New South Wales Supreme Court CITATION : R v GJF, R v GFF, R v KHF [2002] NSWSC 737 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70009/02; 70204/02; 70029/02 HEARING DATE(S) : 12/08/02, 15/08/02 JUDGMENT DATE : 22 August 2002 Regina v GJF PARTIES : Regina v GFF Regina v KHF JUDGMENT OF : Barr J at 1 Crown: P Barrett COUNSEL : Accused GJF: CB Craigie SC Accused GFF: PR Zahra SC Accused KHF: R Hoenig Crown: SE O'Connor SOLICITORS : Accused GJF: Burston, Cole & Co Accused GFF: G Elks Accused KHF: Roderick Storie CATCHWORDS : Criminal Law - murder - whether accused guilty - defence of mental illness DECISION : See paras 75, 76 and 77 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Thursday, 22 August 2002 70009/02 – REGINA v GJF 70204/02 – REGINA v GFF 70029/02 – REGINA v KHF JUDGMENT 1 HIS HONOUR: The three accused, to whom I shall refer as GFF, GJF and KHF, are charged with the murder on 16 October 2001 at Glossodia of the deceased, to whom I shall refer as FEF. 2 Before the day on which the trial was due to commence, each accused executed an election under the provisions of s 32 Criminal Procedure Act for trial by judge alone and the Crown prosecutor consented to the proposed form of trial. In view of what I understood about the state of health of each accused before and during the events giving rise to the charges and of the defence each accused was intending to raise, I invited counsel to tender relevant expert psychiatric evidence. In due course I expressed myself satisfied that each accused had the mental capacity to elect and I directed in each case that the trial of the accused proceed before myself without a jury. 3 The deceased was thirty-five years old when she died. She and GFF married in 1985 and had two children, GJF born 26 August 1983 and KHF born 25 January 1986. Relations between the deceased and GFF were poor. Throughout the marriage he used to assault and injure her. She used to tell her sister that she wanted to get away from him but she never managed to do so. Among other things the birth of their children prevented that from happening. Neighbours were concerned about violence at the house where the family lived at Glossodia. Police attended on a number of occasions and took GFF away. Towards the end of 2000 things had become intolerable for the deceased. GJF had damaged the house and the deceased was frightened of him. In December 2000 she obtained an apprehended violence order against GFF and they separated. GFF and GJF went to live at premises in Katoomba. The deceased and KHF remained at Glossodia. GFF repeatedly disobeyed the apprehended violence order by telephoning the deceased and calling at the house. By early 2001 she had become so apprehensive about him and GJF that she told her sister that she feared for her life. In July 2001 GFF went to the house while KHF was there and threatened to kill himself. Throughout these times he and GJF were consuming substantial quantities of cannabis, spending, it seems, the proceeds of a settlement GFF had received after an industrial accident. By August 2001 GFF had moved back into the house. The deceased had had him see a psychiatrist and was trying to ensure that he took the prescribed medicine. By September she was telling a work colleague that he was not taking his medication and that there were court proceedings over the house. He was trying to make KHF say that the deceased was a bad mother. 4 In October 2001 GFF was admitted to Pialla, the psychiatric unit at Nepean Hospital. Later on he signed himself out of the hospital against advice. On 15 October he and GJF travelled from Katoomba to Glossodia. No warning was given to the deceased. Understandably an argument arose between him and the deceased. She left home at about 8.30 pm to go to work at Westmead Hospital. At about 9.30 pm she was seen speaking on the telephone and appeared upset. Later on she telephoned Katoomba police station and spoke to an officer there, expressing concern that GFF had signed himself out of Pialla. 5 At about 8.05 am on 16 October 2001 a lawn mowing contractor attended the house to give a quotation to mow the lawn. He heard very loud music coming from the house and had to knock several times before the door was answered by GFF. He asked the contractor whether he were a Christian. He appeared tense and angry. He said that "they" were dancing and praising the Lord. 6 A next-door neighbour heard the sounds of glass breaking and people talking and telephoned the police because he thought that KHF was alone in the deceased's house and that someone had broken in. He kept watch as he did so. At 8.40 am the deceased arrived home from work. She got out of her car and started to walk towards the house. The neighbour was about to call out a warning when the deceased turned round and walked quickly, then ran towards a neighbour's house. She bashed on the door asking to be let in urgently. When the door was opened she ran inside. The neighbour locked the door behind her and telephoned for the police. A few moments later GJF ran to the house and kicked repeatedly at the front door until it gave way. He was holding two large knives. The neighbour ran to protect her children. The deceased ran out of the house in fear. GJF ran after her and threw her to the ground. 7 Concerned neighbours began to arrive. GFF told one of them that the deceased deserved to die because she had been torturing GJF for years. He and KHF ran towards the deceased. GJF held off with a knife a neighbour who tried to intervene. GJF and GFF inflicted several knife and other wounds on the deceased's body. The two wounds which combined to kill the deceased were a deep knife wound to the chest which penetrated the lung and the wound caused by the driving of a pair of surgical needle holders through the right nostril into the brain, causing subarachnoid haemorrhage. 