New South Wales Supreme Court CITATION : R v DELLA-TORRE [2005] NSWSC 703 HEARING DATE(S) : 20 & 29 June 2005 JUDGMENT DATE : 29 June 2005 JUDGMENT OF : Hulme J at 1 DECISION : The Accused is not guilty on the ground of mental illness. Regina PARTIES : Carl Anthony Della-Torre FILE NUMBER(S) : SC 70036/03 Crown: L Lungo COUNSEL : Accused: P Zahra SC Crown: S Kavanagh SOLICITORS : Accused: Marsdens Law Group LOWER COURT JURISDICTION : - 23 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HULME J 29 June 2005 70036/03 REGINA v Carl Anthony DELLA-TORRE JUDGMENT 1 HULME J: On 18 October 2002, Vally Della-Torre was killed. On 19 October 2002 Carl Anthony Della-Torre (hereinafter referred to as the Accused) was arrested by police and charged with her murder. 2 On 26 March 2004 Buddin J concluded that the Accused was then unfit to be tried for the offence of murder and, pursuant to s14 of the Mental Health (Criminal Procedure) Act 1900 referred the Accused to the Mental Health Review Tribunal. Earlier, on 23 February 2004 his Honour had found that the Accused was fit to be tried but further evidence was then provided in the form of a report from Dr Westmore of 25 February 2004 and one from Dr Allnutt of 27 February 2004. Both of these persons are experienced forensic psychiatrists and each was of the view that the Accused was unfit to be tried. 3 On 18 October 2004 the Attorney General made a direction pursuant to s18 of the Mental Health (Criminal Procedure) Act directing that a special hearing be conducted in respect of the offence with which the Accused was charged. It is that special hearing which is the inspiration for these reasons. 4 On 16 June last the Accused made an election under s132 of the Criminal Procedure Act that he be tried by a Judge alone, a course to which the Director of Public Prosecution consented. The possibility of there being some inconsistency between the conclusion that he was unfit to be tried and having a capacity to make such an election occurred to the Accused's legal advisors and evidence in the form of an Affidavit by the Accused's Solicitor and a report of Dr Westmore of 10 June 2005 obtained. I am satisfied that the Accused's unfitness to be tried and the factors leading to that conclusion did not and do not lead to the view that he lacked the capacity to make the election. Both parties acquiesced in this view and in the circumstances I do not think it necessary to detail the evidence which led me to it. 5 Before proceeding further, I should advert to the fact that s21(4) of the Mental Health (Criminal Procedure) Act provides:- "At the commencement of a special hearing, the Court must explain to the Jury the fact that the Accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts." 6 With a view to complying with that sub-section notwithstanding the absence of a jury, after the Crown had opened its case to me but before any evidence bearing on the Accused's guilt was admitted, I read to myself paragraph 40 of the report of the decision of the High Court in Subramaniam v R [2004] HCA 51. Both counsel accepted that this amounted to sufficient compliance with the sub-section. 7 It is also opportune at this stage to acknowledge that, putting aside any "defences" which may arise on the evidence, murder occurs when one person, intending to kill or inflict grievous bodily harm on another, carries out deliberately an act which in fact causes the death of that other person. Before a person accused can be convicted, the Crown must prove the guilt of that person beyond reasonable doubt. 8 That part of the Crown case as dealt with the issue of whether the Accused killed the deceased was evidenced by documents which were tendered without objection. The documents satisfy me that he did, that the act or acts which had this result were deliberate and with intent to kill the deceased. In a little more detail the documents show the following. The deceased lived at 23 Welby Street, Eastwood with her son, Charles. The Accused is the son of Charles. Over the years he has been involved with drugs and theft and has been in gaol on a number of occasions. Some years ago the Accused lived in a flat under the deceased's house and later, the deceased would to some extent help the Accused when he was released from gaol by washing his clothes. She would not infrequently find him asleep on her verandah without any permission to be there. When the Accused had been sent to gaol some 5 months previously, he had asked his father to pick up his clothes from where he had been living. His father did so, storing them under the deceased's house. On 17 October, the Accused attended at the deceased's house, had a shower, changed his clothes and had something to eat. He had been recently released from gaol. Some time between about 6pm and 6.30pm on 18 October 2002, the deceased returned to her home after having dinner with a daughter Emma Butcher who lived next door. At around 8.30pm the deceased had a phone conversation with a friend, Ms Lumbroso. During the course of the call Ms Lumbroso heard or said the following (not necessarily by way of continuous conversation):- Deceased: "Oh, it's you Carl. You know you can't stay here. You must go." Deceased: "I haven't got any money. What did you do with your government money?" Deceased: "Oh you lost your card. Male voice: "Nonna, make me a cup of tea and give me a blanket and a cushion. I'll sleep on the verandah." Deceased: "I've