had become 'very paranoid'. On 5 July 1999, Brett Rea was seen by neighbours in and about the house at 5 Camden Place, Point Clare, near Gosford. That morning Elise Taylor observed him acting strangely in Coles at West Gosford. During the day Brett talked by phone to nurse Julie Stevenson of Pambula Community Health Centre and, amongst other things, told her that he had not taken medication for three days, that he was an alien and that 'bad Brett' was taking over. Ms. Stevenson formed the view that Brett was thought disordered and in need of immediate psychiatric assistance, which she endeavoured to arrange. On the evening of 8 July 1999 a next door neighbour, a Graham Dimmock, was concerned about the welfare of the persons in the house at number 5 and called the police. Sergeant Joseph Turski and Constable Brooke Anderson attended and located Brett on the floor of the house. He was dressed in a pair of heavily bloodstained jeans and was suffering from multiple lacerations to the throat, wrist and abdomen. Ambulance personnel attended and rendered him medical attention before removing him to hospital. He indicated to police that he did not know what had occurred and, when asked how his injuries were sustained, responded 'the claw thing, you know, the claw'. Police located the body of the deceased, Allen Kevin Rea, in one of the bedrooms, lying across the bed surrounded by a large quantity of blood." 12 I summarise what appears in the short statement of facts thereafter. On autopsy it was found the deceased had sustained some 36 injuries, mostly being stab wounds to the chest and abdomen. Death had occurred some two days prior to examination by the forensic pathologist. The carcass of the accused's much loved dog was also located in the bathroom covered in a considerable quantity of blood, having been stabbed to death. Psychotropic medication was found. 13 The accused was interviewed by police and although he had trouble remembering the incident, was obviously deluded at times and thought disordered. 14 The short statement of facts continues:- "Many of his answers to questions were incoherent. He recalled that his father had come up to visit him. He said that he was 'supposed to be picked up by a space ship'. He 'assumed' that he had stabbed his dog, Gypsy, who had turned into a human (Q.73-76) and 'assumed' that he stabbed his father (Q.254-256). At Q.362 he said, 'I just thought I killed the dog and dad 'cos I, I, I, must have, right and I do remember holding the knife'." 15 The psychiatric report prepared by Dr. Lucas discloses that the accused is a 39 year old man and the youngest of two children who, after his parents' separation, remained with his mother and sister. He had been a Telecom linesman. His psychiatric illness apparently began in 1993 when he was admitted to hospital in Gosford in that year. Since then he has received treatment for the illness. He worked apparently some 17 years with Telecom, living on a pension in 1997 and moved to Gosford from Pambula. 16 His family medical history supports the diagnosis of mental illness. Dr. Lucas chronicles in detail the account given by the accused to him, which is redolent of delusional behaviour. Dr. Lucas extracted portion of that account to indicate the severity of the illness. He also referred to the anti-psychotic medication which had been prescribed for the accused. He referred to feelings of despair and emptiness and the accused's sense of feeling terrible. He refers to the loss the accused refers to arising from the death of the dog, his faithful companion. 17 Dr. Lucas obtained from the accused also the history of the events of the day of the father's death. He referred to the accused's belief at the time that his water was poisoned, that the nursing home across the road had some involvement with a space ship being shot down and the home being the centre of a secret society. He referred to the attempts by the accused to kill himself and the complicated and bizarre conduct of the accused in attempting suicide. He describes the accused's belief that he was an alien experiencing an electric current across his head and being involved with bug-eyed aliens and flying saucers. He refers to the accused's discussion with his father in respect of his dog and the memory of the accused having a knife in his hand crying out for help. 18 Although the accused did not remember the actual killing, as recorded in the record of interview, he accepted that he must have been the person who killed his father. 19 It is unnecessary to detail the precise analysis embarked upon by Dr. Lucas in his report of the accused's mental dynamics in and around the time of the killing. Dr. Lucas concluded that the accused had a chronic treatment-resistant mental illness, as described by Dr. David Westcomb of Canberra, who had attended him at the Eden Community Health Centre, coupled with secondary depression. Dr. Lucas pointed out that the diagnosis is well-supported by all the records, including a lengthy statement by the accused's mother to police, the medical records from the Chisholm Ross Centre in Goulburn, and other records. 