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. The assault 12 The circumstances in which Mr Mackellin was seriously assaulted are not in doubt. At approximately 7.45pm nursing staff heard a noise coming from the vicinity of room 7. The noise was a series of three blows in quick succession. So forceful were the blows that some staff members felt the vibration through the floor. Nurse Garry Stanton and Nurse Karen Martin rushed to room 7. Mr Stanton described what he saw in these words: "I saw Anthony kneeling on the bed at the foot of the bed. Anthony's back was facing me. Brian was lying across the bed. His head was closest to the wall and his legs were hanging off the side of the bed. I saw that Brian was apparently unconscious." 13 Anthony is, of course, a reference to the accused Mr Southon. Brian is the deceased, Mr Brian Mackellin. 14 Nurse Martin described what she saw in similar terms. Nurse Stanton activated the duress alarm. He used his right shoulder to push Mr Southon away from Mr Mackellin. Mr Southon did not resist. He left the room, making his way to the toilet. Frantic, indeed heroic, efforts were made to revive Mr Mackellin. He was ultimately transferred, still unconscious, to the intensive care unit of the Gosford Hospital. 15 Mr Mackellin had suffered significant injuries. They included a fracture to his nasal bone and his right maxilla. From the blood spatter it appeared that his head had been smashed against the wall. He was bleeding profusely. He suffered cardiac arrest, apparently through blood having obstructed his upper airway and the possible effects of asphyxiation due to neck compression. In the days that followed, Mr Mackellin remained in a coma on life support. It was clear that he had suffered significant and irreversible brain damage. On 22 May 2001 the decision was taken to withdraw the life support. Mr Mackellin died the next day, 23 May 2001. 16 Returning to Mr Southon, and 16 May, having fled to the toilet, Mr Southon was ultimately arrested. When arrested his plaster had been removed. It was recovered from the toilet. It was covered in blood. The nightshirt he was wearing was also covered with blood on the front right hand side. Mr Southon has, on advice, admitted that he assaulted Mr Mackellin (s184 Evidence Act 1995 (Exhibit D)). I have no doubt that he did so. Self defence 17 Mr Southon remained in the toilet for some time. He could be heard in the corridor outside pacing up and down, muttering. Police came to the hospital. They spoke to Mr Southon through the bathroom door. They asked him to lie on the floor whilst they entered. He did so. Once outside the room, Senior Constable Haldane had the following conversation with Mr Southon: "I said 'What did you do?' The defendant said 'I bashed him. He asked me for cigarettes. I didn't have any. He came at me and I bashed him'. I said 'What did you use?' He raised his arm and he said 'I had a cast, I used that' and he indicated the corner of the bathroom where I saw on the shelf what appeared to be a pile of bandages. There was blood on the bandages. I said 'Okay don't say any more'." 18 Mr Southon was taken to the Gosford Police Station. The police said they wished to interview him on video. Mr Southon responded, according to Constable Hill, with these words: "You're wasting your time mate. All I remember is that he asked me for a cigarette and I said I didn't have any and then he must have hit me and I must have hit him. That's all I can tell you." 19 My attention has been drawn to the Crimes Amendment (Self Defence) Act 2001 which operates in respect of trials after 22 February 2001 and therefore has application to this trial. The Crown is obliged to exclude, beyond reasonable doubt, the reasonable possibility that Mr Southon's account, or his various accounts to the police, may possibly be true or accurate. I am satisfied that the Crown has discharged that onus. I have reached that view for a number of reasons. First, I accept the evidence of Nurses Stanton and Martin. Their description of Mr Southon straddling Mr Mackellin suggests that, at least at that point, Mr Southon was the aggressor. 20 Secondly, Mr Southon did not sustain injuries apart from swelling to the knuckles. That swelling was consistent with Mr Southon having struck Mr Mackellin. 21 Thirdly, Mr Mackellin's fists were examined, as reported by Detective Cremen. They showed no injuries. I infer that Mr Mackellin did not strike Mr Southon. 22 Fourthly, the victim was unarmed. Mr Southon was not conventionally armed, but had a plaster cast, which he acknowledged that he used. 23 Fifthly, the assertion by Mr Southon that Mr Mackellin asked him for a cigarette and then reacted angrily when he refused to provide one is implausible. Mr Mackellin had cigarettes. They had been delivered by his wife that day. They were given to him shortly after lunch. The reaction described by Mr Southon would have been entirely out of character for Mr Mackellin. Mr Mackellin was well known to the staff of the Mandala Clinic. He had been admitted on a number of occasions suffering from depression. He was described by everyone as mild-mannered and gentle. He was not given to anger. His wife said that he was placid. He spoke to his wife between 5 and 6pm that evening. He said to her that he was feeling much better. 