R v John William MILLINGTON [2008] NSWSC 813

New South Wales Supreme Court

CITATION : R v John William MILLINGTON [2008] NSWSC 813

HEARING DATE(S) : 1 August 2008

JUDGMENT DATE : 8 August 2008

JUDGMENT OF : Fullerton J

DECISION : Not guilty by reason of mental illness.

CATCHWORDS : CRIMINAL LAW - murder - not guilty due to mental illness

LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990

CATEGORY : Principal judgment

PARTIES : John William Millington The Crown

FILE NUMBER(S) : SC 2008/5871

COUNSEL : P Winch P Barnett SC (Crown)

SOLICITORS : K Richardson Director of Public Prosecutions (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

FULLERTON J

8 AUGUST 2008

2008/5871 R v JOHN WILLIAM MILLINGTON

JUDGMENT 1 HER HONOUR: On 21 September 2007 John William Millington was charged with the murder of Hille-Heidrun Ellicott. On 20 September 2007 the deceased was found by her husband in the family home at Maitland having sustained fatal gun shot wounds to her chest and head. 2 On 3 June 2008, with the consent of the Crown, Mr Millington's trial was set down without a jury pursuant to s 132 of the Criminal Procedure Act 1986. 3 On 1 August 2008 he was arraigned before me and pleaded not guilty to the murder of Hille-Heidrun Ellicott on the grounds of mental illness as provided for in s 22 of the Mental Health (Criminal Procedure) Act 1990 (the "Mental Health Act"). 4 The sole issue in the trial before me was whether I was satisfied he should be acquitted of murder on the grounds of mental illness pursuant to the provisions of s 38 of the Mental Health Act. No oral evidence was called in the proceedings by either the Crown or Mr Millington. 5 By consent and without objection their respective cases were the subject of the joint documentary tender of a volume of material comprising the statements of investigating police, including a recorded interview with Mr Millington conducted on 21 September 2007, various forensic and scientific evidence and statements from family members and friends of Mr Millington and the deceased. Given the nature of the proceedings, however, the critical documents were the reports of Dr Olav Nielssen dated 4 March 2008 and 24 July 2008, tendered on behalf of Mr Millington, and the report of Dr Greg Steele dated 29 May 2008, tendered on the Crown's behalf. 6 These reports reflect a uniformity of opinion that when Mr Millington shot and killed the deceased, he was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. 7 Consequently, as provided for in s 38 of the Mental Health Act, I found him not guilty of the murder of Hille-Heidrun Ellicott by reason of mental illness and ordered his detention at the Parklea Correctional Centre, or such other place as he may be detained in accordance with Part 5 Division B of the Mental Health Act until released by due process of law. 8 After entering the verdict of not guilty by reason of mental illness, I indicated that I would publish reasons in support of that finding. The balance of this judgment constitutes those reasons. The events of 20 September 2007 9 According to the account Mr Millington gave to police when he voluntarily presented at the Maitland Police Station on 21 September 2007 and admitted to shooting the deceased earlier that evening, he had returned to Maitland from Dunedoo in Queensland earlier that day. He had apparently been residing in Queensland for a few months as was his pattern over some years. A short time after his arrival, he decided to retrieve a rifle which he bought a year earlier for the express purpose of killing the deceased and her husband, and which he had hidden in the ceiling of a shed where he had been residing before leaving for Queensland, in order to see whether it was still in functioning order. After confirming that it was he drove to the deceased's home, with the loaded rifle with the intention of killing either the deceased's husband, Raymond Ellicott, or the deceased, and then hanging himself. He drove past the Ellicott's house and parked his car close by. He entered the house through the back door using the key which the Ellicotts were known to leave in the door, and believing no one was at home, waited for approximately ten to fifteen minutes for them to arrive. 10 Mr Millington was not aware that Mr Ellicott was asleep in the master bedroom. The deceased was at the Maitland Public School Concert which was being held at the Maitland Town Hall. When she arrived home she apparently did not notice Mr Millington despite passing within a short distance of where he was standing. However, on noticing him, according to Mr Millington, she walked up to him and said "Hello". He did not respond but aimed and fired the rifle striking her in the chest. The force of the gunshot threw her onto her back. Believing that the shot was not fatal, he then shot her a second time, this time in the head. He then dragged her away from the back door and into the dining room and left through the back door. 11 On realising that he was not wearing gloves and that he would have left his fingerprints within the house, he panicked and tried to re-enter the house by smashing through a glass panel adjacent to the back door. Once inside the house he wiped down the walls with his Drizabone coat and then left a second time.