R v WATERLOW, Antony [2011] NSWSC 326

Supreme Court New South Wales

Medium Neutral Citation: R v WATERLOW, Antony [2011] NSWSC 326 Hearing dates: 12 April 2011 - 13 April 2011 Decision date: 19 April 2011 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On each count, not guilty by reason of mental illness. Catchwords: CRIMINAL LAW: trial by judge alone - murder (2 counts), recklessly inflict GBH - defence of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 - ss 39 and 44 Cases Cited: The King v Porter (1936) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) Antony Waterlow (accused) Representation: Counsel: M Tedeschi QC (Crown) P Hamill SC (accused) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) John Meadley - Armstrong Legal Solicitors (accused) File Number(s): 2009/264802

Judgment 1The accused, Antony Waterlow, has been tried before me, sitting without a jury, for the murder of his father, Nicholas Waterlow and his sister, Chloe Heuston, and also for the reckless infliction of grievous bodily harm upon his niece, a child whom I shall not name. The offences are alleged to have been committed in the course of a violent incident on 9 November 2009. The accused has pleaded not guilty to each charge but the only issue is whether he was mentally ill, in the sense in which that expression is used in the criminal law, at the time. 2In relation to the incident and the investigation of it, I have been provided with a large volume of documentary material comprising the statements of lay witnesses and of police, the results of a crime scene investigation, some forensic biological material, autopsy reports in relation to each of the deceased, and a medical report concerning the child. I also have the benefit of a comprehensive summary of this material. However, given the limited issue which I must determine, it is unnecessary to refer to it in any detail. 3This evidence establishes that, in the early evening of 9 November 2009, the accused and his father went to the home of his sister, Ms Heuston, at Randwick. Ms Heuston was married with three young children. Her daughter, the child who was injured, was not quite 3 years old. Her husband was overseas at the time. 4Shortly after arriving at the home, the accused seized a kitchen knife and attacked his father and his sister. It appears to have been a frenzied attack. Autopsy reports disclose that each of the victims had suffered multiple stab wounds, some of which penetrated vital organs. In the course of the incident the accused caused a laceration to the child's cheek and neck. There is no evidence that he intended to do so. The Crown accepts that those injuries were caused during his attack upon her mother. 5It is not in dispute that, in respect of the accused's father and his sister, the elements of murder are made out. In any event, the evidence satisfies me beyond reasonable doubt that he stabbed each of them deliberately, intending to kill or, at least, to inflict grievous bodily harm. Nor is it in dispute that, in relation to the child, the elements of reckless infliction of grievous bodily harm are made out. She suffered a significant laceration to the right cheek, extending to the right side of the neck, which was repaired in an operating theatre at Sydney Children's Hospital. The laceration was dangerously close to major blood vessels. She is left with a permanent scar on her right cheek. I am satisfied beyond reasonable doubt that her injury amounts to grievous bodily harm and that it was inflicted recklessly, as the law understands that term. 6The accused went into hiding after the incident and was not arrested until 27 November 2009. I shall describe what transpired at the time of his arrest later in these reasons. 7The terrible events of 9 November must be understood against the background of the accused's history of mental illness, to which I shall now turn. This is also to be found in a volume of material comprising statements of people who had had contact with the accused over the years, together with medical records and expert reports. Again, I have been supplied with a helpful summary of this material and it is not necessary to recite it in detail.