24 Mr Southon, in contrast, had been agitated throughout that day. Allthough it was thought that he had settled after the injection, it is plain that he had not. He had been the subject of a Schedule Form 2 signed by Dr Bardon that afternoon. 25 No submission has been made on behalf of Mr Southon that self defence has not been excluded. I find that the Crown has excluded self defence beyond reasonable doubt. Provocation 26 No suggestion has been made on behalf of Mr Southon that the assault was occasioned in circumstances of provocation on the part of Mr Mackellin. When Mr Mackellin was found, he was partly undressed. The belt of his jeans was undone. The jeans themselves were partway down his legs. There is no eye-witness account of the events immediately before Mr Southon's assault. However there is no evidence of provocation. The state of Mr Mackellin's dress is entirely consistent with his beginning of the process of getting into bed, it being quite late. Mr Southon, in his conversations with nursing staff and with police immediately after the incident, did not suggest any provocative conduct on the part of the deceased. I therefore exclude, beyond any doubt, provocation. Intoxication 27 Mr Southon was interviewed by a number of doctors after Mr Mackellin's death in the search for reasons for his behaviour. Part of the history he provided included the suggestion that he had taken the drug Zyban. Zyban is an anti-depressant. It is marketed as a drug that will assist those trying to give up cigarettes. Mr Southon told Dr Nielssen that about six weeks before 16 May he began taking Zyban. He had been provided with an almost full packet by a friend. He said that he took it every day for a few weeks. 28 The issue was examined by Dr Westmore and Dr Mastroianni, to whom Mr Southon was referred. The history provided by Mr Southon to those doctors was not always consistent. He told Dr Mastroianni that he ceased taking Zyban a week before 16 May. He told Dr Westmore that he ceased taking the drug two days before a head injury. The injury occurred between one week or perhaps two weeks before the incident. 29 The Crown sought an opinion from Professor Mitchell, the Professor of Psychiatry at the University of New South Wales, as to the possible association between the Zyban and the psychiatric disturbance Mr Southon appeared to have suffered. Professor Mitchell, in a report, quoted from the Australian Product Information, obtained from the manufacturer, which was in these terms: "Zyban may precipitate a manic episode in patients with bipolar disorder during the depressed phase of their illness. It may activate latent psychosis in other susceptible individuals." 30 Professor Mitchell said that the possibility of Zyban having contributed to the psychotic reaction or violent behaviour of Mr Southon could not be excluded. 31 Zyban is a drug which is only available on prescription. Where, as in this case, it is obtained otherwise than on prescription, its ingestion is self-induced intoxication (s428A Crimes Act 1900). Nonetheless, murder being a crime of specific intent, intoxication whether self-induced or otherwise, may be taken into account (s428C Crimes Act). It may not be taken into account in respect of manslaughter (s428E). 32 A blood sample was taken from Mr Southon shortly after his arrest. Analysis of the sample did not reveal Zyban in Mr Southon's blood. That does not necessarily exclude its role as a precipitant of psychosis. However, it appears an unlikely cause in Mr Southon's case. Dr Nielssen gave the following evidence, which I accept: (T22) "Q. So once the mind is, if I can use the word generally disturbed, as a result of such a drug, if there is indeed such effect taking place, then that disturbance can continue beyond the life of the drug within the body? A. Yes, but again I think it is unlikely that Zyban was the cause because the history I elicited was of taking it intermittently some weeks before the onset of symptoms, so if it was a factor it was a very minor factor." 33 Intoxication has not been raised as an issue on behalf of Mr Southon. Such evidence as there is relating to intoxication appears to me to be slight, given the blood test and given the opinion which I have accepted of Dr Nielssen. 34 I am satisfied, as I have said, that Mr Southon did, as he acknowledged, severely assault Mr Mackellin on 16 May 2001, thereby leading to his death on 23 May. I am further satisfied beyond reasonable doubt that he did so in circumstances which I would infer, from the circumstances of the assault (subject to the defence of mental illness), was with the appropriate intent. 35 I therefore believe that the Crown has established the elements of murder subject to the defence of mental illness to which I now turn. The defence of mental illness 36 Section 38 of the Mental Health (Criminal Procedure) Act 1990 provides that, where a person is not responsible according to law for his or her actions a jury or, in this case a Judge sitting alone, must return a special verdict of not guilty by reason of mental illness. The section adopts and incorporates the pre-existing law which is known as the M'Naghten Rules (R v M'Naghten (1843) 8 ER 718) expressed by Lord Justice Tindal in these words: (at 723) "... we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." 