20 Dr. Lucas concluded that the accused suffered from chronic paranoid schizophrenia with prominent persecutory and paranoid delusions which has had a direct effect on his conduct in a number of incidents over the years. He later expressed the view that although the accused could not give an account of the killing or his mental state at the precise time of the infliction of the death-dealing wounds, there is abundant information allowing a conclusion to be drawn that he was severely mentally ill and acting on delusional beliefs into which in some way he almost certainly incorporated his father. 21 Dr. Lucas concluded also that the accused's behaviour around this time was controlled by his delusional beliefs, that the accused was suffering from a disease of the mind, paranoid schizophrenia, and, although it is probable he knew the quality and nature of his acts at the time, that in his opinion the offender was not able to reason about the wrongness of those acts with a moderate degree of sense and composure. The doctor made recommendations for the treatment of the accused whilst he remains in custody. 22 Dr. Nielssen similarly concluded that the accused's condition should be diagnosed as chronic schizophrenia. He said that Mr. Rea was experiencing an acute exacerbation of chronic schizophrenia at the time of the offence. "In any case, it has been established that Mr. Rea was acutely disturbed in the period immediately before the offence occurred and his state of mind at the time of the offence can be inferred with reasonable confidence from the observations before and afterwards. Mr. Rea reported the recurrence of symptoms of schizophrenia, a disease of the mind, in the form of bizarre delusional beliefs which, he said, arose from his misinterpretation of events rather than auditory hallucinations. He had a defect of reason in the form of a persecutory delusional belief that his father was attempting to trick him into some form of danger. The beliefs regarding his father were linked to the wider delusional belief that he was an alien, awaiting contact with spacecraft. His beliefs were so alarming and bizarre and his thinking so disorganised that at the time the offence occurred he could not have understood that his actions were wrong in a moral sense." 23 In reaching that conclusion, Dr. Nielssen had regard to similar material to that provided to Dr. Lucas, but the material provided by Dr. Nielssen was even more extensive. Dr. Nielssen also had regard to the conclusions of Dr. Lucas. Although there are some dissimilarities in expression between the two doctors, their conclusions as to the appropriate diagnosis of the accused and as to the condition of his mind at the time of the killing is the same. 24 There could be, on the material, no other conclusion that I could reach on the matter but that at the time of the commission of the acts comprising the offence for which the accused was charged he was suffering from a defect of reason caused by a disease of the mind such that he did not know the nature and quality of his act or did not know that what he was doing was wrong. He thus was not mentally responsible at law for the crime of which he is charged. 25 Although the parties have concentrated on the issue of mental illness, I must remember that this is not the only issue before me. Since this is a trial by judge alone, I direct myself as to the elements of the crime with which he is charged, that is, murder, and note I must be satisfied beyond reasonable doubt that the accused did the acts which caused the death of his father and did so with intent to kill or intent to cause grievous bodily harm or adverting to but not caring about the probability that his father might die as a result of his acts. 26 I am satisfied beyond reasonable doubt that he stabbed his father to death on the admissions contained in the short facts and as made both to the police and to the two psychiatrists. Although he himself does not have a memory of the precise matter, that conclusion inevitably follows from all the circumstances. There is no other rational hypothesis inconsistent with it. 27 I am satisfied also that when he stabbed his father he intended to kill or at least to cause grievous bodily harm or was recklessly indifferent to whether his father should live or die. 28 It has not been suggested by either counsel that there are any other directions that should properly be given by me to myself to comply with the requirements of the Criminal Procedure Act (1986) in these my reasons for judgment. 29 I remind myself as to the matter of mental illness, that it is the accused who bears the responsibility of proving it, but only on the lesser standard of proof, that is, on the balance of probabilities. I remind myself that it is not open to an accused to avoid an inference of intent arising from his actions with regard to matters that would only go to the proof of the existence of mental illness. I remind myself it is mandatory for me to bring in the special verdict of not guilty by reason of mental illness in the event that, on the balance of probabilities, I am satisfied, as I am here, of the matters that constitute that defence. 