Supreme Court New South Wales Medium Neutral Citation: Regina v RS [2011] NSWSC 830 Hearing dates: 2 August 2011 Decision date: 05 August 2011 Jurisdiction: Common Law - Criminal Before: Barr AJ Decision: Accused found not guilty of murder by reason of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Regina RS Representation: Counsel Crown - Mr P Barrett Defendant - Mr W Dawe QC Solicitors Crown - Solicitor for Public Prosecutions Defendant - Legal Aid File Number(s): 2010/00016714 VERDICT 1HIS HONOUR: The accused is charged with the murder of his wife. He has elected for trial by Judge alone and the Crown has consented. I shall refer to the accused only by the initial letters of his name and shall refer guardedly to other persons and places involved, all to preserve the welfare of a young child of the marriage. 2I have extracted the following facts from documents tendered without objection by the Crown. The accused and his wife, whom I shall call K, lived in a city in New South Wales. He was 25 years old and she was 22. Their child was a few months old. The accused had a history of mental illness and of consuming alcohol and cannabis. Their relationship can be said to have been an argumentative one, partly I think because the accused, who came from Asian stock, wanted the deceased to behave more according to the customs and habits of his own people. He was critical of the way she managed household affairs. For a period of time during the pregnancy of the deceased the couple lived with the deceased's mother. That arrangement was of mutual benefit to her and the couple. The couple were married by then but were already arguing about what the deceased and her mother regarded as unreasonable expectations about how the deceased should behave. The deceased's mother remonstrated with him. A problem arose about the condition of premises the three had been living in. The lease was in the couple's name but the deceased's mother had paid the bond, trying to help them build up a sound rental history. At the expiry of their occupation of the house the lessor refused to refund the bond, claiming that the premises were dirty. This all added to the tension between the couple. 3On 18 January 2010 the deceased telephoned her mother and said that the accused was threatening to take the child overseas. Her mother spoke on the telephone to the accused and told him that he could not do so. He repeated his complaints about the way the deceased managed the household. The argument became so heated that the deceased's mother told the accused that he would no longer be welcome in her home. The accused began screaming in a language she did not understand. She heard the deceased screaming "no, I wont do it, please don't". The screaming went on and the baby was screaming as well. The deceased's mother heard the accused grunting as though doing heavy physical work. She could no longer hear the deceased. She got into her car and drove to the place where the deceased and the accused lived. The deceased was dead by the time she arrived. 4The deceased must have died at about 3.30pm, perhaps a little after. At 3.55pm the accused walked into the police station covered in blood and told officers that he had just killed his wife. He told them the address. The police went there and found the deceased dead. 5Dr Duflou examined the deceased's body and wrote a report for the Coroner. Altogether he noted 41 stab wounds and other marks, principally on the neck and upper chest, and on the left side and the posterior of the trunk. The hands and arms were cut. Perhaps the most serious wound was one to the front of the neck. Dr Duflou described it in this way: "There was extensive injury to virtually all structures of the anterior two-thirds of the neck as a consequence, with severing of all major muscles below the thyroid prominence, severing of all major blood vessels, including both common carotid arteries, both the deep and superficial jugular veins bilaterally and both vertebral arteries. The larynx had been severed at the mid thyroid cartilage,, as had the oesophagus and deep (sic) to this there was transection of the anterior spine at the level of the C4 vertebra. The spinal cord had been partially severed without significant bleeding around the cord at this level. Additionally, the knife was embedded in the body of the C4 vertebra for a distance of approximately 10 to 15 mm. Immediately superior to this large incised wound were two abraded injuries consisting of multiple parallel abraded marks about 3 mm apart." 6The condition of the various injuries showed that two knives were used. Dr Duflou concluded that death had been caused by multiple stab wounds. A knife had in several instances entered the chest or abdominal cavity. The heart was pierced at least once. Damage resulted to the stomach and the spleen. There was a partial collapse of the right lung. 7The evidence of the sounds heard by the deceased's mother over the telephone, the description of the many wounds inflicted and the admissions made by the accused to police officers show that the accused attacked the deceased with a knife, and then a second knife, for long enough to inflict more than 40 wounds or other marks on the body. The description of the wounds to the throat and the chest and abdominal cavities show that force was used. The attack was ferocious. 8I am satisfied beyond reasonable doubt that the accused did the act that caused the death of the deceased with an intent to kill her. On this evidence, without more, the accused is liable to be found guilty of the murder of the deceased. 9However, the accused has pleaded that he is not guilty by reason of mental illness. The burden of proving that an accused person who is otherwise liable to be found to have committed an offence is not guilty by reason of mental illness lies not upon the Crown but on the accused himself. He must prove what he asserts on the balance of probabilities, which is to say that he must make it appear more likely than not that he was at the time suffering from a mental illness sufficient to give him that defence. 