New South Wales Supreme Court CITATION : Regina v Robert Etienne [2007] NSWSC 1114 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 5/10/07 JUDGMENT DATE : 5 October 2007 JUDGMENT OF : Bell J at 1 EX TEMPORE JUDGMENT DATE : 5 October 2007 DECISION : Not guilty by reason of mental illness; To be detained in a correctional centre or such other facility as the Mental Health Review Tribunal may determine until released by due process of law. CATCHWORDS : Judge alone trial - murder - defence of mental illness Criminal Procedure Act 1986 LEGISLATION CITED : Evidence Act 1995 Mental Health (Criminal Procedure) Act 1990 PARTIES : Regina Robert John Etienne (Accused) FILE NUMBER(S) : SC 2007/1817 COUNSEL : P Barnett (Crown) J Manuell (Accused) SOLICITORS : S Kavanagh SE O'Connor (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST BELL J Friday 5 October 2007 2007/1817 - Regina v Robert John ETIENNE JUDGMENT 1 BELL J: Robert John Etienne was arraigned on an indictment charging him with the murder of John Dennis Etienne between 10 August and 14 August 2006 at Bateau Bay in the State of New South Wales. He entered a plea of "not guilty". 2 Prior to his arraignment, on 30 May 2007, the accused signed a form of election under s 132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. He stated that before making his election he had sought and received advice in relation to the election from Ms Margaret Zahra. On 1 June 2007 the Director of Public Prosecutions consented to the trial of the accused proceeding before a judge alone. Ms Zahra is a solicitor and acts for the accused in connection with these proceedings. I am satisfied that before making the election the accused obtained advice in relation to the election from an Australian legal practitioner. The trial has proceeded before me as a judge sitting alone. 3 Section 133 of the Criminal Procedure Act 1986 provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such a case must include the principles of law applied by the judge and the findings of fact on which the judge relied. If any Act or law requires a warning to be given to a jury in any such case the judge is to take the warning into account in dealing with the matter. 4 The burden of proof lies on the Crown. It is incumbent on the Crown to establish each element of the offence beyond reasonable doubt. 5 The elements which the Crown must prove in this case are that (i) John Dennis Etienne, the deceased, died as the result of one or more stab wounds; (ii) the wound was (or the wounds were) inflicted by the deliberate act of the accused; and (iii) at the time of doing the act (or acts) it was his intention to kill or to inflict grievous bodily harm. 6 The Crown case proceeded by the tender of a number of statements; the transcript of an interview between Detective Sergeant Stares and the accused conducted at the Albury detectives' office on 15 August 2006 (the ERISP); the post-mortem report and a report of a forensic psychiatrist. This material was admitted by consent pursuant to the provisions of s 184 of the Evidence Act 1995; the accused having been advised by his counsel, Ms Manuell in this respect. 7 In the way the matter has been conducted no issue has been taken as to the proof of the elements of the offence. One issue has been raised and that relates to the accused's mental state at the time of the offence. The accused contends that at the time of doing the act causing death he was mentally ill so as not to be responsible in law for his acts and he invites the court to return a special verdict pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990. 8 Where an issue of mental illness is raised proof is upon the defence on the lesser "civil" standard. It is sufficient if the accused establishes on the balance of probabilities that he was mentally ill so as not to be responsible in law for his acts at the time of the offence. 9 The accused told the police in the course of the ERISP and the psychiatrists that he has no memory of the events surrounding the killing of the deceased. 10 The case is a circumstantial one. Before turning to the psychiatric evidence it is necessary to determine whether the Crown has proved the elements of the offence. 11 The deceased was aged 61 years at the date of his death. He was residing at Bateau Bay with his wife, Robyn, and the accused, his eldest son. The accused was living in a granny flat at the rear of the family home. He had been residing with his parents since leaving Frankston, Victoria where he had been living with his de facto wife and their three children. The relationship came to an end around December 2005. 12 On 5 August 2006 the deceased's wife and daughter travelled to Sydney. Mrs Etienne planned to spend some days with her daughter and her family. Mrs Etienne and her husband were a close and loving couple and maintained telephone contact throughout the period between 5 and 11 August. 