New South Wales Supreme Court CITATION : R v COLES [2008] NSWSC 682 HEARING DATE(S) : 1-2 July 2008 JUDGMENT DATE : 10 July 2008 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J DECISION : Verdicts of not guilty by reason of mental illness CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Trial without jury - Murder and malicious wounding - Unanimous psychiatric opinion supporting special verdicts LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990 CATEGORY : Principal judgment CASES CITED : Fleming v The Queen (1998) 197 CLR 250 R v Winningham, unreported, NSWCCA 10 May 1995 PARTIES : REGINA - Crown Peter John COLES - Accused FILE NUMBER(S) : SC 2008/00002874 COUNSEL : T Hoyle SC - Crown P Winch - Accused SOLICITORS : Solicitor for Public Prosecutions - Crown Legal Aid Commission - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST MICHAEL GROVE J 10 July 2008 2008/00002874 - REGINA v Peter John COLES JUDGMENT 1 HIS HONOUR: Upon arraignment, Peter John Coles (the accused) pleaded not guilty to two counts of an indictment charging him respectively that on 5 November 2006 he murdered Janice Eileen Coles and maliciously wounded Gary Dangerfield. An election by the accused and the consent of the prosecutor to trial without jury has been filed. Before arraignment, I determined that there was no need for an inquiry into the fitness of the accused for trial and I published reasons for that determination which may be regarded as incorporated herein. 2 The whole of the trial evidence was put before the Court by the consent tender of documentation. In fact there has been no disputed issue between the Crown and the accused and, as a matter of practicality, it is common ground that the evidence establishes the elements of both offences necessary to be proved by the Crown and further establishes what is necessary to be proved by the accused in order to result in special verdicts of not guilty by reason of mental illness. 3 Although the parties are not in contest over any matter, I am obliged to include in this judgment a reference to principles of law which are applied and findings of fact which are made: Criminal Procedure Act 1986, s 133(2); Fleming v The Queen (1998) 197 CLR 250. The obligation does not extend to publishing a judgment in the same form as the transcript of a charge to a jury: R v Winningham, unreported NSWCCA 10 May 1995. 4 I find these facts. The accused is the son of the deceased Janice Coles. For some years she lived in a flat at Dee Why which was shared by her and Gary Dangerfield. They occupied separate bedrooms. The accused was a tenant of the Housing Commission in a flat at Manly but in a violent outburst he extensively damaged it as well as injuring himself, particularly injuring his hands. He was admitted to hospital for treatment to his hands and, no doubt, for observation concerning his mental state. After discharge from hospital he came to reside with his mother and Mr Dangerfield at Dee Why. He stayed for about ten months and in late October 2006 he returned to his flat in Manly. 5 On Saturday 4 November the occupants of the Dee Why flat had retired. Mr Dangerfield had fallen asleep whilst watching television in his bedroom. At about 12.30 am on Sunday he was awakened when Mrs Coles came into his room and told him that she had been stabbed by the accused who had entered the flat. Mr Dangerfield took Mrs Coles to her room and observed her left upper arm had been slashed and was bleeding badly. He went to the kitchen to get a cloth. He noticed a knife which he did not recognize lying on the bench. He returned to the bedroom with a cloth and a mobile phone. 6 While he tended to her wound Mrs Coles tried unsuccessfully to contact the accused's father. While this attempt was being made the accused entered the room, leaned across Mr Dangerfield and commenced stabbing his mother. Both of them shouted at him to stop but their cries had no effect. The accused was silent and Mr Dangerfield later described his appearance as "sort of like a robot, like he was in a trance, and his eyes looked glazed like he was in a trance". 7 Mr Dangerfield tried to restrain him physically and in a struggle the accused made a deep cut into Mr Dangerfield's nose which later required suturing. The accused, after stabbing Mr Dangerfield resumed stabbing his mother and Mr Dangerfield fled to seek help. 8 Janice Coles died as a result of the stab wounds which the accused perpetrated. I deduce from his actions that he intended to kill her. Making that deduction is fortified by what the accused later told police. I am also satisfied that it was the act of the accused which wounded Mr Dangerfield and that this act was accompanied by the requisite intention. 9 I turn to the issue of the accused's mental illness at the time of these acts. I apply the onus of proof upon him to the standard of probability. Having said that I should record the agreement of counsel that there is a unanimity of psychiatric opinion which, if accepted, establishes that the accused at the time did not, through disease, disorder or disturbance of mind appreciate that his acts were wrong. Given that unanimity of opinion by experts in the field it would, I consider, be perverse to reject it and the stance by counsel is entirely appropriate. 10 After the stabbings the accused made his way back to his own flat where at 3.50 am police attended and arrested him. Later in the morning he was interviewed. He told police that he had taken a knife with him and travelled by bus from Manly to Dee Why. He entered his mother's flat through the front door which he had found to be unlocked. In substance and in some detail he confirmed the actions which constituted the murder charged in the indictment. He said that he had stabbed his mother because he loved her. However, he said that he had just had "a wrestle" with Gary (Mr Dangerfield) because "he tried to stop me". 11 As I commented in dealing with the question of fitness for trial of the accused, many of his responses did not appear rational but, in the light of his mental state, it would be futile to seek to gauge his statements against standards of rationality. 12 The accused has a long history of mental illness and had been diagnosed with schizophrenia as long ago as when he was aged 18 years. He is now 38. He has from time to time been admitted for psychiatric care. He has a regime of medication and he claimed to police when they interviewed him that he was taking what he was supposed to. 13 I am unable to determine whether that claim was true. Whatever the truth of this situation I am satisfied that there was a florid episode of the accused's mental illness that was affecting him at the time of the stabbings. The reason for my reservation about his claim to have kept to his drug regime is derived from a report by Ms Mary Beth Allen, a GP Liaison and Clozapine Coordinator of the Northern Beaches Mental Health Service. She reported that she became involved with the accused and his mother from June 2005. She noted that the accused was "not interested" in being involved with the Mental Health Service and that his mother "supported this". 