8 The Crown must prove beyond reasonable doubt that each accused did the acts which constituted the offence of murder. Counsel for GJF and GFF have conceded that each of those accused has been shown beyond reasonable doubt to have killed the deceased with intent to kill her. Each of those accused contends that he is not guilty of any offence, however, because at the time of the events giving rise to the charge he was mentally ill and therefore not legally responsible for his actions. 9 The Crown case against KHF is that, subject to the defence that she is not guilty on the ground of mental illness, she also is responsible for the murder of the deceased because she was present during the attack in which the deceased was killed, taking part in the attack pursuant to an agreement with the others to kill her. Alternatively it is submitted that she was present aiding and abetting or encouraging the other accused and thereby made herself an accessory to the murder. The Crown submits that the evidence establishes that KHF helped drag the deceased towards the spot where she was killed, kicking and punching her and holding her legs. 10 Defence counsel concedes that the evidence establishes that KHF was present but not that she was a party to any agreement with her co-accused to kill the deceased or do her really serious injury and not that she aided or abetted her co-accused. Rather, it is submitted, it is a reasonable possibility that KHF did not hold the deceased's legs as part of any arrangement with the others or with any intent to assist them or with the effect of assisting them. The submission continues to the effect that KHF's holding the legs of the deceased in the knowledge that GJF had taken a knife was an unlawful and dangerous act that contributed to the death of the deceased so that, subject to the defence of mental illness, she might be found responsible for the manslaughter of the deceased. Defence counsel submits that KHF is not guilty of any offence because she was at the time of these events mentally ill and not legally responsible for her actions. 11 Statements were tendered of persons present immediately before and at the time that the deceased was killed. Mrs Ford is the occupier of the house to which the deceased ran for help and who telephoned the police after GJF broke into the house. I have already summarised her evidence. She did not witness the killing or the events in which the deceased was dealt with by the accused. 12 Mr Camarsh is the neighbour who saw the deceased return home and run into Mrs Ford's house. After the deceased arrived at Mrs Ford's house Mr Camarsh saw GFF and KHF walk out of the deceased's house. Then he saw GJF come running out of the house and heading straight towards Mrs Ford's house, carrying a knife in each hand and screaming incoherently. GFF and KHF were about three metres to Mr Camarsh's left, watching what was happening. Mr Camarsh spoke anxiously to GFF because it seemed obvious that GJF was going to kill the deceased. GFF responded by saying that the deceased deserved it. He and KHF then started to walk away. In the meantime the deceased had run away from Mrs Ford's house and GJF had chased, tackled and brought her to the ground. GFF and KHF ran towards the deceased. All three kicked her, but Mr Camarsh could not see where they kicked her. She broke free and ran for a further couple of metres but the three accused caught her and dragged her into the front yard of a house. They kicked at her again as she lay curled up on the ground. Mr Camarsh made a further 000 call. GJF fended off the neighbour who tried to intervene and threatened him with the knife, then returned to the others and the deceased, who was lying on the ground moaning. The three accused stood over her. She was still and silent. Mr Camarsh was in great distress throughout these events. He saw blood on GFF's hands when the police arrived and arrested him. 13 Mr Chapman was a neighbour out walking his dog. He saw the deceased lying on her back. A young girl who must, I think, have been KHF was sitting on one side of her and two men were behind the deceased, sitting or kneeling near her. There was a knife protruding from the deceased's chest. He heard shouting but did not know whether the people around the deceased were helping or hurting her. 14 Miss Hall and Miss Dean were walking past on their way to school. Miss Hall saw the deceased sitting upright, supported by a man crouched behind her. He was obviously GFF. The woman's arms were in funny positions. She was screaming as though in pain. KHF was kneeling near her feet. Miss Hall continued to walk on and then looked back. The deceased was then nearer the road. KHF was still kneeling at her feet and GFF was supporting her as before. The deceased was screaming, "Don't hit me, don't touch me, leave me alone". GFF said, "I'm sorry, I didn't mean to hit you". GJF was lying next to the deceased. The body of the deceased was moving up and down but Miss Hall could not see it well because GJF was in front of it. 15 Miss Dean saw the deceased on the ground and KHF kneeling at her feet. GFF was kneeling at her head. 16 Miss Brial was watering her front garden. She looked across the street and saw GFF about fifteen or twenty metres away. The deceased was lying at his feet on the grass. He repeatedly shouted that she was Satan, the devil, and was going to die. The other accused were a couple of metres from him, apparently quietly watching him. He went down on one knee and raised the deceased's upper body, held and looked at her face and then lowered her body to the ground. 