13 On Friday 11 August the accused and the deceased went to the Bateau Bay bowling club where they each consumed a number of drinks. They remained at the club until about 9pm when they returned to the family home. A number of witnesses present at the club saw the two of them together and did not notice anything unusual about their conduct. 14 At about 9.30pm the deceased telephoned his wife and during the course of the telephone conversation he handed the receiver to the accused. Mrs Etienne said that she asked, "Are you looking after your father", and that the accused replied "Yep". She commented that he sounded as though he had, "the weight of the world on his shoulders". The deceased came back onto the line and said, "He is going crackers again". Mrs Etienne said goodbye to her husband. She did not hear from him again after that time. 15 Ms Woodhouse, a neighbour, was in her kitchen at around 9.30 pm on 11 August. Her kitchen window looks out onto the Etienne residence. The house and the granny flat appeared to be in darkness. Ms Woodhouse heard the sound of two male voices arguing. The sound came from the corner of the backyard where the granny flat is located. She did not recognise the voices nor was she able to understand what they were arguing about. One voice was very agitated, angry and furious. The speaker could hardly get the words out for emotion. The other voice was quieter and in better control. 16 The arguing went on for a period of 15 to 20 minutes. Ms Woodhouse went into her backyard and stood on a chair to look over the fence, but she could not see anything. The yard was in total darkness. The argument was continuing and at this point one of the voices was "absolutely out of control". She heard the quieter of the voices say "I have always supported you". With this, the other voice became louder and angrier and "totally lost control". Ms Woodhouse could not understand any of the words being uttered. Suddenly there was silence. 17 Mrs Etienne endeavoured to telephone the deceased on a number of occasions over the next few days. She became increasingly worried when there was no answer. 18 On 13 August a neighbour, Ms Livingstone, noticed a red commodore reversing from the front lawn of the Etienne home and driving out north along Bateau Bay Road. The accused owned a red commodore at the time. 19 On Monday 14 August Mrs Etienne and he daughter returned to the family home. They entered the house, which was locked and found nothing of note. They went to the granny flat and, upon opening the door they found the deceased lying on the floor near the lounge. Contact was made with the emergency services. The family doctor attended shortly thereafter and pronounced life extinct. 20 Post-mortem examination revealed the deceased had sustained three stab wounds. Two to the lower front of the left and right chest and one to the left abdomen. There was a wound to the right hand, consistent with being a defence wound. The cause of death was determined to be the stab wound to the heart. In the opinion of Dr Nadesan, who conducted the examination, death would have ensued within a short time of this injury. 21 The deceased died within a short time of eating a meal. 22 A search of the premises located a black handled kitchen knife, which was consistent with being the weapon that caused each of the wounds. It had blood on it. Blood was also located in the bathroom sink and on a sponge. 23 The accused was not at the family home. The police circulated a message that he was wanted for questioning. 24 On the evening of 11 August the accused telephoned his former de-facto wife and asked to speak with one of his daughters. The daughter relayed to her mother that the accused had told her to "stop playing with his head". 25 On 13 August the accused was sighted at the Frankston Hospital in Victoria where he was seen by a nurse. At 2.00 pm on 15 August his vehicle was sighted at a service station in Albury. Police attended and he was arrested. In the ERISP he said that he recalled attending the Club with his father. He agreed that he had spoken by telephone with his mother and he recalled that he had been involved in an argument with his father. After this he said that his recollection was hazy, the next thing he recalled was driving to Victoria. 26 Analysis was carried out on blood stained areas of the jeans being worn by the accused at the time of his arrest and the centre console of the commodore in which he was travelling. DNA analysis revealed that the blood located on the clothing and inside the vehicle and on the knife located at the scene, all had a profile consistent with it being the blood of the deceased. 27 The accused did not give evidence. I remind myself that the accused bears no onus and is presumed innocent. His election not to give evidence constitutes no admission and I draw no adverse inference from it. I may not use his silence in court to fill in gaps in the Crown case or as a makeweight. 