got (to) get the blanket and a cushion. He's going to sleep on the verandah." Lumbroso: "Don't let him in. Give him the blanket and the cushion. Don't let him in and let him sleep on the verandah." Deceased: "You know I don't like that. I'll call you tomorrow. Goodbye." ("Nonna" is the Italian word for Grandma and was a term used by the deceased's grandchildren including the Accused.) Shortly after 9pm, Charles Della-Torre received a phone call from the deceased. At some stage the Accused spoke on the deceased's phone and the conversation included the following. The deceased said that the Accused was there and wanted to stay the night. She indicated that she did not wish that. Charles Della-Torre then spoke to the Accused. The latter said that he had nowhere to stay, repeating this in strong terms when his father told him that he could not stay. When his father responded that that was the Accused's problem, he being 31 years of age, the Accused said that it was his father's "fuckin' problem". There was then further conversation between the deceased and her son and the latter again spoke to the Accused, reiterating that the Accused had to go. The Accused announced that he was staying and told his father that he had better not return to the house because the Accused would kill him. Charles Della-Torre reiterated that the Accused was not to stay, said that he would call the police and the Accused then slammed the phone down. Charles Della-Torre then rang his sister Emma Butcher, asked her to ring the police and then tell the Accused she had done so and he could not stay. On receipt of that phone call Mr Richard Butcher ran to the deceased's house and found her lying in the entrance hall of her house, having bled profusely and either badly injured or dead. Shortly afterwards ambulances arrived by which stage the deceased was dead. Injuries suffered by her included:- A deep complex roughly horizontal incised wound extending approximately 275mm from near one ear lobe to about 55mm from the other transecting both common carotid arteries and perforating the walls of both jugular veins. Four other incised wounds to the front of the face and one ear, fourteen areas of bruising or laceration or abrasion to the head and neck, three injuries to the trunk, one of them an incised wound and eight areas of bruising and laceration to the upper limbs. On the morning of the following day, police found embedded in the front garden of the deceased's house two knives. During police examination of the deceased's house fairly distinctive shoe-prints either in blood, or which had imposed blood on the floor, were seen. The upper cutlery drawer under the sink was open, that drawer containing an assortment of knives. In the sink there were two empty coffee cups The pattern of those prints matched gym boots the Accused acknowledged were his when seen by police officers at about 4.55 am on 19 October at the Castle Hill Police Station The left one of those gym boots was stained with blood on the left and right upper ankle areas and on the sole. The right one of the pair showed blood staining on the sole and concentrated staining on the sides. There was blood staining on the socks. Presumptive testing for blood on the tracksuit pants and jumper which the Accused would seem to have been was wearing when arrested also indicated the presence of blood. Testing indicated very strongly that the deceased's DNA was on the Accused's right gym boot and a jumper said to be his. (In the material tendered, the Accused's ownership of the jumper is something left for inference on evidence which, at its highest, is very thin. However, in the way the case was conducted, the evidence is, I think sufficient. DNA testing of a swab from the handle of the open kitchen drawer showed a profile the same as that of the Accused and which could be expected to be found in 1 in 1500 of the population. DNA testing of one of the coffee cups found in the house showed a profile which matched that of the Accused and which is to be expected in fewer than 1 in 10 billion of the population. A DNA profile from a female and which could have been the deceased was recovered from the other coffee cup. 9 In the early morning of 19 October the Accused participated in an ERISP. During the course of it, he denied being at 23 Welby Street on the night of his grandmother's death and denied having any involvement in her death. It should also be mentioned that, according to Mr Charles Della-Torre, the Accused seemed to respect the deceased, even when he was having a hard time in consequence of drug abuse and jail sentences. Nevertheless, I have reached the conclusion as to the Accused's involvement which I have set out above. 10 The matters which were in serious contest during the hearing before me involved the Accused's mental state at the time of assault on his grandmother. It was contended on the Accused's behalf that he was legally insane at the time or, alternatively, that he was suffering from substantial impairment by abnormality of mind. The onus of establishing these defences is on the Accused but proof on the balance of probabilities is all that is required. 