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. 12 Mr Millington then drove to a neighbouring town where he left the rifle lying in grass near a bridge. He scattered the remaining bullets nearby. A 30-30 Winchester lever action rifle and three rounds of ammunition were located by police at this location on the morning of 21 September 2007. A ballistics examination of the weapon, and a comparison with the shells recovered at the deceased's home, confirmed that this was the murder weapon. 13 After abandoning the rifle and the ammunition Mr Millington told police he smoked some marijuana in order to try and calm down and then lay in his truck for some time before he drove to the Maitland Police Station where he confessed to the murder. Before being formally interviewed, but after indicating that he wanted to confess to the deceased's murder, he gave this account to police as to his motives for the killing: "I've known them since I was 14 years old. They have abused me, mentally tortured you know. Ray always said to me what do you do with your enemies? Make them your best friend. That's what he said. Ray has done this to me for years. Hille did it too. They always run me down. They were always putting me down. My mum and dad too. They abused me like that all the time. This abuse went on for years." 14 He went on to give an account of the Ellicotts feeding him putrefied food of various forms and detailed, in explicit terms, firing the rifle at the deceased at close range to her chest and then her head. He then provided police with a diagram as to where he had deposited the rifle and ammunition and informed police that the clothes he was wearing were the clothes he was wearing when he committed the murder except for a Drizabone coat which he had hung in the shower at his home because it had blood on it. 15 I pause to emphasise that there is absolutely no substance or foundation of any kind for Mr Millington having suffered any mistreatment at the hands of either the deceased or her husband. To the contrary, there is abundant evidence that in their dealings with him as a young adolescent, and for some years thereafter, they were caring and generous people who provided sustenance, shelter and support for him in their home. As will be apparent from the assessments of both Dr Nielssen and Dr Steele, to which I will refer later, Mr Millington's delusional beliefs for a period of time leading up to the murder, at the time of the murder and to a lesser extent, still present today, source from a recognised and entrenched mental illness from which he suffers. 16 After speaking with the police informally in the way I have summarised, Mr Millington participated in a lengthy and formally recorded interview where he gave a further explanation for why he killed the deceased and a detailed account of his thoughts and actions immediately before, during and after the shooting. 17 Having viewed the recorded interview at counsel's invitation, and giving full weight to the expert views of the forensic psychiatrists who have also reviewed it as part of their assessment of Mr Millington for the purposes of these proceedings, I am left in no doubt that he was in a floridly psychotic state on the night of 20 September 2007 despite being capable of reliably recounting the events of the evening and openly confessing to a murder. Mr Millington's relationship with the deceased 18 The deceased, Hille-Heidrun Ellicott, was 65 years of age and resided at her matrimonial home at Maitland at the time of the murder. She had lived at this address with her husband, Raymond Ellicott, for the past 45 years. The deceased and her husband had four children. 19 Mr Millington was 42 years of age at the time of the offence. Up until a few months prior to September 2007 he resided in Maitland with his parents and his son. 20 According to the statements of his sisters, Ms Wendy Franklin and Ms Carolyn Wells, Mr Millington moved out of their family home at about the age of 14, and went to live with the Ellicott family. This was coincident with him leaving school and, it would appear, coincident with him coming into conflict with his parents as a result of what his sister described as a lifestyle which "was not in tune with the rest of the family". Apparently his parents did not drink or smoke and Mr Millington constantly rebelled against the discipline his parents sought to impose on him. This was a source of conflict in the family and provides the context in which he left home, and became included as an extra member of the Ellicott's household. 21 Ray Ellicott described Mr Millington as a young boy playing with his four sons and progressively becoming included as one of the family to the point where he effectively moved in, camping out in the shed. He said he even gave him pocket money when he went to town with his sons. After Mr Millington left school Mr Ellicott employed him as a grave-digger in the district. He could not recall any enmity of any kind in the course of employing him or otherwise. 22 Mr Millington started smoking cannabis from about age 14. His drug use escalated uninterrupted from that time and has graduated to include the regular use of amphetamines from about age 19 which intensified during a relationship with a woman in late 1989 when his dependence on the drug required intervention. The concerted efforts of members of his family to have him admitted to a rehabilitation centre failed, as did his own attempts to address his poly-substance abuse and commit to a course of residence-based rehabilitation. It would appear that he also regularly abused alcohol, drinking on a daily basis and on regular occasions in copious quantities. 