17 KHF was interviewed by investigating police officers in the presence of her solicitor not long after her arrest. A video tape and a transcript of the interview have been received into evidence. She said that God had told her that her mother had died in a car crash the previous night. She, her father and brother were at the house. They felt an evil presence. GJF went outside holding a knife, probably a chef's knife. There was a demon there that looked like her mother. Her mother used to cut up her brother into little pieces when he was young and drink his blood. She (or rather the demon) wanted to cut off her brother's testicles, she thought. Her brother attacked the demon with the knife. She was holding on to the demon's legs. It was probably her brother who stabbed the deceased with the needle holders. She was holding on to the legs at the time. There were these questions and answers. Q159 What do you think would have happened if you hadn't held on to … A Well, if we let it go, it would haunt us. Q160 Right. A The evil spirit. That's what evil spirits do. Q161 M'mm. A It says in the Bible, you know, if you, through the Lord Jesus Christ, if you don't get rid of the evil spirit, it'll haunt you seven times over. 18 She spoke about praying in tongues and added - A167 Me, I was praying to kill that demon. 19 There were also these answers - A214 I just prayed in tongues, that the demon would die and that the demon was saying, "Stop that, stop praying, stop praying". … Q237 O.K. I notice before that on your foot you had some blood. Whose blood's that? A Probably my mum's … the spirit's. 20 No witness saw everything that happened. No one saw any of the blows delivered with any knife or with the needle holders. This is not surprising in view of the surprise and speed with which the events took place and because of the different points of view of the several witnesses. 21 During her interview with the investigating police officers KHF denied kicking the deceased and it was submitted on her behalf that the denial could be accepted as factual because on the whole she was obviously doing her best to give an accurate account of the events as she recalled them. I accept the submission that KHF was doing her best to tell the truth about what happened and why it happened. Clearly enough, her account of the reason for the attack on the deceased is attributable solely to the psychotic state in which she found herself at the time of the attack and at the time of her interview. Insofar as there is a conflict between her evidence and that of Mr Camarsh, however, I accept the evidence of Mr Camarsh. His account of what he saw is compelling. In his statement he is careful to distinguish between what he saw clearly and what he was not able to see clearly. Apart from his account of all three accused's kicking the deceased, there is no marked dissimilarity between his account and that of KHF. He was not cross-examined. I think that his account is a truthful and reliable one. 22 It is apparent from my summary of the facts that KHF was in close proximity to GFF and the deceased when the latter was attacked. There is no evidence to suggest that her senses of sight or hearing were impaired. The noise of GJF's kicking open the neighbour's front door and the deceased's screams of terror were enough to engage the attention of neighbours and passers-by. Anybody present would have seen GJF brandishing knives, chasing the deceased and tackling her. 23 Later on KHF said to Dr Westmore - I don't know who stabbed her, I guarantee it wasn't me. My dad said he did it and I blacked out. I was in shock. I didn't know what the hell was going on. My dad asked me to grab her legs so I did for about three seconds and I stopped because I didn't know what was happening. 24 I do not think that this was a wholly accurate statement. KHF may not have understood all that was happening but she did understand that there was a concerted attack on the quarry with no less an intent than to kill. 25 I am satisfied beyond reasonable doubt that before she and GFF ran towards the deceased, KHF had formed the belief that her mother or her mother's spirit had cut up and drunk the blood of her brother, tried to kill her and had drunk babies' blood. She believed that if the object of the chase were not killed it would haunt the three of them. She heard GFF publicly justify the death of the deceased. She knew from what she had seen and heard GJF doing that he intended to kill her, for what he did shows nothing less than that intent. Knowing and believing these things, KHF ran with GFF towards GJF and the deceased, dragged her, kicked her, punched her and held her legs as the attack was carried out. In my view everything she did was done with the intent that the deceased should die. Her answer, "Well, if we let it go it would haunt us" shows that the three accused were of the same mind. I am satisfied beyond reasonable doubt that her intent to kill was formed at the latest when she ran with GFF towards the deceased and began to lay hands on her. 26 There may be some doubt whether KHF believed that the attack was being made on a spirit that looked like her mother or on her mother. She sometimes referred to the object of the attack as "it" and sometimes as "she". Answer 237 suggests that she may have believed that it was her mother, though much else of what she said is consistent with a belief that it was a demon who merely looked like her mother. Whatever the truth of the matter, however, KHF obviously desired the death of the object of the attack. She equally obviously knew that the other accused were attacking that object with the intention of killing it. That, I think, is why she prayed and held her mother's legs. 27 Accordingly, the Crown has satisfied me beyond reasonable doubt that KHF must be found guilty of murder as a principal unless she establishes that she is not guilty on the ground of mental illness. 