28 Ms Manuell has not submitted other than that I would be satisfied beyond reasonable doubt that the deceased died as the result of stab wounds inflicted by the accused. The circumstances that are relied upon to establish this fact beyond reasonable doubt that are: (i) the accused was the last person to be seen in the company of the deceased; (ii) he was present in the family home with his father at around 9.30pm on 11 August; (iii) he admitted to having an argument with his father at that time; (iv) the evidence of Ms Woodhouse points to the argument that she overheard being the argument between the deceased and the accused; (v) the accused entertained beliefs, including that his father did not support him and wanted him out of the flat. It is in this context that Ms Woodhouse's account that the quieter of the voices said "I have always supported you" and that this appeared to prompt the total loss of control assumes particular significance; (vi) the deceased's body was found in the granny flat occupied by the accused; (vii) there were no signs of forced entry; (viii) the murder weapon was located in the granny flat and was normally kept in that flat; (ix) DNA analysis links the blood located on the accused's jeans and in his car with the offence. 29 I have no difficulty in concluding beyond reasonable doubt that the accused, by his deliberate acts caused the death of the deceased on 11 August 2006. 30 The autopsy report describes a stab wound to the lower front left chest penetrating upwards cutting the left lobe of the liver, left dome of the diaphragm and penetrating into the right ventricle of the heart cutting the first part of the aorta. Another stab wound to the left front abdomen penetrated the abdominal cavity and cut the front wall of the stomach. A further wound to the lower front right chest penetrated the right upper abdomen. The location and depth of the wounds (one of them being to a depth of 16 centimetres) in my view establishes beyond reasonable doubt that they were inflicted with intent, at the least, of causing grievous bodily harm. 31 I turn now to a consideration of the defence of mental illness. The Mental Health (Criminal Procedure) Act does not define mental illness for the purposes of s 38. The law in this respect is as stated in the McNaughton Rules. Every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proven. To establish the defence of mental illness it must be proved upon the balance of probabilities that at the time of committing the act (or acts) causing death the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or if he did know it, that he did not know that what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing. 32 Dr Giuffrida, a psychiatrist, examined the accused at the MRRC Silverwater on 6 February 2007. It was a lengthy examination during which he took a detailed history. Dr Giuffrida also reviewed medical records obtained from the Frankston hospital and the Peninsula Health Service, together with a number of documents contained in the Crown brief. 33 At the time of the interview the accused was aged 42 years. He had been in a de facto relationship for 20 years and had three children, a 17 year old daughter and twin girls aged 13. 34 The accused dated the onset of his psychiatric problems to 1999 when he said that his wife had become worried about him and had insisted that he see the local general practitioner. Following this he was referred to the community mental health service and had come under the care of the mental health team at the Peninsula Mental Health Centre. He recalled that he had been delusional about his neighbour and another person and that he had been prescribed anti-psychotic medication. The medication caused serious side effects and he had been trialled on other anti-psychotic medication. His dose of the latter medication had been substantial. The medication produced side effects, including excessive sedation and jerky spasmodic movements of his legs. Initially he had been compliant with medication but after a time he ceased taking it. Following this there had been a recurrence of paranoia and he had been admitted to the psychiatric ward of the Frankston hospital where he had remained for two weeks as an involuntary patient. He was released from hospital on the equivalent of a community treatment order. 