New South Wales Supreme Court CITATION : REGINA v. SORRELL [2003] NSWSC 30 HEARING DATE(S) : Friday 7 February 2003 JUDGMENT DATE : 7 February 2003 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : The accused is not guilty by reason of mental illness and is ordered to be detained in a place of strict security. CATCHWORDS : Criminal law - murder - judge only trial - mental illness - special verdict - order for detention Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health Criminal Procedure Act 1990 Crimes Act 1900 Mental Health Act 1990 Fleming (1998) 158 ALR 379 CASES CITED : Zecevic (1987) 162 CLR 645 M'Naghten (1843) 8 ER 718 Porter (1936) 55 CLR 182 PARTIES : REGINA v. SORRELL, Michael Peter FILE NUMBER(S) : SC No. 70100 of 2002 COUNSEL : Crown: T. Hoyle, QC. Off: D. Humphreys SOLICITORS : Crown: S.E. O'Connor Off: D. Humphreys IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. FRIDAY 7 FEBRUARY 2002 No. 70100 of 2002 REGINA v. MICHAEL PETER SORRELL JUDGMENT 1 HIS HONOUR: The accused, Michael Peter Sorrell, was arraigned before me on an indictment charging that, on 3 June 2002 at Smithfield in the State of New South Wales, he did murder Michael Furlong. To that indictment and to that charge he pleaded not guilty. On the occasion of that arraignment today I was informed by Mr. Humphreys, appearing for the accused, that no issue arose in respect of that charge except one, that is to say, that at the time of the act causing the death charged, the accused suffered from mental illness such as not to be responsible in law for his actions in killing the deceased as he did. I was informed by Mr. Humphreys and that was confirmed by Mr. Sorrell in the dock that all other matters necessary to support the charge were admitted. 2 An election dated 6 December 2002, under s.16 of the Criminal Procedure Act 1986, consented to by the Director of Public Prosecutions on 13 December 2002 for trial by judge alone, had been made. I was satisfied of the matters to which s.16 draws my attention. It is appropriate in the circumstances that the trial be a trial by judge alone. 3 On such a trial I may make any finding that could have been made on the question of the guilt of the accused person by a jury. Any such finding has, for all purposes, the same effect as the verdict of a jury. My judgment in any such case must include the principles of law to be applied and the findings of fact upon which I rely. I am to give myself any warning necessary to be given to a jury in any such case as though I were a jury. These matters are required by the application of s.17 of the Act and the decision of the High Court in Fleming v. The Queen (1998) 158 ALR 379. 4 In particular in this case it is clear from the totality of the material with which I have been provided, and it is conceded by the admission made by Mr. Sorrell and through Mr. Humphreys that, at the time of causing the death charged, the accused intended to kill the deceased. I am satisfied from the material to which I will later refer that, absent the question of mental illness arising as it does, all the elements of the crime of murder have been established beyond reasonable doubt. 5 I am further satisfied that no such defence, as might need to be established by the accused and which might make the crime manslaughter rather than murder, is to be found established in the materials. Thus, there is no area of provocation or any such matter as might warrant reduction in the culpability of the crime. 6 On the hearing of the matter, by consent, there was tendered to me a bundle of documents which were marked Exhibit B. Those documents included the Crown case statement, the accused's antecedents, statements of various witnesses as to the commission of the offence, the accused's arrest, and the accused's prior circumstances including statements by members of his family as to his history of mental illness and confinement in various institutions for that illness. 7 The material includes reference to the accused having been dealt with previously for serious crimes and having been dealt with in circumstances which disclose that underlying that criminality lay the condition of paranoid schizophrenia to which the medical reports, which were included in addition to the other material in the material provided to me, unanimously concluded affected him. 8 Those reports included the reports of Dr. Olav Neilssen, Dr. Rosalie Wilcox and Dr. Bruce Westmore, all three of whom are well known and respected psychiatrists practicing in the area of forensic psychiatry whose opinions are customarily received in this court. 9 The Crown Prosecutor confirmed on behalf of the Director of Public Prosecutions to me that the Crown had received all such opportunity as it might wish to make the fullest examination of the circumstances and of the accused such as to satisfy itself by utilising the service of experts and psychiatrists, of the genuineness of the condition to which the three psychiatric reports relate. I shall return to the contents of those reports. 10 Before turning to the facts of the matter, however, there is something further I should say generally. From time to time cases such as this come before this court and before the other Supreme Courts of the States of Australia. They are immensely tragic, particularly for the family and loved ones of those who have been deprived of the society of the deceased. They are immensely tragic also for the community as a whole. It is particularly tragic that we have been deprived of one of our fellows by reason that another member of the community has suffered from an illness such as this; an illness as deprives in law that person of the understanding we regard in a civilised society as necessary before a person becomes amenable to punishment for their conduct. 