28 The defence of mental illness must be proved by each accused on the balance of probabilities. 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 or she was doing or that he or she did not know that to do it 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. If through disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure it may be said that he or she could not know that doing the act 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 is done is wrong. 29 GFF is the father of the other accused and the history of his activities and the state of his mental health is in some respects relevant to their defence cases. It is therefore convenient to consider his case first. This recitation of facts is taken for the most part from reports written by Dr Nielssen, who saw GFF on behalf of the defence, and Dr Westmore, who saw him on behalf of the Crown. Both are psychiatrists and both had the benefit of reading the documents on which the Crown proposed to make out its case, including the transcript of an interview between GFF and investigating police officers. 30 Each psychiatrist has reported on the history told to him by GFF. The accounts do not correspond in all respects. He was born on 15 January 1962. He had a troubled childhood and was abused by his father, who may himself have suffered from a psychotic illness. When GFF was young he spent periods of residence in church-run institutions and said that he was sexually interfered with there. He later lived with his father until the age of thirteen years, when he broke into a school, intending to steal a bow and arrow with which to kill his father. He was placed in a boys' home for a few weeks and made a ward of the State. He may have seen his first psychiatrist at the age of fifteen years but does not remember why. At about nineteen to twenty-one years of age he saw a psychiatrist several times for severe depression. In 1984 or 1985 he underwent a religious conversion, after which he attended a number of churches, following charismatic leaders. He studied and obtained qualifications and employment in social work. For about ten years before the death of the deceased he experienced psychotic symptoms. He believed that he heard the voice of God. He saw people he described as "church counsellors", but not apparently for psychiatric treatment. He hurt his back in an accident at work and became dependent on codeine which he took. He may also have begun to consume cannabis at that time or an earlier time. During the 1990s he recovered an award of damages and resumed smoking cannabis. In about 1997 he saw Dr Segal, a psychiatrist in private practice in Penrith, following marital disharmony and violence. He told both consulting psychiatrists that there was an incident at a church picnic in 2000 in which a man pulled a knife on KHF. This incident affected him badly, he said, because his father had done the same thing to him. Whether or not the incident actually happened, he became obsessed about it. He repeatedly referred to it during his interviews with the psychiatrists and with the police officers. 31 About one year before the death of the deceased he was sent to Pialla, the psychiatric unit at Nepean Hospital, after having been arrested and charged with an assault on the deceased. An apprehended violence order was issued. He was prescribed psychiatric drugs and was discharged into the care of Dr Segal. Dr Segal prescribed anti-depressant and anti-psychotic medication. GFF stopped taking the medicine. He and GJF were smoking substantial quantities of cannabis. Some two weeks before the death of the deceased he thought that he was Jesus. Police took him again to Pialla, but after spending a little time there he discharged himself. The Court was informed that that was against advice. He said that he and GJF thereafter prayed a lot and spoke to the angels. They went to see KHF and the deceased. He said he thought that KHF was going to marry Jesus and that there were only seven people left within a two-thousand kilometre radius. He said that he believed that the deceased was a witch and that she drank blood. He and GJF prayed right through the night preceding the death of the deceased. He said that GJF had told him that the deceased had sexually assaulted him. 32 Dr Nielssen has expressed the opinion that GJF had acute psychotic symptoms for at least a year before the offence but probably had a milder form of his illness for as long as twenty years beforehand. He thought that the acute episode which led to the death of the deceased was probably brought on by heavy cannabis use in the year before the offence and the cessation of treatment with anti-psychotic medication several weeks earlier. He has diagnosed chronic schizophrenia and cannabis dependence syndrome. 