11 More precisely, the issues which arise under these defences are as follows. In the case of mental illness, the question is "has the Accused shown that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of his acts which led to the death of his grandmother or did not know that those acts were wrong". The requirement that did not know that those acts were wrong would be established if he could not think rationally of the reasons which, to ordinary people, would make his actions right or wrong or if he could not reason about the matter with a moderate degree of sense and composure – see R v Porter (1933) 55 CLR 182; R v Sodeman (1943) 55 CLR 192 12 So far as the issue of mental illness is concerned, I should acknowledge the terms of s37 of the Mental Health (Criminal Procedure) Act and record that I have had regard to the relevant provisions of the Mental Health Act. 13 The defence of substantial impairment by abnormality of mind exists pursuant to s23A of the Crimes Act which, so far as is presently relevant provides:- (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying conditions, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 14 The evidence relevant to these defences comes principally from 3 psychiatrists but before turning to their evidence there is some other to which I should refer. 15 In addition to saying that the Accused seemed to respect the deceased, even when he was having a hard time in consequence of drug abuse and jail sentences, the Accused's father said that when being interviewed by the police that he could not envisage the Accused hurting his grandmother and seemed to respect her in every way. 16 The circumstances leading to the Accused's arrest should also be mentioned. At about 11.10pm on 18 October he threw a brick at and striking a car passing along Old Northern Road, Castle Hill. The car stopped and one of the occupants alighted, approached the Accused and asked why the Accused did that. The Accused replied, "Give me money. Given me money." before walking off. Although followed – and there is no suggestion the following was covert - the Accused then went to a Mobil Service Station where he attempted to obtain a cup of coffee, making nothing that could be called an attempt to escape. It was at the Service Station that he was arrested. 17 To a significant degree all 3 psychiatrists relied on the Accused's clinical history. That history included the following:- 20.12.00 A mental health nurse recorded that the accused was allegedly hearing voices. Dr Westmore observed that it was also noted as this time the accused was detoxing. 19.01.02 A psychiatric nurse thought he might have significant depression. Dr Allnutt records that on this occasion the accused was manifesting a normal mood and affect, denying all perceptual disturbances. One of Dr Westmore's reports indicates that the accused was in the Langton Clinic at about this time. 14.04.02 The accused had contact with the Darlinghurst and Ashfield Mental Health teams. 10.02 A psychiatric Registrar, Dr Cassidy, diagnosed the accused as suffering from, inter alia, substance use, ante-social personality disorder and possibly major depression. 14.11.02 Prison classification officers thought the accused might be psychotic but Dr Walker detected no psychosis on examination and the accused denied psychotic symptoms. 29.04.03 Dr Walker noted that psychosis was unlikely. 17.06.03 On examination by Dr Walker the accused was noted to be delusional and thought disordered and that he thought he was Satan. Dr Walker noted the accused was an unreliable historian and clearly psychotic. He was placed on anti-psychotic medication. 27.06.03 Following unusual and probably bizarre behaviour the accused was treated involuntarily, he claimed his name was Satan and he was diagnosed with a psychotic disorder. He was treated with anti-psychotic medications. 07.07.03 The accused was noted lying on the floor swearing at the top of his voice and apparently responding to non-apparent stimuli. 07.03 The accused seemed to be interacting reasonably well with others and did not manifest obvious psychotic phenomena at interview. 08.03 The accused's mental state and behaviours had settled. 18 The first of the psychiatrists to give evidence was Professor Greenberg who, in a report of 2 October 2003, recorded that the accused denied any hallucinations and there was no evidence of any delusions during the time surrounding the deceased's death. Based on the transcript of his ERISP there was no evidence to suggest any psychotic mental illness at that time. Professor Greenberg was of the view that the Accused's history did not suggest any psychotic episodes prior to the deceased's death and expressed the opinion that the Accused was not suffering from any psychotic illness at the time of the offence or of a mental illness which would have impaired his abilities to understand or control his behaviour. 19 In his report of 25 February 2004 Professor Greenberg recorded his opinion that at the time of the deceased's death "he was not suffering from a disease of the mind so as to not know the nature or the quality of his act he was doing of if he did know that he did know what he was doing was wrong. … There is no evidence to suggest that Mr Della-Torre was suffering from any psychotic illness such as schizophrenia during the time period surrounding the alleged offence." Professor Greenberg said that he had not at that stage assessed the accused in relation to a defence of substantial impairment. 