14 Ms Allen became aware that the accused was reducing his prescribed Clozapine dose as his mother was attempting to improve his mental health by giving him "Goji" juice with other homeopathic treatments and diet. Ms Allen encountered difficulty in maintaining contact with the accused during the time he was living with his mother at Dee Why. Messages were left and calls not returned. Ms Allen formed the opinion that Mrs Coles believed that fostering her son's spiritual and physical health through homeopathic treatment was far better than psychiatric treatment including adherence to the prescribed Clozapine dose. 15 A Dr Chan was associated with Ms Allen in attempting to supervise the accused. In September 2006 Dr Chan noted a change in his mental state but numerous attempts to have the accused attend for psychiatric assessment and review were unsuccessful. Some contact was made with Mrs Coles who expressed a lack of understanding as to why psychiatric assessment should take place as she felt her son was "doing fine". 16 Nevertheless the accused was seen by Dr Chan and in fact he thought there was some improvement, in the sense that his presentations were not considered unusual, after the accused moved to his Manly flat. 17 The Mental Health Service was aware that the accused had a history of self harm and verbal aggression but they perceived no indication that he might harm his mother and why he attacked her remains a mystery buried in the thought processes of the accused's disordered mind. 18 I have earlier adverted to the unanimity of psychiatric opinion concerning the condition of the accused at the time of the killing and wounding. This unanimity is demonstrable in some extracts from the various reports. Each practitioner is a well known and highly qualified forensic psychiatrist. 19 Dr Bruce Westmore first saw the accused on 19 April 2007 and he reported: "At the time I prepared this report, I could find no obvious logical or rational explanation for his actions towards his mother. He talked about her becoming old and becoming increasingly interested in religion and he said, 'She had to go'. At a very superficial level he appears to have insight and understanding about the wrongness of his actions but his affect was completely incongruous to those verbal statements and that is what I think reflects his abnormal thought processes and ultimately his mental illness. I am of the view that on the balance of probability Mr Coles was suffering a disease of the mind (a schizophrenic illness) at the time he killed his mother. I believe his illness totally deprived him of his capacity to know or understand at a moral level that he should not have completed the act. I was not able to get from him a history, psychotic or otherwise, to explain why he may have killed his mother and the incongruity of his statements indicating he loved his mother but killed her because she had to go are noted. The sudden impulsiveness and apparent unpredictability of the act obviously has prognostic implications regarding his future dangerousness and he will in my view require long term, perhaps indefinite, psychiatric care and supervision. He appears to have a chronic, perhaps treatment resistant, mental illness". 20 Dr Olav Nielssen saw the accused on 31 May 2007. Both he and Dr Westmore saw the accused who was at the time being detained in Long Bay Prison Hospital. Dr Nielssen reported: "Mr Coles reported hallucinations of voices warning him that he was in danger and that his mother was in some way involved. He has experienced hallucinations of voices during previous acute episodes of mental illness and reported hallucinations in the period after his reception to gaol. I believe Mr Coles lethal assault on his mother was the direct result of acute symptoms of the mental illness schizophrenia, which is recognised in law to be a disease of the mind. At the time of the assault he was affected by a defect of reason in the form of the persecutory belief that he was in danger and that his mother was somehow involved. Mr Coles capacity for logical thinking was grossly impaired to the extent that he was unable to reason with composure about the consequences of his actions or realise that his actions were morally wrong." 21 Dr Stephen Allnutt saw the accused at the request of the Crown initially on 8 December 2007, and again on 22 May 2008. He noted that the accused had suffered from mental illness for a number of years and, following his second visit, he reported: "In my opinion, at the material time that the alleged offence occurred, the defendant was suffering from a defect of reason as a consequence of a psychotic mental state active at the material time of the alleged offence. Psychosis is a mental illness that by its very nature is recognisable by the defects in the reasoning process that the disease process produces disabling an individual in his capacity to make rational interpretations of his environment or to be aware that he is in fact having difficulty in making rational interpretations of his environment so that at the material time that the alleged offence occurred, I believe the defendant suffered a defect of reason. …. (and) However, I am of the view that his disease of the mind did cause a defect of reason of a nature and severity to the extent that he was unable to know the nature and quality of his actions. The material provides strong evidence for a significant disorganisation in his thought processes complicated by delusional beliefs relating to his mother. He describes a belief that he needed to defend himself against her otherwise he was going to die, as well as holding the belief that his mother wanted to die. His description of his beliefs in this regard are difficult to follow which, in my view, are as a consequence of significant impairment in his capacity to reason about matters in regard to his mother at the material time and to reason about matters with regard to his intent to stab his mother at the material time; such that he would have been incapable of reasoning about the matter of wrongfulness with any degree of sense and composure". 22 Had the proceeding been heard in a trial with jury, there is a statutory obligation to inform the jury of the legal and practical consequences of a special verdict and, in reaching my conclusions, I have borne those matters in mind. 23 Having considered the evidence therefore I find a special verdict on each count of the indictment of not guilty by reason of mental illness. 24 I note that no application is made for release from custody pursuant to the power vested by s 39 (2) of the Mental Health (Criminal Procedure) Act. 25 Consequently I must order that the accused be detained. The statute provides that such detention should be "in such place and in such manner as the Court thinks fit" and I invite submissions from counsel as to the terms of the order which, when made, is to be notified to the Mental Health Tribunal by the Registrar of 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.