33 Dr Westmore thought that two weeks before the incident GFF was acutely disturbed with delusional beliefs about Jesus and possibly experiencing auditory hallucinations. The delusional beliefs involved KHF, the deceased and GJF. Dr Westmore noted the regular and heavy use of cannabis in the months leading up to the onset of GFF's disturbed mental state. He made differential diagnoses of schizophrenic illness, drug induced psychosis or mood disorder with psychotic features. He thought that GFF also qualified for the diagnosis of substance abuse (cannabis). 34 Both psychiatrists are of the opinion that GFF suffered from an acute psychotic episode, a disease of the mind. They agree that he was aware of the nature and quality of the things he did but that his illness deprived him of the knowledge that what he was doing was morally wrong. Moreover, the severity of his mental illness left him unable to reason with any degree of calmness about his actions. 35 The Court has been assisted by counsel of long experience on the part of the Crown and all accused. Counsel for GFF and the Crown join in the submission that the accused has discharged the burden of proving that he is not guilty on the ground of mental illness. I accept that submission. I shall return a formal verdict and make consequential orders at the conclusion of this judgment. 36 GJF has been seen by Dr Allnutt, a psychiatrist, and Dr Westmore. He told them that since the age of six or seven he had memories of sexual experiences with his mother but that he did not realise until he attained the age of thirteen or fourteen years that they constituted sexual abuse. As a consequence he felt angry but reluctant to tell anyone because he did not think that anyone would believe him. At thirteen years of age he was diagnosed to have Attention Deficit Hyperactive Disorder. 37 At the age of sixteen he began to feel depressed and had suicidal thoughts. He tried to slit his wrists. He was unable to concentrate on anything and developed an interest in witchcraft in order to cope. When he was in Year 8 he heard voices calling his name but at that stage he had the insight to consider them part of his imagination. He found that smoking cannabis calmed him down and took to regular consumption of the drug, increasing his rate of use as time went by. Voices began to be heard. They were murmurs at first but they began to have conversations with him, discussing different things. Some were complimentary and others not. Sometimes they commanded him to do things and sometimes he obeyed. Sometimes they were so intense that he was unable to concentrate. One day when he was sixteen he came to realise that he must be a supernatural being. The explanation was the voices he was hearing. He knew that he had powers but not what they were. 38 Some few months later he was admitted for the first time to a psychiatric hospital, and became an inpatient for three months. That was eighteen months or so before the deceased died. He thought that demons were talking to him and that there were Satanists around him all the time. 39 When he left hospital he stopped taking his medicine because it made him feel different. In September 2000 he began smoking cannabis with his father. The relationship between his father and the deceased was deteriorating because, among other things, she would react angrily to their use of the drug. There were frequent arguments between the two of them. When they separated GJF went to live with his father and came more heavily under his influence. 40 In November 2000 his father lost his job and increased his use of cannabis. GJF was suffering depression, mood swings and aggressive outbursts. He was sleeping poorly and had a poor appetite and ideas of suicide. On 11 December 2000 he was admitted as a voluntary inpatient to the psychiatric ward of the Nepean Hospital. The diagnosis was major depressed episode and borderline anti-social and narcissistic personality traits. He was discharged with a prescription for an anti-depressant and was expected to engage in drug and alcohol rehabilitation. 41 He was readmitted on 16 December, again as a voluntary patient, and remained in hospital until 24 December. Dysthymic disorder was diagnosed. He had homicidal ideation and feelings of aggression towards his mother. 42 He went to live with his mother after his second discharge but was asked to leave home and stayed at premises in the Blue Mountains. The voices started to get stronger. It is not clear whether he was taking his medicine or not. 43 He had met a girl during his second admission to hospital and had arranged a meeting with her. When she did not turn up he was so upset that he voluntarily admitted himself to hospital again on New Year's Eve 2000. He was distractible and agitated. He was kept in hospital for three weeks and the diagnosis was adjustment disorder with depressed mood. Again he had suicidal ideas. 44 He found a place to live with a friend in Katoomba. He attended TAFE, undertaking Year 10 studies. He was using cannabis. He was trying to "find the answer" and continued to hear voices. He still felt that he was in some way special. His father began to speak about a conspiracy, a master plan. He moved in with GJF and his friend and after a few months the friend left. His father would not leave him alone. He would come into his room, speak to him when he was on the toilet, wake him up at night. His father yelled and screamed constantly at him. On an occasion he beat him because he was not Christian enough. He spoke continually on religious themes. GJF was unable to leave. His father spoke about God, Jesus, angels, demons, casting them out and being an inquisitor and witch hunter. He and his father would spend time killing angels with their minds and speaking with angels. His father told him how the deceased had ruined his life and prayed that God would kill her. She was evil, he said, a Satanist. GJF came to believe everything his father was saying. 