20 In the interview which led to this report, the accused seems to have given to Dr Greenberg the fullest account he provided to any one of the incident involving his grandmother and of his thoughts and emotions at the time. Professor Greenberg records:- "He informed me that he did not want to discuss his behaviour during the time period surrounding the alleged offence, because he was "embarrassed and ashamed" about his actions at the time of the offence. He stated that he recalled all the details of his actions during the time period surrounding the offence and he has no loss of memory. He gave a brief account of his behaviour during the alleged offence. The brevity was in keeping with his clinical presentation of marked poverty of ideas found with this type of chronic mental illness. On questioning he could recall his personal circumstances prior to the offence; he recalled going to his grandmothers residence; he recalled talking to his father on the telephone and making a death threat; he recalls where he got a knife from; he recalls the details of the offence of alleged murder of his grandmother and he recalls his actions on leaving his grandmother's residence. He claims he had no money, no fixed abode and his grandmother refused to provide him with accommodation. He states the reason for his behaviour was that he was "angry" with his grandmother for not letting him stay at her home. He denies any psychotic symptoms at the time period prior to or surrounding the alleged offence, including hallucinations and delusions. … Mr Della-Torre states that at the time period surrounding the alleged offence he was under considerable stress because he had no fixed abode and he had recently been evicted from the Matthew Talbot Hostel. He states he had no one else to turn to except his grandmother. He was homeless and had no money and it is likely he had some depressed mood at that time." 21 Professor Greenberg saw the Accused again in mid March 2004. The Accused was again reluctant to discuss his behaviour at the time of the incident but according to Professor Greenberg "he again gave a similar version of his account of the alleged offence that he had given me on previous psychiatric interviews". Professor Greenberg recorded:- "He denied any loss of memory for the events surrounding the alleged offence. Mr Della-Torre stated he understood the wrongfulness of his behaviour at the time of the alleged offence. He also claimed he had control of his actions and thoughts during this time period." 22 In evidence, Professor Greenberg also said:- "I asked him again what had happened and he said he kicked her and she was out cold. I then asked him why did he get a knife and he said "I was angry". I then asked him again, "What happened?", and he said "I first punched her, then I trod on her". I asked him why he cut his grandmother's throat and he said "To make sure she was finished and not in pain". 23 Professor Greenberg expressed the view that the accused's mental or other capacity in relevant respects was not substantially impaired by abnormality of the mind arising from an underlying condition. 24 Between the time of that report and giving evidence, Professor Greenberg saw the video tape of the Accused's ERISP and changed his mind. Professor Greenberg had previously seen only the transcript. The particular aspects of what is to be seen on the video recording which led to this change of view were "the lack of expression, what we call lack of affect, the aspontaneousness of his responses, the long pauses, the poverty of ideas, the lack of information that he gives" – matter which, according to the Professor, provided some evidence that the accused was then suffering from negative or prodromol symptoms of schizophrenia. Professor Greenberg went on to say that he thought the Accused's capacity to control his actions was likely to have been substantially impaired. 25 Professor Greenberg rejected the possibility that the accused was at that time suffering a disease of the mind saying "early stages but not full blown mental illness". The professor said that "in order to diagnose schizophrenia you have to have an acute psychotic symptom" and the evidence did not indicate that this had occurred until some time after the deceased's death. Taken to part of a report of Dr Allnutt where it was recorded that the accused had said that at the time of the offence he believed he was Satan, Professor Greenberg said that the accused had denied such thoughts to him and there was no evidence of a link between such a belief and the Accused's actions viz-a-viz his grandmother. The professor further opined that the accused was also suffering at the time from a depressive illness but he was unable to assess the degree of that. 26 Professor Greenberg acknowledged that some of the lack of reaction or lack of response as depicted on the video could have been due to factors other than the prodromol symptoms of schizophrenia but thought the extent of that lack supported his assessment. He said it was difficult to know when the Accused actually started presenting with symptoms of schizophrenia because he had a lot of personality problems and was using a lot of illicit substances. 