35 In 2001, when he was again without the benefit of any anti-psychotic medication, the accused reported becoming paranoid, believing that his neighbours were following him, and that people in the street were staring at him, waiting for an opportunity to fight him. Partly as the result of the accused's belief that people meant to harm or to kill him and partly because of the breakdown of his relationship he left Frankston at the end of 2005 and moved into the family home at Bateau Bay. 36 Throughout the time the accused was staying with his parents in Bateau Bay he had not been taking any anti-psychotic medication. He described having become increasingly suspicious about the food that his mother was serving him. He believed it was "off" and that this was the cause of his abdominal pains and vomiting. He had come to believe that people had tampered with his food when he was eating out. He thought that people were trying to poison his beer or lace the beer glass with poison. As time went on the accused reported that conversations with his parents had a quality that were "a bit odd". He thought that his father was implying that he would "ring the cops and take me away". He thought his father had telephoned police on an occasion when he had been intoxicated. 37 The accused told Dr Giuffrida that he could not remember the offence. In particular he had no recall of stabbing his father. He remembered returning home with his father from the club and he remembered the quarrel. He could not remember anything from that point until arriving in Yass with the intention of driving on to Frankston. When asked about the quarrel he said that he thought his father had been asking him questions and "telling me to shut up". 38 Since coming into custody the accused had been assessed by forensic psychiatrists at the MRRC and had been placed in the mental health screening unit. He had been commenced on Risperidone and believed that the medication had helped him and that, "I am not as paranoid". 39 Medical records show the first full assessment of the accused's mental state was carried out by a psychiatrist in November 2000. The accused was then diagnosed with schizophrenia, and it was noted that his mental state was characterised by persecutory beliefs relating to home invasions and tampering with his garage. 40 Dr Giuffrida details further reports by medical staff evidencing treatment of the accused for his psychotic condition in 2001 and 2002. Notable is the report prepared by the Director of Psychiatry at the Peninsula Health Service, dated 6 September 2002, which records: "Although he had been treated with a wide range of anti-psychotic medication he had only partially responded to various treatments and has had persistent psychotic symptoms throughout this time." 41 In December 2002 the accused was diagnosed as experiencing an acute psychotic relapse. At this time he was reported to have been verbally aggressive, threatening with loud and pressured speech. He described persecutory delusions including of television presenters making derogatory comments about him. It was noted that he had no insight into his illness and that he did not accept the diagnosis of schizophrenia. 42 Dr Giuffrida details the history recorded in the Peninsula Health file including that in May 2004, despite the fact that the accused continued to hold paranoid and persecutory beliefs, he had not been continued on anti-psychotic treatment. This was so notwithstanding that the Mental Health Review Board had been satisfied in a determination made in September 2003 that the accused's detention, as an involuntary patient subject to a community treatment order, was necessary. In a report to the Tribunal, dated 21 August 2003, a psychiatrist recorded of the accused's condition, "will deteriorate without treatment" and that he, "misinterprets the behaviour of others towards him and can become unstable and aggressive". The accused was last seen by the author of the report in May 2004 when it was noted that he was still suffering from persecutory delusions. 43 Dr Giuffrida considers it of particular significance that in or around 1999 or 2000 the accused was reported by his wife to have entertained a belief that someone was living in the roof of their home. He had blocked all the air vents and kept all the lights on in the house to prevent this person getting into the house at night. 44 Dr Miller, a general practitioner, first had contact with the accused in March 2006. Dr Miller's last contact with him was one week before the offence. Dr Miller was aware that the accused had been diagnosed as suffering from paranoid schizophrenia and that he had delusions that his food was being interfered with and that people were talking about him behind his back. 45 Dr Giuffrida, concludes that it is: "More than abundantly clear that Mr Etienne has a long established history, but certainly since 1999 to the present time, of a chronic paranoid schizophrenia. This has been characterised principally by the development of a range of paranoid persecutory beliefs that people were following and stalking and threatening him and that at times the same people tampered with things in his house with the intention of playing with his mind and perhaps tampering directly with it. Of poisoning his food and drink and, at one time, of believing someone lived in his roof and was spying on him. These paranoid persecutory beliefs caused him to develop a range of increasingly bizarre behaviours to, in his view, protect him from the believed