37 The onus is upon the accused upon the balance of probabilities (see also R v Porter (1935) 55 CLR at 182 by Dixon J). 38 Here Mr Southon has been examined by three forensic psychiatrists, Doctors Westmore and Mastroianni on behalf of Mr Southon, and Doctor Nielssen on behalf of the Crown. Each doctor, with varying degrees of emphasis, has supported the defence of mental illness. Doctor Westmore said this: "Of his mental state around the time of the incident he reports that he was receiving special messages from the radio, newspapers, and television. He believed people could read his thoughts and he had self harmed. He described his energy levels as being both high and low and that he had abnormal auditory experiences. Investigations are reported to have been normal." 39 Doctor Westmore expressed the view that Mr Southon was, as a matter of probability, mentally ill at the time of the incident. He found it difficult to express a view on the precise issues which must be addressed in the context of this defence. However, he believed "the issue of mental illness should be put to the court for its consideration". 40 Doctor Mastroianni was rather more definite. Mr Southon has been held at Long Bay Prison Psychiatric Hospital since shortly after his arrest. Doctor Mastroianni is a consultant to that hospital. He has had the advantage of seeing Mr Southon each week since his arrest. Doctor Mastroianni noted the assessment of the psychiatric registrar upon Mr Southon's admission to that hospital on 19 May 2001. The assessment was in these terms: "Too thought disordered to give adequate history. Marked self neglect, withdrawn with moderate psycho motor retardation. At times perplexed, marked poverty of speech with frequent thought blocking and tangentiality, stating 'I just want to beat the drum'. Believes he can read other people's minds, receives messages from TV, but they were garbled and distressing. Interpreted them as telling him to be loving and kind, but before he attempted suicide they became bad and upsetting. Believes a higher power at times controlling him. No insight. Poor judgment." 41 Doctor Mastroianni diagnosed schizophreniform psychosis, which is a disease of the mind. It combines the symptoms of schizophrenia, but does not satisfy one aspect of the definition of that disease, which is that the symptoms must endure for a period of six months. 42 Doctor Mastroianni believed that Mr Southon's judgment and behaviour were significantly affected by mental illness. Dr Mastroianni said this in his report of 19 November 2001 and I quote: "From a psychiatric point of view Mr Southon meets the criteria for McNaughton's Rules for a defence of not guilty on the grounds of mental illness as follows: (1) He was disordered in the mind by virtue of his psychotic symptoms; (2) His psychotic symptoms arose from a disease of the mind diagnosed as schizophreniform psychosis; (3) That although Mr Southon would normally have known that the act he was committing was wrong, his mental illness symptoms significantly impaired his judgment to be able to appreciate the nature and quality of his act and its wrongfulness." 43 Dr Mastroianni has continued to see Mr Southon at the prison hospital. Mr Southon has not displayed evidence of psychosis since August 2001. Medication ceased in January 2002. He has not had a recurrence of thought disorder or mood instability since the withdrawal of medication, which is a positive sign for his future. Further observation however is necessary before it can be said that relapse is unlikely. 44 Dr Olav Nielssen examined Mr Southon on behalf of the Crown. He prepared a report dated 26 February 2002. Dr Nielssen also formed the view that schizophreniform psychosis, an acute mental illness, was the most likely diagnosis. Dr Nielssen said this in his report: "However despite the absence of a clear link between psychotic symptoms and Mr Southon's behaviour it is clear that he was acutely mentally ill at the time of the offence and in my opinion has the defence of mental illness open to him. He was affected by an acute psychotic episode which is recognised in law to be a disease of the mind. The illness resulted in a defect of reason in the form of disorganised thinking, the experience of perceptual disturbances he took to be real, the effect of extreme fluctuations in mood and several delusional beliefs. It was Mr Southon's first episode of mental illness and he had no previous experience to help him understand the symptoms which, in combination with the severity of symptoms left him unable to reason with composure about his actions, to realise that what he was doing was morally wrong or to control his actions." 