27 Another psychiatrist who saw the Accused was Dr Allnutt. In his first report he recorded that the Accused was extremely guarded throughout his interview but denied all symptoms of psychosis. Dr Allnutt concluded in his report of 30 July 2003 that:- "It is also possible that at the material time of the alleged offence, the defendant was suffering at least symptoms of depression and it may be that at the material time of the alleged offence he was suffering symptoms of a psychotic mental illness. It is not possible to clarify the presence or absence of psychotic symptoms because of the defendant's extreme guardedness and limited capacity at this stage to engage adequately with clinicians… … His high degree of suspicion currently derives from an underlying paranoia that suggests to me that he has ongoing symptoms of a mental illness and likely ongoing persecutory delusions that he does not communicate. 28 Dr Allnutt provided a later report dated 27 February 2004 having seen the accused the day before. On that occasion the accused denied all symptoms of psychosis but was reluctant to explain his understanding of the facts of the incident stating that it was too depressing. The accused however, told Dr Allnutt that:- "At the time of the alleged offence he believed he was Satan and that these thoughts had been present prior to, during and following the time of the alleged offence dissipating approximately 6 months ago. He told me that he believed he was mentally ill at the time and that he was considering an insanity defence based on his belief." 29 Dr Allnutt expressed the opinion:- "… There is a strong possibility of psychotic symptoms at the material time of the alleged offence. He wishes to plead insanity but then is reluctant to provide information in relation to his mental state at the material time. There are three likely explanations for this. He may be making a conscious and logical decision to not collaborate with the provision of an account of his mental state at the material time. He could have ongoing underlying symptoms of psychosis that he is not reporting that caused him to be making an irrational choice in this regard. He could also be experiencing difficulty in processing his thoughts, manifesting as thought blocking and thus is incapable of providing an account." 30 In evidence, Dr Allnutt said that he had again seen the Accused briefly that morning, i.e. on 29 June 2005. On that occasion he told Dr Allnutt something which he had not told him in the past namely that in the weeks leading up to the day of his grandmother's death he heard many voices, some saying good things and some bad things although the Accused said he couldn't recall what was said. Also on this day the Accused told Dr Allnutt that he could not recall having had thoughts of Satan before, during or after the incident involving his grandmother. In evidence Dr Allnutt indicated that the Accused had said that he could not recall these voices being active at the time of the offence. 31 Dr Allnutt referred to an aspect of the ERISP which he identified at approximately 5.48 and perhaps elsewhere, where Dr Allnutt thought the Accused was possibly responding to auditory hallucinations and also said that it occurred to him that there may have been more hesitancy on the part of the Accused during the ERISP to answer when he was being asked about his grandmother's death than elsewhere but said there were a number of possible explanations for this. 32 Dr Allnutt expressed the view that on the balance of probabilities the accused had a bona fide mental illness of full blown schizophrenia prior to and after the deceased's death and was not merely exhibiting prodromol symptoms at that stage. 33 Dr Allnutt was of the view that even in the account to Professor Greenberg which I have quoted, the accused had not related anything about his mental state at the time of the incident and that it was difficult for anybody to say whether this was a ploy to maintain deception, a consequence of not wanting to revisit thoughts or a consequence of his mental illness. While the Accused seemed to have memory for his actions and feelings, detail about his thinking processes was missing. There was insufficient information provided by the Accused about his reasoning processes. 34 Taken to the reference in his second report to the Accused having said he was considering a mental illness defence, and asked to consider the possibility of coincidence between that and the fact that it was in that interview that the Accused had first mentioned to Dr Allnutt thinking he was Satan, Dr Allnutt responded that if the Accused had suddenly decided to pursue an insanity defence, one would have expected him to provide far more information. 35 In Dr Allnutt's first report he recorded that the Accused repeatedly advised that he did not commit the crime and on that basis was reluctant to proceed any further with the interview. The Accused maintained this reluctance in the interview which preceded Dr Allnutt's second report even when he was contemplating raising an insanity defence and asserting he was mentally ill at the time. 36 In evidence Dr Allnutt indicated that even on the assumption that the Accused thought he was Satan at the time of killing his grandmother, the fact remains that there was no knowledge of any connection between such thoughts and what occurred. Because Satan is a moral figure, if the accused was experiencing delusions about Satan, one could assume or infer that his reasoning processes on right and wrong may be have been impaired but there is nothing to indicate what the degree of impairment may have been. 37 Dr Allnutt was of the view that the Accused's memory of his actions suggested that he had capacity to understand the nature and quality of his acts but because of lack of information the doctor could not draw any firm conclusions as to whether the Accused was unable to understand that what he was doing was wrong. Asked whether the Accused was able to reason with a moderate degree of calmness as an ordinary person would as to the moral quality of the acts – c.f. R v Porter - Dr Allnutt said he was unable to say. Dr Allnutt reiterated that there was not enough detail to draw a firm enough conclusion on the issue of any link between any thoughts of being Satan and the killing. 