45 About two weeks before the death of the deceased GFF was admitted to hospital. GJF visited him there and spent most days with him. The two would continue their discussions about the things I have summarised. When GJF was alone he continued to hear the voices of angels and was commanded by them on one occasion to throw out his books as Satanistic objects. When his father came out of hospital the two of them took a train and went to the deceased's house at Glossodia. 46 After the argument between his father and mother following which his mother went to work, GJF and his father stayed at the house. His father told him that his mother had been killed in a car accident. God had told him. GJF believed him. The voices he was hearing confirmed it. He concluded that God and his father were telling him the same thing, that his mother had died. He was awake for most of the night. He told his father that his mother had sexually abused him. They found pewter chalices under the sink and his father told him that his mother had used them to drink the blood of children that she had killed at the hospital. GJF began to smash up the house. 47 He saw his mother returning home from work. Believing that she was dead he took what he saw to be an evil spirit. He heard his father say, "Get her". He thought that people had left them, that there were no other people left on Earth, that his father was God, that he was Jesus and that KHF was the Holy Spirit. He saw his mother run away, seized two knives and followed her. The final events of her life ensued. 48 GJF was still floridly psychotic when interviewed by police officers. He told them that the deceased was a baby killer, a baby eater and a blood drinker who sacrificed humans and that she had cut him in his sleep. He said that he was employed as a witch and demon hunter by God and the Lord Jesus Christ. He told police about his belief in the use by his mother of the chalices he said that they had found under the sink. 49 Dr Westmore diagnosed alcohol and cannabis abuse. He thought that GJF had a paranoid illness, provisionally diagnosed as paranoid schizophrenic illness but differentially shared delusional disorder or drug induced psychosis. 50 Dr Allnutt also considered the rare condition of folie à deux, or shared delusional disorder. In such a disorder there are two or more individuals at least one of whom is mentally unwell. They have a close relationship and live in relative social isolation. The condition occurs most commonly between family members. It is characterised by the adoption of the mentally ill person's delusional beliefs. The unwell person, the "host", is generally an influential figure. Dr Allnutt thought that although strictly such a diagnosis could not be made if both individuals suffered from a mental illness, as is the case here, that was the best way of understanding the case. When both members are mentally unwell the condition is sometimes referred to as folie simultanée. 51 Dr Allnutt was satisfied that GJF came eventually to adopt GFF's delusional view about the deceased. 52 Both psychiatrists are of the view that at the relevant time GJF was suffering from a defect of reason from disease of the mind. Dr Allnutt thinks that the disease compromised his ability to understand the nature and quality of the act which he carried out causing death. He is also of the opinion that as a result of the disease of the mind GJF did not know that what he was doing was wrong. 53 Dr Westmore is of the opinion that GJF's acute mental illness constituted a disease of the mind which totally deprived him of the capacity to know that he ought not to do the act causing death. He thinks it likely that he was so psychotic that he was unable to determine in his own mind that he should not do the act either from a legal or a moral perspective. 54 Counsel for the Crown and GJF jointly submit that GJF has discharged the burden of proving that he was not guilty on the ground of mental illness. I accept that submission. 55 KHF first saw a psychiatrist at the age of thirteen or fourteen and was treated for depression. However, she was not admitted to hospital and had no thoughts of suicide. She was prescribed anti-depressant medication. Between then and the time of the deceased's death she was not receiving any psychiatric advice or treatment and did not take alcohol or any illegal drug. When young she was a slow learner and went to a special class, but she has had no difficulty keeping up with others at school since Year 8. She had a loving relationship with her mother, the deceased. Her relationship with GFF, her father, deteriorated after he began using cannabis. She lived with her mother after the separation and saw her father about once a month. When GFF and GJF came to the house on the evening before the death of the deceased she accompanied them to obtain food to bring home for dinner. The deceased had left for work in the meantime. They told her that God had told them that the deceased was going to die in a car crash. She thought that really strange. She spent the rest of the night in their company. They reckoned that demons and angels were talking through GJF. She noticed that they were smashing up the house because they reckoned that things were Satanic. She told Dr Westmore that her brother and her father "just filled my head with crap pretty much", that she was confused and did not know at the time that it was just a lie. They told her that the deceased was a demon and evil and she said that she believed it at the time. When Dr Westmore asked her why what her father and brother told her on the night before the death of the deceased had such an influence on her she said that she did not know what to believe. They were saying "this rubbish", that her mother was evil. In answer to a question she said that they spoke for a couple of hours about demons and other issues. She said that she did believe that her mother had been killed in an accident. She said that she had probably joined in smashing the house. 