11 However, whilst as a civilised society we do not punish for their conduct those who suffer from this condition, what we do do is take measures such as to ensure the detention of such a person in confinement in circumstances in which they will never again be admitted to liberty unless the appropriate legal authorities reach the conclusion that Parliament has prescribed would be necessary before such a step should be taken. 12 On a murder trial such as this it is necessary for me, in complying with my legal duty under the Criminal Procedure Act as I have referred to, to relive what happened in the appallingly tragic circumstances that existed here to the deceased and to relive the appalling conduct of the accused when he killed the deceased. But it is important that all, including the accused, are aware that the court is not insensitive to the tragedy that has befallen the deceased and the accused and those that are left and which has affected and will affect the accused for the rest of his life just as this tragedy will continue to affect the members of the family and the loved ones of the deceased for the rest of their lives. 13 I commence this judgment with those words so that it will be understood that the recognition by both the prosecution and the defence that the accused did perform the act causing the death charged and did have, at the time of that act, the mental condition such as would otherwise make him liable for the offence of murder, should not distract those here present and those who may report these remarks from the realisation that, after proper investigation by all parties and proper opportunity for investigation, it became clear that the accused was suffering from that condition which makes him amenable in the law to confinement under the provisions of the Mental Health Criminal Procedure Act as I have said to the extent that I have already referred to. 14 My examination of the materials and of the medical reports leads me to find that the conclusion that the accused suffered at the time of the commission of these acts from mental illness, such as require the application of ss.38 and 39 of the Mental Health Criminal Procedure Act, was inevitable. 15 The short facts of the matter are that, at about 4pm on 3 June 2002, the victim, Michael Furlong, and his brother Glen, went to R.S. Components, an electrical retailer, at Smithfield, to purchase electrical components. The accused was then present. He left the store shortly after. The victim and his brother left the store and went to another electrical store in Smithfield. They were followed by the accused. When they returned to their vehicle from having entered the store, the accused approached them and, after speaking to the victim, killed the victim with a knife. He chased the victim's brother. 16 At about 3.20 am the following day he was apprehended asleep in his vehicle with a large hunting knife, presumably the knife with which the offence was committed, present with him. He was in possession of the victim's wallet which enabled the police to link him to the offence. 17 Dr. Neilssen examined the accused. He concluded that the accused had the defence of mental illness open to him. Dr. Neilssen expressed his views in a report dated 15 October 2002. He referred to interviews with the accused. He referred to a belief that the Federal Police were persecuting the accused using secret technology and that a drug had been administered to the accused using his toothpaste such as to enable vibrations of his larynx to be detected and recorded at a distance, that his private thoughts thereby became able to be discussed and that he was to be killed by the Australian Federal Police. 18 The accused's psychiatric history shows that he had been detained even whilst having been the subject of a sentence of imprisonment in psychiatric custody in Western Australia in Greylands Hospital. He had then been treated by antipsychotic medication. He had then been diagnosed as suffering from paranoid schizophrenia. Later, he had been admitted to Broadmoor Hospital for the criminally insane in the United Kingdom until he was deported to Australia. He had also been admitted to Townsville Hospital after a serious suicide attempt. He has been treated with anti-psychotic medication whilst in custody in New South Wales and it has only been as a result of the effects of that medication, it appears, that he has manifested normal behaviour. 19 The diagnosis of paranoid schizophrenia, which has been applied to the accused by psychiatrists since at least 1994, refers to a condition of mind in which the accused suffers from delusional beliefs which render him unable to perceive the true nature of reality and such as to permeate his thinking and to cause him to act in ways which are unacceptable. 20 Dr. Neilssen refers to discharge summaries and the opinions of various psychiatrists over the years, all of which are unanimous on the topic of paranoid schizophrenia being suffered by the accused. 21 Even in Greylands Hospital in 1994 he had apparently manifested a bizarre delusional belief that he was under surveillance, had been drugged by a secret government unit using technology that enabled them then to read his thoughts by vibrations in his larynx and subsequently manifested a complex delusional system involving the CIA, FBI, Justice Department and medical staff. 