30 I remind myself that in those circumstances it is incumbent upon me to have regard to the professional expert evidence of the psychiatrists and in this case to have regard to the fact that the evidence is unchallenged; indeed, both parties accept that all opinion is unanimously of the view that the accused, at the time of the commission of the relevant act, was not mentally responsible. 31 I am obliged also to explain to myself the legal and practical consequences of the findings which are open in this trial. Under the provisions of the Mental Health Act 1990 which apply if I find the special verdict of not guilty by reason of mental illness, it is my duty to order the accused to be detained in strict custody in such a place and in such a manner as to me seems fit until released by due process of the law. He would not return automatically to the community; he would be detained in strict custody under the Mental Health Act 1990. 32 Whilst detained in strict custody in that way, the accused would come under the supervision of the Mental Health Review Tribunal, which comprises a president, or deputy president, with legal qualifications and two other members, one of whom must be a psychiatrist and the other with appropriate qualifications to serve on that body. Within 14 days after verdict the Tribunal would commence review of the accused's case, at the conclusion of which it would make a recommendation to the Minister for Health, which may be unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. 33 If the Tribunal is satisfied, but only if it was satisfied, that the safety of the accused or any member of the public would not be seriously endangered by his release, it could make a recommendation as to his release. If it makes such a recommendation, then that would be considered by the Department of Health which, in turn, would advise the Governor. The Governor would then, in accordance with the recommendation and advice of the Tribunal, either make an order for the detention of the accused or for his release. That order could be conditional or unconditional. The Governor could only make an order for release where the Tribunal itself had recommended release. 34 After that first hearing of the Mental Health Tribunal it can, at any later time and must at least once ever six months, review the case of the accused. At such a later review it should make a recommendation to the Minister for Health as to the continued care, detention or treatment of the accused or as to his release, conditionally or unconditionally. 35 Again, it would not be free at any stage of review to make a recommendation for release until it was satisfied that the safety of the accused or any other member of the public would not be seriously endangered. Again, the matter would go to the Department of Health, the Minister and the Governor and any recommendation could only be carried into effect by the order of the company. 36 If the accused were, at any time, released into the public on conditions and it appeared a breach of those conditions took place, then the Governor may order the apprehension of the accused. Such an order would follow by reason of a practical consideration that if a person is released, the Department of Health would maintain a watch over his case, with the assistance of the Community Health Centre, a private psychiatrist, or one of the other public facilities available. 37 The conditions which could be applied include conditions going to such matters as living in a particular place, taking particular medication and so on, to ensure that the patient or the accused is properly cared for. 38 Other than pursuant to any such release, the accused would remain in strict custody in one of the psychiatric institutions catering for forensic patient. The only manner which a person ceased to continue to be a patient is when he is released by the Governor, or is released on conditions after the expiration of a particular period of time, or in particular circumstances the release should become unconditional. But that recommendation could only be made if the Tribunal were satisfied, as I have said. 39 Having reminded myself, as I am required by the Act, of these matters, I find that it is, on the evidence in this case, perfectly clear that the accused was mentally ill so as not to be responsible according to law for his actions at the time when the act of killing was done. Therefore, I return the special verdict that he is not guilty by reason of mental illness referred to by s.38 of the Mental Health (Criminal Procedure) Act 1990. I have been guided in reaching that verdict by the legal directions I have referred to and those decisions cited by me in my judgment in Regina v Fiori [2000] NSWSC 73. In those circumstances and with the benefit of the submissions of counsel, I make an order in accordance with s.39 of the Mental Health (Criminal Procedure) Act 1990, that is that Mr. Rea be detained in strict custody at A Ward at Long Bay Detention Centre until such time as is determined according to law, or until released by the processes of law. ********