56 There were these questions and answers in her interview with the police - Q197 O.K. Did you sleep last night? A No. I didn't. Q198 You stayed awake all night? A We were fighting demons. Q199 Right. A Demons were growing in my brother. Q200 Right. A You know. Mum put heaps of curses on us and I, I don't know, but we were all fighting all these curses so we can be, break free. 57 Dr Westmore found no evidence of psychiatric disturbance at the time of his interview with KHF. He thought that she was not depressed and did not appear to have hallucinations or delusions. He thought that the history suggested no acute mental state disturbance prior to the visit of GFF and GJF to the house on the evening before the death of the deceased, although there was a history of depression. He thought that during the hours leading up to the death KHF appeared to have been exposed to several hours of psychotic behaviour and thoughts. He thought it probable that KHF developed an acute but transient psychotic state in response to the intense influence of GFF and GJF. He diagnosed differentially a shared delusional disorder or a brief reactive psychosis. Dr Westmore believes that at the time of these events KHF had a mental illness, which was a disease of the mind which would have totally deprived her of the capacity to know that she ought not to act as she did. He thought that her vulnerability to further psychotic episodes needed further assessment. 58 In the opinion of Dr Allnutt KHF was at fifteen years of age more vulnerable than an adult to suggestion and external influence. He noted that she was brought up in a religious family and thus prone to be more accepting of religious interpretations than those not brought up in such an environment. She saw GFF as an authoritative figure. She had been brought up to respect, trust and believe in those older than herself, especially those in her family. She believed that her father and brother had a special connection with God. However, Dr Allnutt believed that before the events of the night KHF probably maintained a capacity for insight. He thought that the circumstances of the night were extraordinary for her. The activities of GFF and GJF were ritualistic, religious and characterised by high emotion. Those circumstances would have overwhelmed KHF. During that period of time she was exposed to further unusual beliefs about her mother and adopted the belief that her mother was evil, a devil worshipper, had died in a car accident and had abused her son and other children. In the view of Dr Allnutt the circumstances would have made it difficult for her to maintain her capacity for rational thought about either the information she had been provided with or the situation she found herself in. He thought that her capacity for insight would have been significantly impaired and that she came to hold those beliefs to a delusional degree. Thus she suffered delusional beliefs about her mother. He thought that her description of her experiences and feelings commencing that night and continuing for approximately two days afterwards was consistent with depersonalisation, a feeling of detachment or estrangement from oneself in which the individual feels as though he or she is living in a dream or experiences an external observation of his or her own actions. Depersonalisation can occur in association with psychosis or at times of significant stress. He thought that at the time KHF was experiencing a combination of the symptoms of depersonalisation and delusional beliefs about her mother. 59 Dr Allnutt is of the opinion that, assuming that GFF and GJF were mentally unwell and suffering delusions, the most appropriate diagnosis would be shared delusional disorder. Thus KHF came to share the delusional beliefs of her father and brother. Like Dr Westmore, Dr Allnutt thinks that a further diagnostic consideration is transient psychosis, derived from an underlying vulnerability to psychosis, given the history of mental illness in the family triggered by the stress of the events of the night. 60 Dr Allnutt thinks that KHF was possibly compromised in her capacity to understand the nature and quality of her actions but that in any case she lacked the capacity to contemplate the wrongfulness of her actions with a moderate degree of sense, composure or calmness. 61 In accordance with these opinions defence counsel and the Crown have submitted that the proper verdict is that KHF be found not guilty on the ground of mental illness. I accept those submissions. 62 Each of the accused has been held in custody since arrest. GFF has been kept in a secure hospital and treated. He has ceased to use cannabis. Dr Westmore noted in July that his mental state was improving and that he was not suffering from any major depressive illness, though he might still have delusional thoughts about the deceased and her behaviour towards GJF. Dr Westmore observed that he will need extended psychiatric support and supervision. 