23 Mr Millington has worked in a number of jobs after moving in with the Ellicotts and working with Mr Ellicott as a grave-digger. He then left Maitland and in about 1985 he worked as a fisherman on a trawler at South West Rocks. Before returning to his parents' home he commenced working in his father's bee-keeping business in Thargomindah, Queensland. While he was regarded as a hard worker, he had a reputation as a loner and a drug user. In 2002 a fellow apiarist was concerned enough about what he described as Mr Millington's strange behaviour that he contacted Mr Millington's family. Mr Millington was later flown by the Royal Flying Doctor Service from Thargomindah to Toowoomba Hospital where he was diagnosed with a drug-induced psychosis. I will return to consider the results of that hospital admission when dealing with Mr Millington's psychiatric profile. 24 I have already referred to the evidence of Ray Ellicott to the effect that Mr Millington was regarded as "one of the family". He went on to say that the deceased cared for him "like he was her own son". Mr Millington's sisters also confirmed their understanding that the deceased had maternal feelings for their brother, particularly during the years when he resided with her and her husband and sons, and that their brother, as a teenager, had expressed affection and respect for Mrs Ellicott. 25 It appears however that since the mid 1980's Mr Millington was not in regular contact with any member of the Ellicott family having drifted away from the district and having been, to an extent, reunited with his own family. Mr Ellicott's last recollection of spending time with him was some time in 1999 or 2000 when they met accidentally in the Metropolitan Hotel in Maitland. According to Mr Ellicott, Mr Millington did not seem to hold any animosity towards him or his wife, as they drank together and spoke casually about their lives. Although Mr Millington gave a strikingly different impression of that meeting, again quite clearly explained by his illness, there is nothing to suggest that Mr Millington had any contact with Mrs Ellicott for a considerable number of years before September 2007. Mr Millington's mental health 26 It would appear that issues relating to Mr Millington's mental health first surfaced in 2001-2002 when, according to his sister, Ms Franklin, he seemed to her to suffer a mental breakdown. As I have already noted, in May 2002 he was flown by the Royal Flying Doctor Service to Toowoomba Hospital where he was diagnosed with a drug-induced psychosis. 27 Following his release, according to his sister, Mr Millington expressed a range of paranoid beliefs, including that he was wanted by the police, that he was being followed, that his car was implanted with a tracking device and that the fuel and oil in his petrol tank had been tampered with. On one occasion, when he agreed to meet with his sister, he issued her with very specific instructions that she must park within 27 steps of the intersection. On that occasion he arrived wearing sunglasses and with a hood over his head despite the fact that it was evening. In June 2002, upon being urged by his sister and his parents to seek help, Mr Millington checked into the psychiatric unit of the Maitland Hospital. The hospital notes record that he presented in a psychotic state. 28 From 2002 up to the commission of the offence in September 2007 Mr Millington was admitted to various hospitals in Queensland, New South Wales and the ACT. The admission in the ACT was as a result of Mr Millington presenting himself to police complaining that he was being followed. He was admitted to hospital under the Mental Health Act but absconded from the ward. 29 According to Dr Nielssen's report he spent ten days at the James Fletcher Hospital near Maitland between 13 April 2004 and 23 April 2004 after developing a belief that the woman he was living with at the time was secretly filming him. 30 Mr Millington was again presented to hospital in June and July 2006 following the self-amputation of his right ring finger. He remained hospitalised for three weeks. He told doctors that he cut his finger off with an angle grinder in order to make amends to his sister whom he felt he had wronged in some way and to indicate to his family how sorry he was for his behaviour. During that admission it would appear that he voiced, for the first time, his beliefs and suspicions about the Ellicotts as well as his desire to kill them. During one hospital visit from his sister Mr Millington stated that Ray Ellicott ruined his life, got him to use drugs, and fed him undigested peas and corn they retrieved from their faeces. Mr Millington also told his sister that the hospital staff told him that if he wanted to be released from hospital he had to stop saying that he wanted to murder Mr and Mrs Ellicott. He was released back into his parents' care. It would appear that with their best intentions and the commitment of his sisters that he was difficult to manage and resistant to medical treatment. 31 In October 2006 Mr Millington was again admitted to hospital. On this admission a Community Treatment Order was imposed which continued until 17 April 2007. Pursuant to this order Mr Millington received injections of an antipsychotic medication, intended to address his illness. The Community Treatment Order was renewed to take effect from 17 April 2007, however he voluntarily moved to Queensland and his treatment was discontinued. Dr Nielssen also noted that the Hunter Valley Mental Health records reveal that Mr Millington was receiving injections of a relatively low dose of an antipsychotic medication by injection fortnightly and orally on a daily basis at this time (and it would seem intermittently in the past although he was apparently not always compliant with this regime). The last injection was given in May 2007. Psychiatric assessments for the purposes of trial 32 On 7 December 2007, at the request of Mr Millington's legal representatives, Dr Olav Nielssen interviewed him on the question of his fitness to enter a plea to the charge of murder. During the course of that interview he denied being mentally ill or experiencing symptoms characteristic of schizophrenia, such as experiencing visual or auditory hallucinations, believing that his thoughts were being broadcast or being able to communicate by telepathy. Dr Nielssen found his responses inconsistent with the statements he made at other times during the interview, and at stark variance with his various hospital admissions and the information supplied by his family. 