38 Dr Allnutt was of the view that the Accused would still have been suffering a schizophrenic illness and thus a disease of the mind even if the illness was only at the prodromol stage. Thus Dr Allnutt thought the accused was suffering a disease of the mind at the time of the killing. Unsurprisingly, the doctor thought is would be fair to conclude also that the Accused was then suffering an abnormality of mind. 39 In cross examination he also said that even if the Accused's then condition was not founded in psychotic illness he was at least suffering from depression or depressive syndrome of a moderate degree and this would be both a disease of the mind, and an abnormality of the mind. Depression, at least in the case of men, does tend to reduce a person's capacity to control their actions. A combination of prodromol symptoms and depression would be an abnormality of the mind and the two would compound and aggravate each other and affect the Accused's ability to control himself and to control any anger. Dr Allnutt also expressed the view that the combination of the prodromol schizophrenia and depressive illness would be sufficient to amount to an abnormality of mind and it would be reasonable to conclude that this was likely to substantially impair the Accused's ability to control his actions. 40 Pointing out that the Accused did not appear to have arrived at his grandmother's house with the intention of harming her and that there, there was an interaction which triggered an impulsive aggressive response, Dr Allnutt said that this response was consistent with loss of control due to anger. Against the background of the good relationship between Accused and the deceased, the violence did throw up the issue of whether the Accused's mentally ill symptoms played a part: However the lack of information about the nexus between thinking and acting precluded the drawing of firm conclusions. 41 Dr Westmore provided five reports. His first interview with the Accused was on 24 September 2003 at which stage the Accused denied ever hearing voices and said he did not think he had a mental illness. The Accused indicated he did not like talking about the police allegations and asked what his defence to the charge would be, said he didn't have one. Dr Westmore opined that the Accused's history which in large part Dr Westmore had obtained from reports of Dr Allnutt left little doubt that he had suffered a psychotic illness characterised by bizarre behaviour and delusional thoughts. Dr Westmore said he believed that the Accused "continued to suffer from either a major depressive illness with psychotic symptoms or a primary process psychotic illness." 42 Dr Westmore saw the Accused again on 21 January 2004 and wrote 2 reports subsequent to this visit. On that occasion Dr Westmore enquired of the accused how he had been from a mental perspective at the time his grandmother died to which the Accused replied "I just wasn't thinking straight". Asked to provided further details the Accused said he couldn't answer. On direct enquiry the Accused denied hearing voices at the time. When asked what happened on the day of the incident, the Accused then said "I don't like talking about it". Dr Westmore said that this refusal rather than lack of memory seemed to be the problem. Asked how he had been mentally on the day, the Accused said "just thinking strange things and that" but couldn't remember what these were. He said he had had such strange thoughts for about a week prior to his grandmother's death but denied ever having thoughts like that before. He denied having had any strange thoughts about his grandmother but said he didn't want to talk about the topic of the thoughts he had had. 43 During this visit, the Accused indicated he intended to plead not guilty on the basis that he was mentally ill at the time. 44 Dr Westmore indicated that at the time of the visit, the Accused was displaying chronic symptoms of mental illness or the effects of anti-psychotic medication and opined that it was highly probable that the Accused was mentally ill at the time the offending occurred and therefore probable the mental illness played some role in the offending. 45 In his fourth report Dr Westmore refers to having re-assessed the Accused on 18 February 2004. The accused repeated that he had been "thinking strange things and that" on the day of the incident but did not want to talk about it because it was depressing. Asked directly whether he could remember what he was thinking at the time he said he could not remember. Asked was he angry with his grandmother, he said yes and gave as his reason "because she wouldn't let me stay". He said did not know why he had become so aggressive. 46 Dr Westmore told the Accused that he had received clinical notes which recorded that the accused had, in the past, thoughts about Satan to which the Accused nodded. Dr Westmore asked the Accused whether he had these thoughts at the time his grandmother died to which the accused replied "Yes (but) it's not something I like talking about. Is this going to take much longer". 