63 Dr Nielssen noted in August that there was no recurrence of the prominent symptoms of his acute illness or of any auditory hallucinations. He noted that his depressed mood had responded only partly to medication and that he was still disturbed by intrusive images of stabbing the deceased and the events of the previous night. He still believed that the deceased had sexually molested GJF. There is no way of knowing whether such a thing ever happened, but Dr Allnutt thinks that GFF's belief about the matter is not psychotic. 64 Dr Westmore noted in May 2002 that GJF continued to report a range of symptoms of a psychotic quality, including auditory hallucinations and religious and paranoid delusional beliefs. He had ceased to use cannabis. He continued to have thoughts of self harm and was being kept in a special unit at Long Bay Prison. He has been kept separate from GFF, an essential strategy in view of the diagnosis of shared delusional disorder. Dr Westmore thought it too early to express a view about his long-term prognosis but noted that he would have to remain under psychiatric supervision for an extended period to enable a definitive diagnosis to be made and to enable the clarification of any question of his long-term dangerousness. 65 Dr Allnutt noted a deterioration and consequent recovery in the mental state of GJF between April and August 2002. During June and July he experienced a re-emergence of auditory hallucinations, persecutory delusions, visual hallucinations, ideas of external control, religious delusions with some grandiose thoughts and restricted affect. With changes in his medication, he had more recently shown a response and significant improvement. Under his current regime he continues to present mild symptoms of psychosis in the form of auditory hallucinations at night and some mild persecutory delusions and grandiose delusions with religious themes. 66 Dr Westmore thinks that KHF is no longer suffering from any psychiatric disturbance. She is not depressed and does not appear to experience hallucinations or delusions. He thinks it likely that the separation from her co-accused has resulted in a resolution of her psychosis. He considers that her vulnerability to further psychotic episodes needs further assessment. 67 Dr Allnutt agrees that KHF does not now manifest symptoms of any mental illness. He thinks that her psychotic beliefs were active just prior to and during the period of the death of the deceased and for approximately three months afterwards but that they rapidly dissipated after KHF was told by her father that his beliefs originated from his mental illness. He thought that she fell into a low risk group for future violence even if she should decompensate again. He is of the opinion that she does not need to be kept in a psychiatric hospital. 68 It is necessary to say a number of other things. The events giving rise to the charges have been distressing to a great number of people. The Court does not know precisely who has been affected in this way. Certainly those who made statements must have been badly affected. The sympathy of the Court goes out to any relatives and any other people affected. 69 The statute which governs cases like this requires me to make an order that each accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that each 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. 70 The Mental Health Review Tribunal is a body of professional experts. Within fourteen days after these verdicts the Tribunal will commence a review of the case of each 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 or her release, it may make a recommendation as to release. If it makes such a recommendation that will be considered by the Department of Health which will in turn 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 or her 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 each accused. 71 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 or her 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 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. 72 If any 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 the 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 or her and a breach of any condition will lead to apprehension and detention once again. 73 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 would be 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. 74 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he or she is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his or her release should become unconditional. If that time expires, then release becomes unconditional and he or she ceases to be a forensic patient. However, as I have explained, no accused will ever be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his or her safety and the safety of any member of the public will not thereby be seriously endangered. 75 I find that GFF is not guilty of the murder of the deceased FEF by reason of mental illness. I direct that he be detained in the psychiatric ward at Long Bay Correctional Centre Hospital or at such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. 76 I find that the accused GJF is not guilty of the murder of FEF by reason of mental illness. I order that he be detained in the psychiatric ward at Long Bay Correctional Centre Hospital or at such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. 77 I find that the accused KHF is not guilty of the murder of FEF by reason of mental illness. I order that she be detained at the Yasmar Juvenile Justice Centre or at such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. ********** Last Modified: 08/23/2002 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.