R v Stephen Leslie HILL [2011] NSWSC 1196

Supreme Court New South Wales

Medium Neutral Citation: R v Stephen Leslie HILL [2011] NSWSC 1196 Hearing dates: 11 October 2011 Decision date: 12 October 2011 Before: Barr AJ Decision: Accused found not guilty of murder by reason of mental illness Catchwords: CRIMINAL LAW - murder - judge alone trial - mental illness defence Category: Principal judgment Parties: Regina (Crown) Stephen Leslie Hill (Accused) Representation: Counsel: Mr A McCarthy (Crown) Mr J Fitzgerald (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Ms Helen Shaw (Accused) File Number(s): 2010/150816 Publication restriction: None

VERDICT 1Stephen Leslie Hill is charged with the murder of his partner, Michel Carroll, at Wamberal on 16 June 2010. Well before the date fixed for the commencement of his trial he elected for trial by Judge alone and the Crown agreed. Accordingly, I am constituted as the Judge of the law and the facts. 2The accused and the deceased lived at Wamberal on the Central Coast. Also living with them was a teenage child of the deceased by a former relationship, whom I shall call 'L'. At the time of the events giving rise to the charge they had been in that relationship for eight years. In April 2010 the deceased gave birth to a child, conceived through IVF. The accused is the biological father of the child. During the latter years of the relationship the behaviour of the accused became a matter of serious concern for the deceased, her relations and associates. He was described as exhibiting controlling and abusing behaviour towards 'L' and her. 3The accused was employed by AMP Society. He had in the past offered financial advice to the deceased and her parents. He was experiencing problems in the course of his business. There was a suspicion of fraud or theft by business partners. The deceased was the accused's employee, or perhaps partner in that business. He began blaming her for the failings of the business. He appeared to others to be paranoid about a number of things. For example, he believed that people were listening to his telephone conversations and had planted listening devices in his house. He believed that people were hacking into his computer. He thought that his employer was spying on him. He believed that the deceased was cheating on him and that their baby was not his. He felt that the IVF clinic was involved. He demanded that the deceased undergo a lie detector test to determine whether he were the father of the child and to ascertain whether she knew the combination of his safe. 4On occasions the accused shouted at the deceased and criticised her in the presence of others. 5The accused and the deceased were alone together at their house on 16 June 2010. In the afternoon 'L' returned home. He noticed water running out of the house and across the balcony. He ran to the back of the house and smelt smoke coming from inside the house. He entered the house and noticed blood smears across the floor. The kitchen was in disarray. He went to the bedroom and saw the deceased's half-naked body lying on the floor of the adjacent bathroom. The accused was lying on the floor next to her. 'L' noticed a wound to the deceased's leg and saw an object, which turned out to be the handle of a knife, protruding from her nose. He rang for help and ambulance and police officers attended. They found the body of the deceased. There were numerous facial injuries including stab wounds and deep lacerations to the forehead. The skull was badly damaged with loss of brain tissue. There were numerous stab wounds to the back, buttocks, neck and abdomen, ranging from superficial to incised wounds. A hammer and a bloodstained knife were found nearby. 6The accused was present and the police took him away. He was assessed as being intoxicated or under the influence of prescription medicine because of his impaired movement and speech. He told ambulance officers something about the drugs he had taken. He was taken to Gosford hospital for observation because of concerns for his health. While he was under police guard at the hospital he lashed out at one of the officers while she was attempting to subdue him, kicking her in the back. 7Blood samples were taken from the accused which showed on analysis the presence of Alprazolam, a Benzodiazepine, well within the toxic range. The toxic effects of that drug include drowsiness, confusion, hypotension, tachycardia, palpitations, nausea and muscle tremors. Persons taking drugs in such quantities have been recorded as experiencing anger, hostility, manic symptoms, insomnia, nightmares and self-mutilatory impulses. 8At about 11pm the accused was discharged from the hospital and the police took him to the police station. They interviewed him and made an electronic record of what was said. It is the opinion of Dr Perl, pharmacologist, and of Dr Furst and of Professor Greenberg, psychiatrists, that the accused was not fit to be interviewed. A transcript of the interview has been put before the Court. I will not deal with the detail of it and observe merely that the things the accused is recorded as having said go some way to show what a parlous state of mind he was in at the time. 9The report of Dr Perl shows also that the accused had taken a sleeping tablet, Zolpidem. Dr Perl could not say whether he would have been impaired by that drug when he killed the deceased. If he was, that would have been additional to the impairment resulting from the Alprazolam. These were prescription medicines. 