10When this defence is raised the question to be answered is whether when the act constituting the offence was committed the accused was suffering from a defect of reason from a disease of the mind so as not to know the quality and the nature of the act that he was doing or, if he did know it, that he did not know that what he was doing was wrong. The law has been amplified in Australia in recent years and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through 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. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong. 11During the preparation of his case for trial the accused's legal advisers referred him to a psychiatrist, Dr Nielssen, who saw him on 29 November 2010. He told Dr Nielssen he would plead not guilty because his mental situation was not alright at the time, that he was paranoid. He said that he had seen a psychiatrist at Parklea Correctional Centre and had been prescribed medicine for paranoia. He also said that he had taken medicine for depression in the past. He said that he thought the deceased and her mother were going to kill him. He said that he had had symptoms of paranoia since the age of 10 years and that they had become stronger after he began smoking cannabis in 2007. In 2008 he had become afraid of being hurt. He saw a general practitioner, who prescribed a psychiatric drug and advised him to stop smoking cannabis. 12Dr Nielssen's principal concern at the time of their interview was whether the accused was fit to be tried. That is no longer a matter of concern for the Court, but Dr Nielssen's report is useful because in it he expressed the view that the accused's use of cannabis probably played a role in the development of psychosis. He thought it likely that the accused would be able to raise the defence of mental illness or the partial defence of substantial impairment by abnormality of mind, though that was plainly a tentative view. 13As far as the Court is aware, Dr Nielssen did not see the accused again. He was seen, however, by Dr Roberts, at the request of the Crown and by Dr Westmore, at the request of his solicitor. 14Dr Roberts reviewed the accused's psychiatric history and noted the paranoia that he accepted had existed since the age of 6 or 7 years. Dr Roberts noted that the accused turned to the use of cannabis in 2007 after he and a girlfriend ended their relationship. He noted the report of an increasing intensity of paranoid feelings under the influence of cannabis. He noted the prescription of other psychiatric drugs. He noted that after his arrest the accused terminated his solicitor's instructions in the belief that she was linked to the police. He noted the accused's fear of being poisoned and that people in gaol were trying to read his mind, that inmates were linked to prison officers and were disseminating information about him. He requested a move to a single cell in the belief that his cell mate was informing on him. Such thoughts persisted whilever he used cannabis, which he did through into 2008. In that year he stopped taking the drug. 15During his account to Dr Roberts the accused made a number of statements about what he believed the deceased and her mother were doing and were intending to do. I am not satisfied that any of those complaints was true. Their only relevance for present purposes is the light they throw on the unreasonableness of the accused's beliefs at the time. He asserted that both the deceased and her mother had mental health problems, that they took money from him and that he did not know what they were doing with it and that he was concerned that his wife would harm their child. He believed, notwithstanding that the deceased's mother had paid the money, that he had been cheated out of the money provided to the lessor. He said that on occasions the deceased would threaten to drop the child and he was concerned the child would be injured. I should observe that there is no evidence that the deceased ever injured the child in any way. He formed the view that the deceased and her mother could easily overwhelm him. He believed that they wanted to stab him. He responded by obtaining a knife and stabbing the deceased. 16Dr Roberts considered that the pattern described by the accused reflected habitual heavy use of cannabis and observed that the drug is known to exacerbate underlying psychotic symptoms. Dr Roberts said this: "The account provided at the time of the assessments undertaken of [RS] and supported by information contained in the material provided, indicate that at the time of the offence for which he is before the Court, [he] held the belief that he was in imminent danger of being killed. He reported the belief that his wife's mother and sister were to attend his home with a view to stabbing him and he reported that his wife intended stabbing him. The belief evolved in the context of certain arguments. The fact that his stated expectation that he was in imminent danger has been repeated and documented on more than one occasion is taken to represent a firmly held belief that his actions at the time of the offence were defensive. [His] presentation to the police station and the information provided to the police at that time indicate an awareness as to the nature of his conduct and the effect of his conduct, namely that he had stabbed and thereby murdered his wife." 17On these findings Dr Roberts expressed the view that when he killed the deceased the accused was suffering from a mental illness, namely schizophrenia of the paranoid type, by virtue of which he experienced the delusional belief that he was in imminent danger of being killed by his wife, that his child was in danger of being mistreated and that he was at risk of being deported. 