New South Wales Supreme Court CITATION : R v Wayne Michael SPILLETT [2008] NSWSC 1084 HEARING DATE(S) : 10/10/2008 JUDGMENT DATE : 15 October 2008 JUDGMENT OF : Howie J at 1 DECISION : The accused is not guilty of the crime of murder on the ground of mental illness. I order that the accused be detained in the custody of the Department of Corrective Services until released by due process of law. The Registrar is to notify the Minister for Health and the Mental Health Tribunal of the verdict and the orders made by the court. CATCHWORDS : Criminal Law - Trial by Judge Alone - Defence of Mental Illness. LEGISLATION CITED : Crimes Act 1900 - s 23A CATEGORY : Principal judgment PARTIES : Regina v Wayne Michael Spillett FILE NUMBER(S) : SC 2008/7566 COUNSEL : Crown - P. Barnett SC Accused - J. Stratton SC SOLICITORS : Crown - S. Kavanagh Accused - B. Duchen IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J WEDNESDAY 15 OCTOBER 2008 2008/7566 REGINA v Wayne Michael SPILLETT JUDGMENT 1 His Honour: This is a trial by judge alone. The accused was charged with the murder of his brother on 22 August 2007. He pleaded not guilty to that offence on arraignment before me. The issue to be resolved in this trial is very limited and does not depend upon the veracity or reliability of any of the witnesses who could give evidence about the facts and circumstances surrounding the killing of the deceased. The vast majority of the evidence placed before me was by way of witness statements and psychiatric reports. Only two witnesses were called before me and gave brief and uncontroversial evidence. There is no significant dispute as to the facts surrounding the killing and the parties are in agreement as to what my verdict should be. 2 There is no doubt that the accused caused the death of the deceased and that he did so intending to kill him. The accused has admitted so much in a recorded interview with investigating police. He maintained that he took the life of his brother in his own self-defence believing that his brother was going to kill him. However the issue of whether the accused did act in reasonable self-defence is not the matter raised before me for my determination. 3 The question to be resolved on the evidence presented to the court is whether at the time of the killing the accused was mentally ill within the M'Naghten rules. The accused has the onus of establishing that defence on the balance of probabilities. The Crown has conceded that the accused has discharged that onus. Notwithstanding that the parties both submitted that I would find the accused not guilty on the ground of mental illness, and notwithstanding my tentative view at the completion of the evidence that the defence had been made out, I reserved the matter so that I could read the significant amount of material placed before me. 4 The facts can be briefly stated. The accused has suffered from a bipolar disorder for many years resulting in occasional manic episodes. As a consequence he has been hospitalised from time to time and has been prescribed medication. He has also on occasions expressed paranoid delusions as a result of this mental disorder. Although there is some evidence of the accused being violent to other persons as a result of his mental disorder, these appear to have been isolated incidents the last in 2005 involving his father and sister. Generally speaking he was never considered to be a danger to anyone. It was his brother, the deceased, who often took on the responsibility of assisting the accused when he became manic by calming and controlling him. Members of the accused's family, and presumably his brother, knew that he was resistant to taking his prescribed medication. However, the accused and his family generally appeared to cope with the effects of his mental disorder without too much concern for the consequences of his behaviour or his disturbed thought processes. 5 There have been times when the behaviour of the accused was very singular. For example on one occasion he told an acquaintance that he had killed a person by pushing him through a window. There has been no report of any such killing and police do not believe that it occurred. On other occasions he has said that he believed that he was being pursued by the IRA, or bikie groups and that he was a member of a non-existent military group. 6 At the time of the killing the accused was aged 42 years and his brother 39. They shared accommodation in a cottage on a country property outside Narromine. The accused was in receipt of a disability pension because of his mental disorder. The accused's brother worked while the accused looked after the house. They have been described by a number of witnesses as best friends. There was never any violence observed between them. 7 The accused is a solid, well-proportioned man. His brother was taller and more muscular. He was described as having been a powerfully-built man of great strength. One witness referred to him as "a gentle giant". He was never known to be violent or angry even under the influence of alcohol that he frequently consumed at a local hotel. He and the accused had common friends one being Jason Bartlett. 8 Shortly before the killing there was an incident when the deceased and some friends were at the property. They had been drinking and he was showing his skill with a chain saw. A branch fell against the house dislodging some guttering. The accused went to his vehicle without saying anything and drove from the premises. Later he complained of drunken parties at the house and threatening behaviour to him by those present. There seems to be no factual basis for this belief. 9 On the day of the killing, 22 August 2007, the accused was at the house and his brother in the hotel that he frequented. There were a number of telephone SMS messages sent by the accused. One was sent about 1.20pm to his brother asking him to stay in town that night. Another was sent at about 3 pm saying, "Please don't come here 2nite". At 3.43pm the accused sent an incomprehensible message to Mr Bartlett about him being two persons down. 10 The deceased left the hotel at about 7 pm saying that he was "gunna sort this fucking schizo brother of mine out". He did not appear angry when he left. He was never seen alive again. 11 At about 8.14pm the accused sent a message to Mr Bartlett saying, "control ur pet monster please". At 8.54 pm a friend of the deceased sent a message to the accused asking whether he could come for a visit. The accused responded, "No not home". 12 At some time after this message the accused left the property. On the evening of 23 August a fire was seen in the general direction of the property. On 25 August it was reported that the house had been raised to the ground by fire. When police and fire officers attended the remains of the fire were cold. A human body, later identified as the deceased, was found in the premises with severe injuries to the skull. It was ascertained that the fire had been deliberately lit. 13 On 26 August the accused's son telephoned him to tell him of the fire. In the early hours of the next morning the accused came to the premises where his son resided and persuaded him to go with him. He was acting in an unusual manner. He spoke to his son about the Covert Land Army. At one time he admitted to his son that he killed the deceased because "he was coming back to break my neck". He said, "I killed him, he was a bad monster to kill, I killed him in the afterlife". He made reference to the text message that he had sent to Mr Bartlett asking him to control their pet monster. 