10An autopsy was held and a report prepared for the Coroner. It showed that death was caused by a blunt force head trauma and a complex pattern of stab wounds. The injuries were multiple and varied. There were a number of blunt force injuries to the head, which could have been inflicted by the hammer found at the scene. The head injury would have caused rapid death. The other injuries were inflicted peri mortem or post mortem . 11The accused was taken to the Metropolitan Remand and Reception Centre, Silverwater where he was noted to be very mentally unwell. Staff were recorded as being unable to attend basic observations due, among other things, to the unpredictability of his actions. 12I am satisfied beyond reasonable doubt that the accused did the act that caused the death of the deceased with the intent to kill her. On this evidence, without more, the accused is liable to be found guilty of the murder of the deceased. 13However, 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. 14When 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. 15The accused's solicitor asked Dr Furst to interview the accused and provide a report. Dr Furst had previously seen the accused on 28 June 2010, some two weeks after the death of the deceased. He complied with the solicitor's request and saw him on 7 January 2011, when he interviewed him for about 90 minutes. Before speaking to the accused, Dr Furst read as much as was necessary to inform him about the history of the accused and the deceased, including the statements of ambulance, police and civilian witnesses, medical records, the autopsy report, the transcript of the interview between the accused and the investigating police officers and other relevant documents. Dr Furst wrote a report on 7 February 2011. The report includes these passages: - PAST PSYCHIATRIC HISTORY Mr Hill told me that he had experienced one previous period of paranoia in 2003 when he believed people were calling him in for interviews and was being "heavied by AMP because of my behaviours and the way I did business." He thought they were going to terminate him at the time. He also described a history of periods in which he was high in mood prior to 2005; such as feeling he could "do anything" and "couldn't be beaten." He said he had been the National champion for AMP and felt "gifted." He also said there were times when he felt invincible, was full of energy, and did not need to sleep for several days on end. He did not spend excessively or take too many risks, which one would often expect in a manic episode. He had not been admitted to a psychiatric hospital prior to his arrest and had no previous history of deliberate self-harm or suicide attempts. ACCOUNT OF INDEX OFFENCE I asked Mr Hill about the events in question. He told me that his memory was "hazy...no content...I don't remember it" He said he did not know where he was or what had happened and did not recall being taken to Gosford Hospital or being interviewed by Police. However, he did recall having a conversation with Michel early on the morning of the index offence, where she was talking to him and said something like, "Is that the question you wanted to ask?" He could not recall the nature of the question he asked her; however he said her response "set off alarm bells and panic." He denied arguing with Michel that day and specifically denied arguing about money. He did not think that she hit him. He thought that his first memory of that day was Michel attending to their baby. In relation to events on the previous day, 15/06/10, Mr Hill did not recall anything. He said he had returned from a trip to Melbourne on 14/06/10, having spent the previous two-weeks in Melbourne staying at hotels and at his mother's house. He told me that he was "OK" in his mood; however he then added 'I was belligerent towards Michel as I was thinking about the infidelity between her and 'L's' friends" when he was in Melbourne. He was suicidal at the time of the events in question and took three bottles of Xanax (about 100 tablets) and one bottle of Stillnox (about 20 tablets), together with a bottle of the Beta-blocker Inderal (about 50 tablets). He said that he wanted to die at the time, and the amount of tablets he consumed was potentially life-threatening. Mr Hill also said that the idea of killing Michel and killing himself had entered his mind on occasions between May and June 2010 because he thought she was having affairs and had "hurt me in that way" and because of the business. He denied making any special preparations to kill her. PROGRESS SINCE INDEX OFFENCE Mr Hill said that he heard 'voices" after his reception