18Dr Roberts considered that the nature of that mental illness was alone sufficient to explain the accused's actions, irrespective of the effect of any substances he had ingested. He considered it improbable that the accused would have acted as he did but for his psychotic illness. Dr Roberts expressed the opinion that the accused had available to him the defence of mental illness, namely that the mental illness from which he was suffering deprived the accused of the ability to assess the reasonableness of his act. 19Dr Westmore read Dr Roberts' report and reviewed the material he had dealt with. He interviewed the accused. He read Dr Nielssen's report. He came to these conclusions: "[RS] is a 27 year old man who [was] born and raised in India. He has a long history of having suffered paranoid thoughts and these commenced in India before he started abusing Cannabis. He started using Cannabis heavily in 2007 and he noted that Cannabis exacerbated his paranoid ideation. He has a paranoid schizophrenic illness which is likely to have been exacerbated by his use of Cannabis. At the time of the alleged offending behaviour I, like Dr Roberts, believe that he was suffering from a chronic paranoid schizophrenic illness This is a disease of the mind which would have totally deprived him of the capacity to know that he ought not do the act. The history does suggest that he had developed delusional views in relation to the deceased and her mother. [RS] himself raises the question of self defence and he notes that his wife had a history of self harming behaviour and she had also acknowledged attacking him, before the incident. Nevertheless my view is that had he not been mentally ill he may well have acted differently towards his wife at the time he alleges she attacked him on the occasion leading up to her death. His paranoid schizophrenic illness is a disease of the mind which would have totally deprived him of the capacity to know and understand that he should not [have] acted as he did towards the deceased at the time she died." 20I remind myself that the tribunal of fact has a duty to make up its own mind on the issues for trial, taking into account all the evidence. Where the evidence is of expert opinion that opinion may be weighed in the light of other evidence. The tribunal of fact may even reject expert opinion by reference to other evidence in the case. There is no cause here to do such as thing, however. The opinions of Dr Roberts and Dr Westmore are unchallenged, so the Court should accept and act on them. I conclude, as they have opined, that the accused has discharged the burden of establishing the availability of the defence of mental illness. 21It is necessary to say a number of other things. The events giving rise to the charge must have been distressing and perplexing for the family of K, and perhaps for others. The sympathy of the Court goes out to K's family and all those who have been touched by these tragic events. It is to be hoped that now that the Court hearing is over those concerned may gain some peace of mind. 22The statute which governs cases like this empowers me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. I propose to make such an order. In practice that means that under the provisions of New South Wales mental health legislation the accused will be referred as a forensic patient to the Mental Health Review Tribunal. A strict statutory regime will then come into effect. 23The Mental Health Review Tribunal is a body consisting of a president or a deputy president and other members, including legal practitioners, psychiatrists and persons who in the opinion of the Governor have qualifications or experience which suit them for service on the Tribunal. 24As soon as possible after my verdict the Tribunal will commence a review of the accused's case. When it has done its review it can make an order as to the manner in which the accused should be detained, cared for or treated. 25The Tribunal can at any later time, and must periodically, review his case. Following any such further review the Tribunal can order the manner in which the accused is to be detained, cared for or treated. It can also order his release, conditionally or unconditionally. As it considers the accused's case from time to time, the Tribunal is, of course concerned about the accused himself, his state of mental health in particular and how he should be housed and treated. But there are wider considerations, and the legislation requires that when reviewing his case the Tribunal is required not only to consider whether care, treatment or control of the accused is necessary for his own protection but also how to ensure the protection of others from serious harm. If there is a proposal to release the accused, a report from a forensic psychiatrist or other responsible person not involved in the accused's treatment must be received, dealing with his condition and whether his safety or the safety of any member of the public would be seriously endangered if he were to be released. 26The Tribunal cannot order the release of a forensic patient unless one of its members is or has been a Judge. If the Tribunal proposes to release a forensic patient it must inform the Minister for Health and the Attorney General and they may make submissions about the matter. 27One may summarise one of the principal purposes of the legislation by saying that the intention is that the accused will never be released from his confinement unless the Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered. 28I find that the accused is not guilty by reason of mental illness of the charge that he murdered K. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2011