45 I accept the evidence of Dr Mastroianni and Dr Nielssen and, so far as it goes, that of Dr Westmore. I am persuaded therefore, on the balance of probabilities, that Mr Southon, at the time he attacked Mr Mackellin, suffered from such a defect of reason by reason of disease of the mind so as to not to know the nature and quality of his act or, if he did know, not to appreciate that it was wrong. Just before I go to the order that should be made, are there any particular matters that I should include in the judgment first Mr Crown? CROWN PROSECUTOR: Your Honour on the consideration of some of the directions I don't know that your Honour need specifically-- HIS HONOUR: I didn't advert to s165 and hearsay. In this case I put on the record, I don't think I need include it in the judgment, that I am conscious of the fact that the hospital notes are in the nature of hearsay. Nonetheless they are a continuous record and in the circumstances I regard them for my purposes as a reliable record, I am conscious of the potential for unreliability. CROWN PROSECUTOR: Your Honour the only, I think, other issues related to the silence of the accused when spoken to by police and also the election not to give evidence-- HIS HONOUR: Yes. Perhaps when I get the judgment back I will incorporate into the judgment a reference to the fact that Mr Southon has not given evidence before me. However I draw no adverse inference from that fact and the issues have been dealt with based on the evidence that's been placed before me. I do not believe that I need otherwise repeat the formula which is in Azzopardi but I am conscious of it. CROWN PROSECUTOR: Yes your Honour. I think the only other thing, perhaps for abundant caution your Honour, is just to note s37 of the Mental Health (Criminal Procedure) Act which is a mandatory section that a jury at least be informed of the consequences of a finding of-- HIS HONOUR: I had intended to make an order and then to perhaps explain to Mr Southon that the matter will then go before the Mental Health Review Tribunal for review from time to time and there is a procedure which is established. I do not know that I need go into that in great detail. CROWN PROSECUTOR: ...(not transcribable).. suffice. Yes, thank you your Honour. HIS HONOUR: I will give the explanation and if it needs to be supplemented then you might assist me. CROWN PROSECUTOR: Yes your Honour. HIS HONOUR: Ms Loukas is there something? LOUKAS: Yes. Just in relation to I think the last matter that my friend raised in relation to your Honour having to direct yourself in terms of the explanation of the provisions under the Mental Health Act. HIS HONOUR: Yes I had better get it. I haven't got it here. Has anyone got it readily-- LOUKAS: I think I have it here. HIS HONOUR: I noticed in one of the judgments you handed to me, Gillett, James J perhaps I can conveniently call him, incorporates that passage-- LOUKAS: Yes that's s37 your Honour, Explanation to the Jury. I have a copy of that if your Honour requires it. HIS HONOUR: Yes if you could I will be grateful. LOUKAS: Your Honour I've done some underlinings on the page. HIS HONOUR: That I am sure is helpful. LOUKAS: Thank you your Honour. Yes, as my friend has indicated, s37 is the form of the direction one would normally give to a jury. In the circumstances of a Judge alone trial it would be appropriate for your Honour to direct yourself in those terms. That's the only application I would be making in terms of the directions your Honour. HIS HONOUR: Thank you. I will just take a moment to read this. In many ways I think I can well understand why, in a summing-up where there is a jury, a Judge would include that, because the jury might feel some diffidence in embracing the defence because they would be worried about what might happen were they to return that verdict. LOUKAS: Indeed your Honour. HIS HONOUR: I think in this case I am certainly conscious of that section, and the appropriate time to deal with it is after I complete the judgment and in an explanation to Mr Southon of what will happen in the future. LOUKAS: Make the relevant order. HIS HONOUR: Yes. LOUKAS: Thank you your Honour. HIS HONOUR: In the circumstances I make the following order. Order 46 I therefore find that the accused, Mr Southon, is not guilty by reason of mental illness. I order that you be detained at Long Bay Prison Hospital and thereafter in such other places as are determined according to law until you are released by due process of law. HIS HONOUR: Mr Southon, to explain that order, there is as you may know a body known as the Mental Health Review Tribunal. That body consists of a number of individuals, some of them with psychiatric qualifications, some of them with legal qualifications, who periodically review the orders that are made of persons such as yourself who are detained pursuant to an order of the sort that I have just made, and they review the mental health of those persons and they make recommendations by reference to the psychiatric health of the individual with whom they are dealing and in accordance with s39 of the Act, that is the Mental Health Act. The Tribunal may make a recommendation for the release of the person detained, if satisfied on the evidence available to it, that the safety of the person or any member of the public, would not be seriously endangered by the person's release. So that the effect of my order is, therefore, that you are found not guilty on the grounds of mental illness but that you are detained; that you will be periodically reviewed by the Mental Health Review Tribunal and that that Tribunal, depending upon the evidence as to your mental health, may make a recommendation as to your release if they believe that you are not a danger to yourself or to other members of the public. Do you understand that? ACCUSED: Yes I do. HIS HONOUR: All right, well you might sit down. Well it remains for me simply to say to both families that I am sure that this is a tragic event, and I