22 Dr. Neilssen concluded that the accused suffers from chronic schizophrenia on the basis of his abnormal affect, the presence of characteristic disorder in the form of his thoughts and his chronic bizarre delusional beliefs. Dr. Neilssen concluded that, at the time of the act charged, Mr. Sorrell was suffering from a defect of reason in the form of a delusional belief and was not aware that his actions were morally wrong; that he was unable to reason with any degree of composure about his actions and that subsequently his partial response to treatment has rendered him sufficiently sane as to be able to participate appropriately in his trial. (That last matter being the case, it is appropriate that I receive the admissions made by him and on his behalf by Mr. Humphreys.) 23 Dr. Neilssen expresses the view that Mr. Sorrell has a history of very alarming behaviour and requires indefinite treatment with antipsychotic medication and careful supervision of the medical health service. 24 Dr. Wilcox shares Dr. Neilssen's view as to the accused's diagnosis. She concludes that Mr. Sorrell fulfils the criteria for the M'Naghten Rules. At the time of the alleged offence, she says, "He was suffering from a disease of the mind, namely, paranoid schizophrenia and as a result of this disease of the mind he had a defect of reason, that he knew what he was doing when he stabbed the deceased but did not have the capacity to reason with sense and composure about the wrongfulness of his act". Both doctors have referred to his auditory hallucinations. 25 Dr. Wilcox refers to a decrease in the frequency of bizarre beliefs and the intensity of those beliefs, and the auditory hallucinations under medication, but she concludes he is going to need very close supervision on an indefinite basis and refers to the necessity for supervision of the Mental Health Review Tribunal. 26 Dr. Bruce Westmore, who examined the accused on behalf of the Crown, had access not only to the prior discharge summaries and prison records, but also to the whole of the Crown brief and the opinions of Dr. Neilssen and Dr. Wilcox. He referred in detail to the prior history of the accused. 27 In an extensive and detailed report, Dr Westmore concludes:- "Mr Sorrell suffers from a chronic paranoid psychiatric illness. ... His illness is characterised by an extensive delusional belief system where he is the victim of persecution. The persecution he believes arises from the Federal Police and the CIA. He has a history of auditory hallucinations which is characteristic and indeed diagnostic of a primary process psychiatric illness. The offence occurred in the context of his mental illness. He was delusionary driven. He developed delusional beliefs about the victim. He decided to take action against the victim. He wanted to give the Federal Police the message that they should leave him alone. Mr. Sorrell suffers from a disease of the mind. He has a chronic paranoid psychiatric illness which would have totally deprived him of his capacity to know that he ought not to do the act and that the act was wrong. It is probable in my view that Mr. Sorrell, because of his mental illness, gave little consideration, if any, to the legal wrongness of his behaviour. He would not have understood the moral wrongness of his behaviour. He would not have been able, again due to his mental illness, to consider his behaviour with a moderate degree of calmness and rationality. ... although still suffering from a mental illness and having impaired insight into his mental illness, he is, in my opinion, fit to be tried." 28 Dr. Westmore refers to the effect of anti-psychotic drugs in diminishing the intensity of that illness. He concludes:- "Obviously this young man's prognosis, both forensically and psychiatrically, needs to be considered in a very very cautious and guarded fashion. Should he become a forensic patient, then any decision to remove him from the support and supervision provided by the mental health legislation should only be done after much consideration and consultation." 29 In the reports there are references to a belief on the part of the accused that he was being persecuted by the Federal Police, that the victim might have been a Federal policeman and that he determined to take action against the victim by way of some response to that belief. Although in the reports there is made mention from time to time of the term self-defence, the matters raised in the reports do not in any respect go to show the imminence of any such threat, either actually or in the deluded belief of the accused, such as might have forwarded any foundation, even if a delusional belief might support it for the defence of self-defence in this case having regard to the principles in the Queen v. Zecevic (1987) CLR 162 645 and the provisions of s.418 of the Crimes Act 1900. I am satisfied beyond reasonable doubt that there is no such defence available to the accused. 30 It remains necessary for me then to turn to the provisions of the Mental Health Criminal Procedure Act 1990 and, in particular, ss. 37, 38 and 39. Section 37 requires me, in the event that this were a jury trial, to explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings. 31 I must include in my explanation a reference to the existence and composition of the Mental Health Tribunal constituted under the Mental Health Act 1990, which has the functions under that Act with respect to forensic patients within the meaning of that Act and include a reference to its power to 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 that person's release. 32 Section 38 provides that, at a trial such as this, if it is given in evidence that, at the time of the acts which would otherwise constitute the offence, the person was mentally ill so as not to be responsible according to law for his or her actions, then the special verdict that the person is not guilty by reason of mental illness should be returned. 