into custody at the MRRC in June 2010. He told me that "they were amazing" in that he was listening to the television and could hear the broadcast of people behind him. He said that the show was on one level; however the people behind were broadcasting a couple of voices "to annoy me." He recalls that one was an "impersonation of a Lebanese bloke" and that "one was trying to bet into numbers." He also experienced visions of himself being crucified, which was probably an example of a visual hallucination. He was not sure at the time if he was in gaol, or if he had been crucified, which was probably a measure of the confusion he was experiencing as a product of his psychosis. He then developed the belief that he had killed three Aboriginal children when he had travelled to Melbourne in the period prior to the index offence; seeing a vision of himself "dropping a microphone from a News helicopter" and being told by someone in gaol he had killed his niece and nephew. He was distressed by this until he eventually realized there had been no such events. Mr Hill was admitted to the Long Bay Hospital as a Correctional Patient under the Mental Health Act from 22/07/10 to 15/10/10. He said that he had been diagnosed with Schizophrenia and had been treated with medication by Dr Gerald Chew, a psychiatrist working for Justice Health, and his registrar, Dr Kheng Chan. He said he had been diagnosed with Schizophrenia and had been treated with medication. His detention in the Hospital had been supervised by the Mental Health Review Tribunal. He said that his mood had remained "depressed" because of the "situation he was in" and that he continued to experience suicidal thoughts at times. He was anxious around other inmates, being superficially pleasant but not especially close to anyone. He was being managed in Hamden, the mental health 'pod' at the MRRC, where he saw a psychiatrist about once a month and was being treated with a combination of antidepressant and antipsychotic medications. He said that he was sleeping more; however his appetite was less than usual. His memory and concentration had improved somewhat. He told me that the medication had helped, stating "I seem to realise that what I was thinking was skewed." 16Dr Furst noted that between 1996 and 2004 the accused was drinking excessively, a bottle of scotch whisky on most days, though since 2004 he had decreased his drinking somewhat. His use of Xanax (Alprazolam) was probably still excessive in that he took two to three 2 mg tablets per day. He was using the sleeping tablet up to once a week. 17Dr Furst commented upon the transcript of the interview between investigating police and the accused. He commented on inappropriate and disconnected responses, and apparent confusion by simple questions and an inability to remember what had happened on the previous day at the time of his arrest or when being attended to by ambulance officers. He made detailed reference to the many statements and reports with which he had been furnished. 18Dr Furst diagnosed schizophrenia, paranoid type, alcohol dependence and social anxiety disorder. One of the things Dr Furst had been asked to consider was whether the accused was mentally ill at the time of the commission of his offence. He said: - Mr Hill was delusional about AMP and ASIC monitoring him and believed that they were persecuting him. His delusional, beliefs extended to Michel Carroll as his defacto wife and employee, in that he believed she was involved in monitoring him. He also believed that she was having affairs with 'L's' friends and doubted the paternity of his newborn child. The extent of his paranoia was such that he organized for a 'lie-detector' test at Sydney Airport through an expert flown in from interstate. He also organized a DNA test to check the paternity of the baby; however there was evidence that he doubted the results of those tests. At the time in question, Mr Hill was severely depressed, not coping, and was increasingly bizarre in his behaviour as a product of his delusions. His son 'L' said in a statement to Police, he was "Paranoid, accused my mother and myself of recording phone calls, and hacking into his computer - nearly every day," He apparently took his power cord from his laptop, his Internet prepaid dongle and TV remote were missing. 'L' said there were fights about money, and that Mr Hill was accusing him and Michel of recording him and stealing his stuff. John Carroll said that Steve was paranoid that AMP were watching him. He often commented that someone was hacking his computer, bugging his phone, sabotaging him." Paranoid about being audited. Paranoid someone was targeting him. Steve was always saying someone was out to get him. Although there was evidence of conflict between Mr Hill and the deceased, I would regard this as a product of his disorganised and paranoid thinking about the business, his belief that Michel was involved in monitoring him, and his unshakable belief that she was having affairs with 'L's' friends. In my opinion, at the time of the killing of his defacto, he