33 When asked about the offence Mr Millington informed Dr Nielssen that "there were reasons I did it…it goes back a long way…it took me 25 years to work out what was going on". He further stated, "I didn't intend to murder her… I was there to murder Ray… I'm sorry I shot Hille even though she was in on it." He told Dr Nielssen that "I didn't realise he was feeding me shit on hamburgers… he thought it was a big joke. They cut a cancerous growth off a dead man and fed it to me." According to Mr Millington, Mr Ellicott had a "master plan" pursuant to which he, Mr Millington, would commit suicide. He also told Dr Nielssen that on the last occasion that he met with Mr Ellicott at the Maitland Hotel in 1999 or 2000, Mr Ellicott said strange things to him after which he worked out Mr Ellicott's master plan. 34 Dr Nielssen diagnosed Mr Millington with chronic schizophrenia of a paranoid type together with a substance abuse disorder and, in light of Mr Millington's denial of having a mental illness or appreciation for what he has done, deemed him unfit for trial. This report was served on the Office of the Director of Public Prosecutions (ODPP). 35 On 29 May 2008, Mr Millington was interviewed by Dr Greg Steele at the request of the ODPP. He was asked to address the question of whether Mr Millington was fit to be tried and, if so, whether the defence of mental illness under the Mental Health Act was available to him. During that interview Dr Steele found that: "The offender's mood was an amalgam of boredom with gaol, apprehension about the future, regret, and remorse for the crime he had committed and he was particularly sorry that Hille Ellicott had suffered the way she did, but was also appropriately castigating himself for his own behaviour". 36 Mr Millington also readily admitted to shooting Hille Ellicott, but said that he was insane at the time for having the beliefs he had about her and Ray Ellicott. 37 In Dr Steele's view Mr Millington was fit to be tried, a view with which Dr Nielssen, in a later report, did not disagree. 38 That said, as I have made clear, both doctors were of the independent but shared view that Mr Millington had available to him a defence of mental illness under the Mental Health Act. On that basis I found Mr Millington to not be criminally responsible for the deceased's death. 39 In Dr Nielssen's view the diagnosis of chronic schizophrenia is firmly based on Mr Millington's presentation at interview, his fixed delusional beliefs regarding the Ellicotts, corroborative information from medical records and his sister's observation of his symptoms since 2001. In doctor's view, the diagnosis of a substance abuse disorder as a secondary diagnosis is based on Mr Millington's account of hazardous drinking and long standing abuse of drugs well recognised in the literature as having harmful psychological effects. According to Dr Nielssen, as part of his chronic paranoid schizophrenic illness in the 12 months or so preceding the shooting, he developed delusional beliefs that Mr and Mrs Ellicott were involved in a conspiracy lasting almost 30 years which had as its aim both to motivate him to commit suicide but also to "set him up so that others would hate him". This delusional belief, which was held with strong conviction, eventually compelled Mr Millington to act on these beliefs because of his chronic paranoid schizophrenia. Whilst he was aware of the nature and quality of his act in firing the rifle at the deceased at close range, as a result of his fixed delusional belief and impaired capacity for logical thinking, he was unable to recognise that his actions were wrong. 40 Whilst noting a good response to antipsychotic treatment and an improvement in his mental health, Dr Steele was of the view that a number of Mr Millington's delusional beliefs were not amenable to psychotropic medication. He also diagnosed him as suffering from a chronic paranoid schizophrenic illness. Thus it would appear that because this is the first time in Mr Millington's psychiatric history that he has been drug free, adequately medicated and his behaviour controlled because of the custodial environment in which he is housed, he has a growing insight into the fact that he has a mental illness and that his mental illness will benefit from medication. While he also regards himself as having been mentally unsound at the time he committed the offence he still harbours the belief that the Ellicotts had conspired against him. Dr Steele reports that the conviction with which he holds those beliefs has reduced but a number of delusional beliefs have not as yet proved amenable to psychotropic medication. For that reason he is likely to be treated as a forensic patient in the foreseeable future. 41 I well appreciate that these remarks do little to ameliorate the unimaginable grief that the Ellicott family has suffered as a result of the senseless death of a beloved wife, mother and grandmother. I accept that anger and even a desire for revenge may surface from time to time. Were Mr Millington to have been responsible as a matter of law for his conduct on the night of 20 September 2007 he would have been punished as a criminal offender. However, because of his mental state at the time he discharged the rifle, and because in our system of justice only the mentally sound are punished, he will instead be subject to the control of a tribunal constituted under the Mental Health Act, a body that is charged with the statutory task of seeking to achieve a balance between an individual's right to treatment, protection and care when they suffer from mental illness, and the interests and rights of the community to safety and protection. 42 In the special facts of this case that is the way that I am satisfied that justice has been done under the law. ********** 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. 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