47 Dr Westmore advanced some possible reasons for the Accused's reticence to discuss aspects of the offence and said that he believed the question of a mental illness defence could not be fully addressed until the Accused discussed his thought processes as they existed at the time his grandmother died. Dr Westmore noted the absence of any clear history in respect of those matters. At the end of this fourth report Dr Westmore said:- "It is my view that Mr Della-Torre, on the balance of probability, was mentally ill at the time his grandmother died. It still remains however that a more detailed history from him about his mental state at the time his grandmother died is necessary to form a definitive opinion as to whether or not he has a defence of mental illness or the defence of substantial impairment in relation to the charge of murder." 48 On 8 June 2005 Dr Westmore again interviewed the accused. On this occasion he was asked how long he had had the strange thoughts leading up to his grandmother's death and he said "weeks I'd say" but denied he had had thoughts of that type previously. Again he emphasised he didn't like talking about the topic. He said he intended to plead not guilty by reason of mental illness, namely schizophrenia but didn't know what symptoms he had. In his fifth report, Dr Westmore's opinions include the following:- "It is likely that Mr Della-Torre does have memory of what occurred in relation to his grandmother, he may find those events too painful to discuss or there may be other explanations for him not disclosing what he was thinking at the time his grandmother died. This does compromise his ability to give an account of himself and to instruct his legal representatives. … Mr Della-Torre is certainly consistent in not discussing the incident with me. This appears to be his pattern with others as well. I think it is likely Mr Della-Torre was mentally ill at the time of the alleged offence but I have insufficient information from him to enable me to say in a definitive way how his mental illness may have affected his behaviour towards his grandmother." 49 Dr Westmore suggested there were a number of possibilities why the Accused failed to discuss his state of mind further. Dr Westmore expressed the view that at the time of the killing the Accused had a disease of the mind, the particular condition being a chronic schizophrenic illness. It was possible also he had episodes of depression. Dr Westmore opined that it was likely that at the time the Accused was unable to consider his behaviour with a rational degree of calmness and to that extent did not know he ought not to do the act. His basis for the latter conclusion was the Accused's mental illness, that he had had a good relationship with his grandmother, that the aggression was extreme and, in Dr Westmore's view, the provocation was relatively minor. Dr Westmore refers also to a history of disturbed behaviour either that day or in the days before and also some time afterwards with a legal representative – matters about which there is little, and no persuasive, evidence. 50 Dr Westmore thought the Accused was more than prodromol at the time of the incident having displayed psychotic symptoms in November 2000. Dr Westmore was also of the view that the Accused probably had delusional thoughts 24 hours a day, 7 days a week and on that basis he probably had them at the time of the incident. 51 Dr Westmore said he found it hard to quantify how severe the Accused's depression was but said that even if unaccompanied by psychotic symptom, it would be an abnormality of mind which would have substantially impaired the Accused's capacities "either in the second leg, not knowing the nature and quality and/or possibly the third leg the issue of control". In this answer at T59, Dr Westmore was no doubt referring to the various factors mentioned in S23A(1)(a) of the Crimes Act which I have set out above. 52 Dr Westmore was taken to the fact that the Accused on 24 February 2004 seemed to have told Dr Westmore he couldn't remember what he was thinking at the time but told Dr Allnutt two days later that at the time of the alleged offence and prior to and following, he believed he was Satan. Dr Westmore said it was not possible the Accused could have forgotten that when he spoke to Dr Westmore. Taken to the apparent inconsistency in accounts about the hearing of voices apparent from a comparison between what the Accused is said to have told Dr Westmore as recorded in the latter's report of 29 September 2003 and Dr Allnutt's evidence of what the Accused told him on 29 June 2005, Dr Westmore again said that it was most unlikely the Accused had merely forgotten. 53 Dr Westmore said that the hearing of voices by patients with schizophrenia may be episodic and in that case they may or may not be likely to remember when in the past they have heard them and when not. Patients with schizophrenia have quite disorganised thought processes. 54 Dr Westmore said that nothing had changed since he had expressed the opinion in his last report which I have set out above and commencing "I think it likely". However, in re-examination Dr Westmore said he thought on the balance of probability mental illness played an immediate role in the Accused's actions towards his grandmother. Dr Westmore indicated he relied in this regard on the history going back some years prior to the incident, an immediate history prior to the incident, the incident itself, the Accused's behaviour during his psychiatric examinations and towards one of his legal representatives. I have indicated above, I am not satisfied of some of this factual material. 