33 At law a person is so mentally ill as not to be responsible according to law for their actions if at the time of those actions it is clearly proved that the person was labouring under such a defect of reason arising from disease of the mind as not to know the quality or nature of the act that he or she was doing or, if he or she did know it, that he or she did not know what he was doing was wrong. That test which has been applied since the Queen v. M'Naghten (1843) 8 ER 718, was interpreted by Sir Owen Dixon in Regina v. Porter (1936) 55 CLR 182, at 188, as requiring that such a person labouring under such a defect from such a disease would be not mentally responsible in law for their acts if they were unable to reason with a reasonable degree of sense and composure concerning the wrongfulness of the acts. 34 Section 39 requires that, in the event that the special verdict is returned, the court must order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law. In this case the Crown submits that the appropriate place is the psychiatric ward of the hospital within the correctional services system at the Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until the accused is released by due process of law. 35 In the conduct of a trial of this kind, I am bound to act in accordance with the Act and the law and the verdict must be returned in accordance with the law and the facts as I must find them on the evidence. 36 Should an order be made, the accused would be detained in a psychiatric institution appropriate in the strictness of its regime to his condition. He would be detained there until his release and, in due course, he would come under the supervision of the Mental Health Review Tribunal which consists of a president who or whose deputy must be a lawyer. The tribunal would be constituted by two other persons, one of whom must be a psychiatrist; the third of whom is a person who has suitable qualifications or experience for the task. It would be the function of that tribunal to review the accused's case as soon as practicable and make a recommendation to the Minister for Health as to the accused's continued detention, care or treatment. Only if satisfied that the safety of the accused or that of any member of the public would not be seriously endangered by the accused's release by the tribunal would they make a recommendation for that release. If there was such a recommendation, it would then go to the Minister for Health for consideration. That Minister must then notify the Attorney-General and furnish a copy of that notification to the Director of Public Prosecutions. In the event of a recommendation of his release, 30 days after the notification, an order may be made for the accused's release providing that the Minister for Police and Emergency Services is informed of the potential release, otherwise the person continues to be detained and the tribunal continues the supervision of the detention, care or treatment of that person in a place and manner specified by the tribunal. The tribunal must at least once every six months again review the case and make recommendations concerning the accused's continued detention, care and treatment in hospital, prison or other place and, as for his release, they must review the case and make a recommendation to the Minister for Health if requested to do by the Minister, the Attorney-General, The Minister for Corrective Services, the Chief Health Officer or a medical superintendent of the hospital. No release may be recommended unless the tribunal is satisfied as to the safety of the accused or any member of the public. Were there to be a release ordered, then it may be on conditions or unconditionally. 37 In the event of any breach of conditions or if any mental condition of the accused deteriorates so he may be a danger, a future order may be made for his apprehension and detention. Conditions as necessary would continue whilst the accused is detained. It is only where the relevant requirements of the legislation and the tribunal have been met that a person may be released or, having been released, may be no longer subject to the restrictions that had been placed on that person concerning release. 38 These provisions have application to a person in respect of whom the special verdict has been found for the rest of their life. 39 Having regard to the evidence in this case, and the provisions of the Mental Health Criminal Procedure Act, I conclude that the defence of mental illness referred to in the Act is made out and reach the view that the appropriate course is for me to find the accused not guilty by reason of mental illness and to pass the special verdict required by the Mental Health Criminal Procedure Act. 40 I therefore make the order consequent upon that special verdict that the accused is to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal unless or until it is ordered that he be released by due process of law. Indecipherable outcry ensued from the public gallery.) 41 HIS HONOUR: There will be no noise in court. This court is still sitting. It is entirely understandable and the court understands the emotion that all of this inevitably generates in those who are left. In my judgment I expressed to you the views that all of us would have by way of sympathy and condolences, but I cannot countenance there being any demonstration in or about the court concerning any such matter. I will now adjourn. ********** Last Modified: 02/10/2003 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.