14 On 27 August the accused spoke by telephone with a police officer who had been trying to contact him. When told about the fire, the accused denied having been at the premises since after having an argument with his brother on 22 August. Later that day a police officer went to where the accused was camping and saw him and his son. The accused said to the officer, "I want you to know something. I have killed a man, at least that's what they called him, to me he was a demon the fourth worst person on earth. I don't want you to tell anyone about this or they will lock me up in a mental hospital". There is a later conversation with another police officer that reflects the very disturbed mental state of the accused at the time. 15 Later that day the accused was interviewed by police but denied any knowledge of the killing. When released by police, the accused returned to his campsite. 16 On 18 September the accused's mother and his son attended at the campsite. The accused's behaviour toward his mother was unusual. He admitted killing his brother but said that he, the deceased, was evil when drunk. He said his brother was trying to get him out of the house. When asked by his mother why he did it when they were best mates, he replied," I did it with my bare hands". 17 Later that day the accused was arrested. He participated in a lengthy interview with police, during which he admitted killing his brother. In effect his account was that he acted in self-defence believing that his brother wanted to kill him. He said that he received a telephone call from the hotel threatening to kill him. Later his brother arrived at the property in his vehicle and crashed through the gate, which the accused had earlier fastened closed, then colliding with the accused's vehicle. He kicked in the door and threw the accused against the wall. They fought and the accused broke his neck. He then took an axe and "crossed" his brother on the head. The accused spoke of battling his brother in the afterlife. He denied having set fire to the house. The accused was arrested and charged with the murder of his brother. 18 The defence of mental illness arises where the accused proves that at the time of the killing he was suffering from such a defect of reasoning arising from a disease of the mind that he did not know the nature and quality of what he was doing or that what he was doing was wrong. Here the defence is that the accused was labouring under a delusion that his brother was intending to kill him and that it was necessary to do what he did in his own defence. It is submitted that this belief was a direct result of paranoid thoughts arising from his mental illness. 19 This contention is supported by both the psychiatrist retained by the Crown, Dr Brown, and that retained by the defence, Dr Westmore. Each of the psychiatrists prepared two reports. Neither was prepared to find the defence established on his or her initial assessment of the accused and the material with which they had been supplied. However, after receiving further material, both psychiatrists reviewed their earlier opinions. 20 In her initial report Dr Brown was not prepared to find that the accused had made out the defence of mental illness although she did accept that a partial defence based upon substantial mental impairment would be available under s 23A of the Crimes Act. However in her second report of 18 August 2008, having considered further material, including the text messages sent by the accused on the night of the killing and what he said to the police officer at the campsite, Dr Brown was satisfied that the defence was available. The material in the prosecution brief indicated to her a "paranoid line of thinking" that would have had the capacity to impair the accused's understanding of the wrongfulness of his actions. She gave evidence before me that she was confident in the correctness of her second opinion. As I have already indicated, the Crown has accepted the validity of her opinion. 21 In his first report Dr Westmore was unable to form any view as to the accused's mental state at the time of the killing without further material that he requested. The second report dated 14 April 2008 was prepared after he had obtained this information and deals with the issue of the mental illness defence. In the report Dr Westmore reviews a number of witness statements that contain material relevant to the accused's disordered state of mind. As a result of his further consideration, Dr Westmore concludes that the accused was suffering from a mental illness being probably a "bipolar affective disorder with psychotic symptoms". As I understand it, this is the same diagnosis as given by Dr Brown. Although Dr Westmore describes as "difficult" the question of whether that disorder affected the accused's behaviour at the time of the killing, he went on to conclude that the defence is available as is the partial defence under s 23A. It is of course not unusual that the same material supports both defences. 22 It is clear that both psychiatrists accept the probability that, by reason of his mental illness the accused formed the belief that his bother intended to kill him, even though there was no basis in reality for that belief. There was also the delusional belief that his brother could return from the dead. The mental illness would not only have deprived him of the capacity to control his behaviour, the basis of a defence under s 23A, but also rendered him incapable of knowing that what he did in relation to his brother was wrong. The accused's mental state at the time of the killing falls within the M'Naghten rules of mental illness. 23 It may well be the case that the accused would have seen any attempt at administration of physical restrain or control by his brother on the night of 22 August, which he normally would accept, as falling within his delusional belief that his brother intended him harm. 24 If I were instructing a jury in this matter I would be required to indicate to them the consequences of the available verdicts. However I do not believe that I need to refer to those matters in this judgment although I understand the consequences of a verdict of not guilty on the grounds of mental illness. 25 Having considered all the material placed before me, it is clear that the accused intentionally killed his brother intending to bring about his death. That finding makes him liable to be convicted of the crime of murder. However, having regard to the psychiatric reports and the material upon which the opinions of the psychiatrists are based, I find that the defence of mental illness is made out. Verdict: 26 The accused is not guilty of the crime of murder on the ground of mental illness. I order that the accused be deained in the custody of the Department of Corrective Services until released by due process of law. The Registrar is to notify the Minister for Health and the Mental Health Tribunal of the verdict and the orders made by the court. ********** 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.