55 Asked whether the Accused's warning to his father suggested a degree of rationality at that stage on the issue of whether killing was right or wrong, Dr Westmore said it might be. 56 A matter to which all the psychiatrists referred and which I should also mention was the Accused's flat or blunt affect apart from some particular occasions when he seemed to be upset or disturbed by the interviews. Conclusion 57 What conclusions should be drawn from all this. The evidence from the Accused's father and the Accused's account to Professor Greenberg, leads me to the view that at the time of, and shortly before, the killing of his grandmother the Accused was very angry at being refused, by her and his father, to be allowed to stay the night at her place. 58 The Accused's actions in drawing attention to himself by throwing a brick at a car within a couple of hours of killing his grandmother and making little effort to avoid apprehension thereafter indicate that at that stage, to a significant degree, he was not acting rationally. His affect as revealed on the ERISP which also occurred not long after the killing is also most unusual and although I think there was more obviously a disinclination to speak in response to questions about the incident than about less critical topics – a disinclination which I infer had some rationality about it – certainly the Accused's demeanour as depicted on the video recording is unusual. 59 The pre-killing history of the Accused's mental state and actions, the matters to which I have just referred and the subsequent overt development of a mental illness – a matter on which all of the psychiatrists agree leads me to conclude that on 18 October 2002 he had a mental condition which is properly to be regarded as a "disease of the mind" within the principles relating to mental illness in the criminal law and an "abnormality of the mind arising from an underlying condition" within s23A of the Crimes Act. That condition was schizophrenic in nature even if it had not developed at that stage to full blown schizophrenia – a matter of which I am not satisfied. I accept also that the Accused also suffered from depression at the time although I am not satisfied that, had that depression stood alone, it was of a degree which would have answered either of the formal descriptions. 60 Given the paucity, and to some extent inconsistency of, evidence relating to the suffering of delusions prior to or at the time of the death of the deceased, I am not persuaded that the Accused suffered any which had any relevance to the to the deceased's death. Indeed, I am not satisfied that he suffered any delusions at any time near the time of her death. Furthermore, I am not satisfied that the delusions of being Satan which the Accused seems to have suffered at some time were of a nature which were likely to have had any impact so far as the killing of the deceased is concerned. 61 The warning which the Accused gave to his father to the effect that he would kill him if he returned to 23 Welby Street indicates that at that time – very shortly before the killing - the Accused had some degree of rationality. It argues against the Accused not having appreciated the nature and quality of his acts which led to his grandmother's death and not knowing they were wrong. Of course this warning is not the only relevant evidence. There is a deal more including particularly his psychiatric condition and the violence of his actions contrasted with his previous feelings for the deceased. The degree of violence certainly argues that he could not reason about the matter with a moderate degree of sense and composure although there still remains the question whether that inability was due to his psychiatric condition or to other factors, e.g. simple, albeit extreme, anger. In that regard, I should say that I would not regard the refusal of his father and grandmother to allow him to stay as, seen through the Accused's eyes, relatively minor. It would seem that he thought he had come to the end of the road in that respect, having apparently been evicted from the Mathew Talbot Hostel and perhaps elsewhere too. It is distinctly possible that he saw himself as being rejected by his one remaining hope. 62 Even the additional detail to the effect that, having punched and then trod on the deceased, the Accused then cut her throat to make sure she was finished and not in pain is a further indication of lack of rationality and, although subject to some discount on the basis of the time at which this account was given, tends to confirm that at the time the Accused was thinking irrationally. 63 Although I have not found the decision easy, at the end of the day the conclusion at which I have arrived is that the Accused has satisfied the requirements of a defence of mental illness. Had I not so concluded, I would certainly have concluded that at the time of the acts causing the deceased's death the Accused's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition. 64 Accordingly, the verdict at which I have arrived is that the Accused is not guilty on the ground of mental illness. ********** 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.