can see from your numbers, from every perspective. And that each of you in your separate ways has been through hell and one can only sympathise with you. But I am sure the members of the family of Mr Mackellin, who on all accounts was a gentle and decent man, I am sure you would understand the nature of the judgment that I have given and the pernicious or the vicious quality of mental illness which so afflicted Mr Southon on this occasion. And I therefore think it appropriate to say that to each family. All right is there anything else Mr Crown? CROWN PROSECUTOR: Your Honour, just a couple of matters. The Crown does have a victim impact statement prepared by the wife of the deceased. Your Honour, under the Crimes (Sentencing Procedure) Act, before a victim impact statement can be presented to a court under the Act, there must be a conviction. HIS HONOUR: Yes. CROWN PROSECUTOR: Now in such a matter and in such a finding as we have here, obviously there is no conviction. And I do not know if my friend has yet had time to get instructions about that but I had raised with her earlier today the possibility that one might be handed up by consent. Of course the law is that your Honour cannot take it into account-- HIS HONOUR: No. CROWN PROSECUTOR: --any sentencing and of course this is not really a matter for sentencing. But subject to what my friend's instructions are, I thought that might be an appropriate course to take. If her instructions are contrary to that proposal then I would have nothing further to add on that. Perhaps while she is discussing that with Mr Southon, your Honour, the only other issue I wanted to raise a little bit unusually, but nevertheless it struck me as being appropriate, as I read through the brief your Honour I would have to say that I was struck by the selflessness of two persons in particular, as well as a number of others that were involved in the Crash Team at the hospital. But of particular note, it seemed to me going through the statements, were Mark Joyce who was the nursing unit manager, who seems to have seized control of the situation very effectively. He administered mouth to mouth to Mr Mackellin whilst Mr Mackellin himself was clearly bleeding in the area of his mouth and it was quite a remarkable performance by Mr Joyce. And similarly your Honour, nurse Karen Martin who was first on the scene. From the statements of other witnesses and her own statement, it just appeared was amazingly competent and quick in her response. And I just thought it appropriate to make those comments and leave those with your Honour. HIS HONOUR: Yes thank you for reminding me of that Mr Crown. Just on the victim's impact statement is that-- LOUKAS: Yes well your Honour, of course in terms of the law it is inappropriate for a victim impact statement to be tendered at this stage of the proceedings. I mean victim impact statement is post conviction. Now your Honour of course I was only handed the document this morning, just before your Honour came on the bench and I have not had an opportunity to take instructions from my client. I know that of course my client is very much concerned about the position of Mr Mackellin's wife and family and discussed with me if he could write a letter expressing his remorse and unhappiness at what had occurred. But in the circumstances, an actual victim impact statement your Honour, legally it is inappropriate to be tendered. And again, I have not even had-- HIS HONOUR: No. LOUKAS: --an appropriate opportunity to take instructions. HIS HONOUR: I have no doubt Mr Crown and Miss Loukas, just having read the papers in this matter and in particular the statement of Mrs Mackellin of the agony that she has gone through and her children, and Mr Mackellin's children have each gone through, because as I say, the impression that comes through the papers, and there are many people who speak of him, is of a decent and gentle man. I think I read nurse after nurse who was familiar with him, saying exactly that and such a loss is tragic and one can only imagine the anguish that they have experienced. I do not, probably in the circumstances, do not really need to say more than that, or to take, to see the document to appreciate it. But my heartfelt sorrow and condolences are extended to the family, indeed both families for what is, on any view, a tragedy, a human tragedy for many individuals. But so far as the staff members of the hospital are concerned, indeed I had meant to incorporate into my judgment, and I am grateful for having been reminded, that the efforts of the staff of the clinic can only be described as heroic and in particular the efforts of nurse Mark Joyce and nurse Karen Martin. And I am sure a transcript will be taken out of these remarks and I will ensure in any event that a letter is sent to the hospital drawing attention to the fact that what they did was indeed heroic and selfless. Is there anything further? CROWN PROSECUTOR: No thank you-- LOUKAS: No your Honour I do not think there are any further matters. HIS HONOUR: Well it remains only for me to thank both counsel for the very considerable assistance you have given me throughout this trial. Mr Southon, you might now go with the officers if you would. ACCUSED: Thank you. ********** Last Modified: 04/08/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.