persecutors. … "I am of the opinion that Mr Etienne would have available to him a McNaughton or insanity defence in relation to the alleged offence. I say this on the basis that I believe that there is very strong evidence that at the time of the offence, certainly in the days, weeks and even months before the offence, that he was suffering from a defect of reason by way of paranoid persecutory delusions which increasingly incorporated his parents and most of all his father and probably in the day or so before the offence incorporated even his ex partner and their children. The defect of reason which he suffered was due to a disease of mind by way of the condition of chronic paranoid schizophrenia for which there is abundant evidence over a period from 1999 at the latest. That defect of reason occasioned by that disease of mind was of such a nature that Mr Etienne did not appreciate at the time of the offence that what he was doing was wrong. By not appreciating that what he was doing was wrong I mean that he had so thoroughly incorporated his father into his delusional system of beliefs as to believe that his father meant or was planning to do him serious harm probably by poisoning him." 46 The Crown retained Dr Neilssen, a psychiatrist, to assess the accused. Dr Neilssen carried out an examination of the accused at the Parklea Correctional Centre in April 2007. Dr Neilssen had access to the brief of evidence prepared by the police and to the medical records of the Frankston, Peninsula and Wyong Hospitals, and psychiatric reports including the report of Dr Giuffrida to which I have referred. 47 Dr Neilssen in a detailed report concludes that: "Mr Etienne has a severe and disabling form of the chronic mental illness, schizophrenia. At the time he killed his father he had not received treatment for the disorder for nearly two years and experienced the return of acute symptoms giving rise to the persecutory belief that his parents were trying to poison him. Mr Etienne's response to questions about symptoms during the recent interview indicated that he did not recognise symptoms of mental illness and as such he was unable to fully describe the symptoms that were present around the time of the offence. However, he has a well documented relapsing illness and the history from Victoria showed that he had previously become acutely ill within a year of stopping antipsychotic medication in late 2002. It seems Mr Etienne stopped treatment again in late 2004 and I believe Mr Etienne was acutely mentally ill at the time of the offence in August 2006." 48 Dr Neilssen comments on the accused's account that he had no memory of the offence and notes that about 30% of mentally ill patients who commit homicides report amnesia of the lethal assault. 49 Dr Neilssen concurs with the opinion of Dr Giuffrida that the accused has the defence of mental illness open to him. Dr Neilssen considers that at the time of the offence the accused was aware of the nature and quality of his act but that he did not realise that his actions were morally wrong because of his belief that his parents were persecuting him. Dr Neilssen also considers that the accused was unable to reason with sense or composure about the consequences of his actions. 50 The Crown in written submissions accepts that in light of the reports of Dr Giuffrida and Dr Neilssen, and the history given by the deceased's wife, the Court would be satisfied on the balance of probabilities that at the time of the offence the accused was suffering from chronic schizophrenia, and in the months leading up to it, the illness was manifesting itself in paranoid psychotic beliefs that people were trying to poison him. The Crown conceded that the unchallenged expert evidence is that at the time of stabbing his father the accused's mental illness was such that he was deprived of the ability to reason with a modicum of composure as to the moral wrongness of his actions. I accept that is so. 51 I am satisfied that at the time of doing the act causing death the accused was mentally ill so as not to be responsible in law for his acts and, accordingly, I am required to return a special verdict. Before doing so, I should note that I have had regard to the legal and practical consequences of a special verdict and reminded myself of the matters to which s 37 of the Mental Health (Criminal Procedure) Act directs attention. 52 Robert John Etienne upon the charge that between 10 August and 14 August 2006 at Bateau Bay in the State of New South Wales you did murder John Dennis Etienne I find that you are not guilty by reason of mental illness. ORDER I order that Robert John Etienne be detained in a correctional centre or such other facility as the Mental Health Review Tribunal may determine until released by due process of law. ********** 10/10/2007 - Correction to file number - Paragraph(s) [Coversheet] 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.