Regina v Southon [2002] NSWSC 255

New South Wales Supreme Court

CITATION : Regina v Southon [2002] NSWSC 255 CURRENT JURISDICTION: Criminal Division FILE NUMBER(S) : SC 70077/01 25/03/02 HEARING DATE(S) : 26/03/02 27/03/02 JUDGMENT DATE : 27 March 2002

PARTIES : Regina Anthony John Southon JUDGMENT OF : Kirby J

COUNSEL : D Howard (Crown) Ms C Loukas (Accused) SOLICITORS : Ms G Rowlands - DPP (Crown) P Christenthorpe - LAC (Accused) CATCHWORDS : CRIMINAL LAW - Defence of mental illness - Self defence Criminal Procedure Act 1986 Crimes Act 1900 Mental Health Act 1990 LEGISLATION CITED : Evidence Act 1995 Crimes Amendment (Self Defence) Act 2001 Crimes (Sentencing Procedure) Act 1999 Mental Health (Criminal Procedure) Act 1990 CASES CITED : R v M'Naghten (1843) 8 ER 718 R v Porter (1935) 55 CLR 182 DECISION : Ref para 46

Extempore - Checked IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

KIRBY J

Gosford: Wednesday 27 March 2002

70077/01 - REGINA v Anthony John SOUTHON

JUDGMENT 1 KIRBY J: Anthony John Southon is charged that on 23 May 2001 at Gosford, he did murder Brian John Mackellin. Mr Southon has pleaded not guilty to that charge. He has, on advice, elected to be tried by a Judge sitting alone (s16(1) Criminal Procedure Act 1986).

Background 2 Mr Southon moved to his father's home at Toukley towards the end of 2000. By early May 2001 his father had noticed that he was behaving oddly. He was difficult to understand. He spoke in riddles. 3 On 12 May 2001, police found Mr Southon at the site office of a land development at Warnervale. It was reported that he had been there all night. He appeared confused. He had dried blood on each wrist. When asked, he said that he had used glass to cut his wrists. He had done so, he said, because he could not sleep and wanted it to stop. He reported voices speaking to him. 4 Mr Southon was taken to the Gosford District Hospital. He was admitted. The laceration to the tendon on the right side required surgical repair. Mr Southon was fitted with a plaster cast on the right forearm. At the same time, arrangements were made to have Mr Southon psychiatrically assessed. He was reported by the night nursing staff to be awake, disoriented and delusional. His behaviour was described as disinhibited and inappropriate. 5 The next day, 13 May 2001, Mr Southon was again said to be delusional. He was cleaning the hospital walls. He stated that they were very dirty. He was observed to be restless and writing numbers on a whiteboard. The numbers had no apparent significance. The same day he was assessed by a doctor, who recorded the following: (Exhibit A page 24). "Appears suicide attempt on basis of delusional ideas was unable to 'beat the drum at the end of the street so decided to kill himself'." 6 On 14 May 2001, Dr Ashby examined Mr Southon. He was withdrawn and preoccupied with his own thoughts, with ideas of reference from the Bible. Mr Southon was then admitted as a voluntary patient to the Mandala Psychiatric Clinic of the Gosford Hospital. An EEG and CT scan were undertaken. Neither showed any significant abnormality. 7 In the days that followed Mr Southon was described by nursing staff, according to the hospital notes, as difficult to manage. He was said to be psychotic and disinhibited. On 16 May 2001, the day he allegedly attacked Mr Mackellin, he lay in bed naked. He covered himself with a sheet. He refused to get up and shower. He made inappropriate comments to nursing staff. 8 Arrangements were made for Dr Bardon, a consultant psychiatrist, to see Mr Southon. Dr Bardon did so between 4 and 5pm that day. The consultation lasted between 20 and 25 minutes. Throughout the consultation, Mr Southon rocked back and forth on his bed. He was excessively polite. His hands were clasped on his chest. He did not want to get up or unclasp his hands until "tomorrow which would be a brand new day". He referred to the shackles on his ankles, apparently a reference to the hospital identification tag. 9 Dr Bardon believed that Mr Southon was in the elevated phase of a mood disorder. Stronger medication was required. He formed the view that Mr Southon, in his state of agitation, may not accept the medication he prescribed. He therefore completed a Schedule Form 2 under the Mental Health Act 1990 whereby Mr Southon ceased to be a voluntary patient. He could not thereafter leave the clinic of his own accord. 10 Nursing staff administered the injection at 5.50pm. Mr Southon, in fact, offered no resistance. Indeed he assisted by lying on his stomach so that the injection could be inserted into his buttock. He then got up. He had a shower and he got dressed. 11 At the hospital each night nursing staff undertake what is termed bed management. Rooms are prepared to receive new admissions in a way which will cause the least disruption to existing patients, if those admissions occur at night. This requires patients to be moved from their rooms to share rooms with other patients. Mr Southon was asked whether he would mind sharing a room with Mr Mackellin. Mr Mackellin was also asked whether he would object to Mr Southon. Since neither person objected, arrangements were made for Mr Mackellin to transfer to the room occupied by Mr Southon, room 7. The transfer took place at approximately 7.30pm.