was labouring under a defect of reason in the form of paranoid delusions about the deceased as a product of his schizophrenic illness, which has been recognised at law as a disease of the mind. His delusional beliefs most likely prevented him from knowing that his actions were wrong in a moral sense and deprived him of the capacity to reason about his actions with a moderate degree of sense or composure. I believe he has the mental illness defence available to him. 19Dr Furst wrote another report on 27 March 2011, having seen the video disc of the police interview. He remained of the opinion he had previously expressed. He wrote a third report on 10 June 2011 having seen a toxicology report by Dr Perl and a psychiatric report by Professor Greenberg, written at that request of the Crown. His opinion remained unchanged. 20That brings me to the report of Professor Greenberg, who saw the accused on 8 and 29 April 2011 and wrote a report on 6 May 2011. He was provided with all the necessary documentation. His medical opinion was much like that of Dr Furst, the diagnosis being schizophrenic disorder, alcohol dependence disorder, benzodiazepine dependent disorder and a history of social anxiety disorder. 21Professor Greenberg considered whether the accused had available to him the defence of mental illness. He said this: - I am of the opinion that Mr Hill was likely suffering from a disease of the mind at the time period surrounding the alleged offences. As stated I am of the opinion that Mr Hill likely was suffering from a variety of delusions including delusions of infidelity, delusions of reference about TV and delusions of paranoia involving his de facto partner being in a conspiracy with AMP and ASIC. I am of the opinion that Mr Hill was suffering from a psychotic disorder with prominent delusions. I note that based on the information available, he has not suffered from prominent hallucinations or form of thought disorder (disorganised speech) or grossly disorganised behaviour prior to alleged offence. He likely has a psychotic Illness probably that of a Schizophrenic Disorder. As stated I am of the view that he suffered and is suffering from a schizophrenic disorder, although It is unusual for a late onset of this illness. As a differential diagnosis I am of the view that he may have a substance induced psychotic disorder due to him taking a medication called sibutramine associated with Xanax and Stilnox medication although the evidence for this is relatively poor at this time. I am of the opinion that the accused was labouring under a defect of reason caused by the disease of the mind. It is alleged that Mr Hill smashed his wife's skull from the back whilst she was lying in bed ... . It is also noted by the police and forensic pathologists that in the peri-mortem and post-mortem period Mr Hill likely committed the following acts including dragging her body into the bathroom; inflicting cuts to the victim's face, neck, abdomen and back; inserting two hair brushes into her hair; inserting what appears to be a kitchen knife into the right nostril of the victim ... and smeared the victim's face with lipstick. It is also likely that Mr Hill allegedly walked around the house leaving a trail of blood. He possibly cut his foot on the smashed microwave plate which was on the kitchen floor. It is noted that he allegedly entered his de-facto partner's son's bedroom and possibly damaged 'L's' electrical equipment with the hammer and left the blood-stained hammer hanging on the cupboard door in 'L's' room. It is noted that the house was in a somewhat disarrayed and disrepaired state. In my view the nature of the offence was psychotically based in that the extent of force utilized in the homicide and the bizarre nature of the offence would be more consistent with a defect of reason and an irrational psychotic mind at that time period. 22Professor Greenberg concluded that in his opinion the accused likely did not know the nature or the quality of his act at the time of the alleged offence and that he did not know that it was wrong at that time. 23I 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 a thing, however. The opinions of Dr Furst and Professor Greenberg 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. 24It 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 Ms Carroll and for others closely concerned. The sympathy of the Court goes out to the 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. 25The 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. 26The 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. 27As 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. 28The 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 consider not only 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 released. 29The 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. 30One 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. 31I find that the accused is not guilty by reason of mental illness of the charge that he murdered Michel Carroll. 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.