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. Background 8The accused was 42 years old at the time of these offences, and is now 44. He is the eldest of his parents' three children, and his surviving sibling is his younger brother. His mother died of cancer in 1998, and his father subsequently formed another relationship with a woman who remained his partner until his death. I have evidence of the accused's upbringing, education and employment, which need not be examined for present purposes. He had had several intimate relationships with women, but never a live-in relationship. He has no children. At the time of the offences he was living in a boarding house at Stanmore. 9There is no doubt that he has suffered from paranoid schizophrenia. So much is apparent from all the medical material in evidence. Not long after he was taken into custody, he was examined by Dr Matthew Hearps, who provided a report to the Mental Health Review Tribunal. The history he provided to Dr Hearps suggests that the first symptoms of the disease appeared about 10 years before the offences. He described having been subjected to "harassment". Apart from believing that people were verbally abusing him, he said he said that he suffered an "internet based campaign of harassment", which was worldwide and directed to the destruction of his reputation. He came to believe that other people were controlling him through the internet, and said that he experienced other people's thoughts in his mind. He described hearing voices, male and female, which mimicked members of his family and made derogatory comments about him. He told Dr Hearps that the thoughts and the voices "impelled" him to commit suicide. He described the harassment as "a game", which was undertaken for the amusement of others but was "torture" for him. 10This history is borne out by records of his attendances upon medical practitioners, primarily at St Vincent's Hospital in Sydney, between 2004 and 2009. He consistently described delusional experiences of a paranoid kind, some of them involving family members. In 2006, while he was in London, he saw a psychiatrist, Dr Campbell. Dr Campbell reported a history suggesting the development of a paranoid psychosis from around 2000, when he became convinced "that his family were conspiring against him and mainly his sister had mounted a campaign through the internet ...". 11Dr Campbell wrote that he "quite clearly described second and third person auditory hallucinations about a number of people whom he said were imitating the voice of his brother, sister and other members of his family ... the campaign had been started by his sister to bully and scapegoat him, but it had now become outside their control by persons unknown, but they were trying torture him, destroy him and drive him mad. He felt like the people orchestrating this had a manual for torturing and abusing someone." 12There is evidence of his paranoid thinking over the years leading up to the offences, together with behaviour on his part which was variously bizarre, aggressive, threatening or intimidating. This was directed to his father, sister and brother, to some of his friends and acquaintances, and on occasions to strangers. The detail of this evidence need not be examined. Of particular importance are the statements of a friend of the accused, Ms Gaye Bell, who could describe her observations of him over a period of some years, and the records of his contact with psychiatrists and other health professionals from 2004. 13On an occasion in 2007 the accused threatened to kill Ms Bell, telling her that he blamed her for everything in his life. Significantly, however, Ms Bell was of the view that, over the years she knew him, the accused laid the blame for what was happening to him on his father and sister. Certainly, there were recurrent occasions when he behaved in an aggressive and threatening manner towards them and towards his brother. On one occasion he was physically violent to his brother, and he threatened to kill all three of them. Because of his behaviour, the situation was reached where his father and sister would not be with him alone. His father would meet him only in public places or when other people were around, and his sister would see him only when he was in the company of her husband or their father. 14Late in 2006, after the accused had returned to Sydney from London, his sister referred him to the Caritas Mental Health Service at St Vincent's Hospital. In the remaining months of 2006 and throughout 2007, there were several occasions upon which his father, sister and brother expressed their concern to psychiatrists in that Service about his aggression, as did Ms Bell. More than once over that period consideration was given to detaining him as an involuntary patient, but that action was never taken. 15Of course, at all times, the accused's family was concerned about him and wanted him to receive appropriate treatment. However, it is apparent from what he said to health professionals that this was not how he saw it. On one occasion, he said that his family had "labelled him schizophrenic" and that it would "play into their ideas" about him. On another occasion, he described his family as manipulative and as wishing to "pathologise" him. He said that his father, in particular, had on a number of occasions tried to trick him or force him to see a psychiatrist and had threatened him with being scheduled. He was resistant to treatment over this whole period and, especially, refused to take anti-psychotic medication. Therein lies this tragedy. Mental Illness 16As I have said, the only issue which I must decide is whether at the time of these offences the accused was mentally ill, so as not to be responsible in law for his actions. He bears the burden of establishing that defence on the balance of probabilities. The defence is made out if I am satisfied that, more likely than not, at the time of the offences he was suffering from a mental illness such that he did not know that what he was doing was wrong. 17The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. Although couched in the language of a past generation, it would be difficult to find a more lucid explanation of it. Speaking of the accused in that trial, His Honour said (at 189-90): "... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." 18On this issue I have the benefit of the reports of three respected forensic psychiatrists, Dr Olav Nielssen, Dr Bruce Westmore and Dr Rosalie Wilcox. Dr Nielssen and Dr Westmore were engaged by the accused's solicitors, and Dr Wilcox by the Crown. Each of them interviewed the accused in custody and reviewed the background material to which I have referred. All of them concluded that the defence of mental illness is made out. 19These psychiatrists saw the accused after he has been in custody for some time and had been under treatment in the Long Bay Prison Hospital. There had been some improvement in his condition and he displayed a measure of insight into it. The history he provided to each of them of his psychiatric symptoms was broadly consistent with that he had given to Dr Hearps. He also gave a history of abuse of alcohol and, to a lesser extent, cannabis, which might have exacerbated his symptoms from time to time. However, his substance abuse does not appear to be relevant for present purposes. 20Importantly, he provided a history of delusions about his family. He told Dr Nielssen that he was angry towards members of his family because he believed that they had instigated a conspiracy to ruin his life. He thought that they had wanted to make him "a scapegoat", and that they were "heavily involved" in people accessing his brain and controlling his thoughts by secret technology. To Dr Westmore he said that he used to hear the voices of people mimicking their voices inside his head, and at other times the voices of those people would tell him that his family "were behind it". To Dr Wilcox he said that he came to believe that there was a campaign to make him kill himself or that someone was going to murder him, and he believed that his family was behind that campaign. He thought that his family had devised "a game of harassment", leading eventually to his death, which everyone could play, trying to make him commit suicide. 21To each of the three psychiatrists, the accused said that he could not remember the attack upon his father and sister, and he appeared to have only a patchy memory of the circumstances surrounding it. All the experts accepted this lack of memory as genuine. Dr Westmore and Dr Wilcox explained that it was the likely result of the acute trauma and the high level of arousal he experienced at the time. 22He told Dr Nielssen that, after he and his father arrived at his sister's house, he heard the two of them having a private conversation in which something was said which conveyed to him that they could take his life. He remembered shouting to them, "What's going on? Why are you in my head?" He does not remember either of them saying anything in response. He gave a similar account to Dr Westmore, to the effect that his father and sister said something conveying that they could take his life. He added that he thought that they were "starting on harassing me the moment I came through the door." 23He told Dr Wilcox that he thought he heard his father and sister "talking about him again." He thought he heard a voice telling him to kill his family in order to be freed of the harassment and of the voices. He just wanted it to be stopped and to be left alone. He believed that at any moment they could kill him, not by a physical assault but through their capacity to control his mind, causing his death by an indirect method such as a heart attack. 24When asked by Dr Wilcox why he went into hiding, he said that he must have realised that something bad had happened, but he was hearing voices all the time and was frightened because he thought he was going to be murdered. Certainly, when he was arrested he was in a delusional state. He was holding a steak knife to his throat. He asked the police what the situation was with his father and sister, and Detective Senior Constable Gilbert told him that they were both dead. He expressed his concern about going to jail and his fear of being killed. He then recounted to police his long standing belief that he was being harassed by people using technology that was able to track other people, and then to send messages through computers or phones designed to intimidate and harass the receiver to the point where the receiver eventually commits suicide. He described it as a "world wide game" with "high money stakes". He asked the police to shoot him in the head. Fortunately, he was persuaded to drop the knife and was arrested without incident. 25Clearly, the accused's attack upon his father and sister was without any rational motive and was the product of his mental illness. The injury to the child was inflicted during that psychotic episode and, no doubt, was caused by a blow with the knife intended for her mother. All three forensic psychiatrists diagnosed him to be suffering from paranoid schizophrenia. As I have said, applying the requisite legal test, all three supported the defence of mental illness. 26Dr Nielssen expressed his conclusion in this way: "Mr Waterlow had never received treatment with antipsychotic medication or experienced a remission from symptoms after treatment, and hence was in his first episode of psychosis. The first episode of psychosis is known to be a period of greatly increased risk of homicide and serious violence, and the risk appears to be even greater in people who have had a very long duration of untreated psychosis. The most common reason for homicides by people with psychotic illness is the belief that they are in immediate danger from the victim, and the second most common reason is the delusional belief that the victim has caused the person some form of serious harm. I believe Mr Waterlow has the defence of mental illness available to him. He has a chronic schizophrenic illness, which is a disease of the brain that produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. His illness produced a defect of reason in the form of the delusional belief that his family and other people were involved in a conspiracy to ruin his life. The immediate trigger to the assault appears to have been Mr Waterlow's angry response to hallucinations he took to be confirmation of his delusional beliefs, soon after he arrived for a family dinner that had been arranged to improve their relationship." 27In his report, Dr Westmore said that the accused's illness, "which was characterised by delusional persecutory beliefs regarding his family, would have totally prevented him from understanding that his aggressive actions towards his family were wrong, certainly wrong in a moral sense." His behaviour, wrote Dr Westmore, was "delusionally driven." Dr Wilcox was of the opinion that at the time of the offences, due to his untreated illness, the accused "did not have the capacity to reason with sense and composure about the wrongfulness of his actions." Verdict 28Accordingly, on each count in the indictment, I find the accused not guilty by reason of mental illness. 29The accused has had the benefit of appropriate treatment throughout the period of his custody since November 2009. He gave short evidence, in which he demonstrated insight into his illness and, in particular, his condition at the time of these offences. He expressed what I accept to be genuine remorse. Nevertheless, the Crown Prosecutor noted that his stability is the result of his compliance with a regime of medication, and he conveyed to me the fear which the surviving members of the accused's family feel for their safety should he be released into the community and cease taking his medication. That fear, of course, is entirely understandable. However, this is not a matter about which I would make any comment. It is within the province and expertise of the Mental Health Review Tribunal, whose task it will be to monitor the accused's progress. 30It is necessary to make an order for the detention of the accused under s 39 of the Mental Health (Forensic Provisions) Act 1990. I received an affidavit of Dr Adrian Keller, Medical Superintendent and Clinical Director of the Long Bay Prison Hospital and the Forensic Hospital, Malabar. In the light of that affidavit, the parties have agreed that a certain recommendation should be made in association with that order. 31I order that the accused be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of the law. I recommend that the review by the Mental Health Review Tribunal under s 44 of the Mental Health (Forensic Provisions) Act give consideration to: (i) The views expressed by Dr Adrian Keller in his affidavit of 11 April 2011, and (ii) the transfer of the accused to the Forensic Hospital, Malabar as soon as practicable. 32I express my deepest sympathy to the injured child, and to the family, relatives, and friends of Nicholas Waterlow and Chloe Heuston in their loss. ********** 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. Decision last updated: 19 April 2011