Supreme Court New South Wales Medium Neutral Citation: R v PCB [2012] NSWSC 482 Hearing dates: 3 May 2012 Decision date: 11 May 2012 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Verdicts of not guilty on each count by reason of mental illness, with a detention order and associated orders made under s.39 Mental Health (Forensic Provisions) Act 1990 Catchwords: CRIMINAL LAW - judge alone trial - charges of murder, wound with intent to murder and possess offensive weapon with intent to commit an indictable offence - defence of mental illness - acts committed whilst Accused experiencing acute psychotic episode - chronic paranoid schizophrenia - auditory hallucinations - verdicts of not guilty by reason of mental illness - detention order made Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Mizzi v The Queen [1960] HCA 77; 105 CLR 659 R v Rodriguez [2010] NSWSC 198 R v Pratt [2009] NSWSC 1108 Texts Cited: --- Category: Principal judgment Parties: Regina (Crown) PCB (Accused) Representation: Counsel: Mr TW Thorpe (Crown) Mr P Winch (Accused) Solicitors: NSW Office of the Director of Public Prosecutions (Crown) Legal Aid (NSW) (Accused) File Number(s): 2010/333991 Publication restriction: Section 15A Children (Criminal Proceedings) Act 1987 prohibits the publication or broadcasting of the name of the deceased child or any information, picture or other material that identifies or is likely to lead to the identification of the deceased child Judgment 1JOHNSON J: At the commencement of his trial on 3 May 2012, the Accused, PCB, pleaded not guilty to each of the following charges contained in an indictment: (a)Count 1: On 9 October 2010 at Liverpool he murdered C (s.18(1)(a) Crimes Act 1900); (b)Count 2: On 9 October 2010 at Liverpool he wounded Jazued Ahmed with intent to murder (s.27 Crimes Act 1900); (c)Count 3: On 9 October 2010 at Liverpool he wounded Rajesh Ram with intent to murder (s.27 Crimes Act 1900); (d)Count 4: In the alternative to Count 3, on 9 October 2010 at Liverpool he wounded Rajesh Ram with intent to cause grievous bodily harm (s.33(1)(a) Crimes Act 1900); (e)Count 5: On 9 October 2010 at Liverpool he possessed an offensive weapon with intent to commit an indictable offence, namely assault Constable Robert Soprenic, a police officer, in the execution of his duty (s.33B(1)(a) Crimes Act 1900). 2C, the victim in Count 1, was the 12-year old son of the Accused. As a result, the name of C must not be published or broadcast, nor may a reference to any information, picture or other material be published or broadcast that identifies C, or is likely to lead to the identification of C: s.15A(1) and (4) Children (Criminal Proceedings) Act 1987. Both the Crown Prosecutor and counsel for the Accused proposed that the best way to ensure compliance with the terms of s.15A was to use initials for the names of the deceased child, his mother and the Accused. I have adopted that approach. Trial by Judge Alone 3On 21 March 2012, the Accused signed a form of election under s.132(1) Criminal Procedure Act 1986 electing to be tried by a judge alone. He stated that, before making that election, he had sought and received advice in relation to the election from Sashi Shukla, solicitor. An affidavit of Sashi Shukla sworn 28 March 2012 evidences that the Accused was given appropriate advice concerning the relevant election. Accordingly, I am satisfied that, before making the election, the Accused obtained advice in relation to the election from an Australian legal practitioner: s.132(1)(b) Criminal Procedure Act 1986. 4On 21 March 2012, the Director of Public Prosecutions consented to the trial of the Accused proceeding before a judge alone. 5Where both the Accused and the Crown agree to a trial by judge alone, the Court must proceed in that way: s.132(2) Criminal Procedure Act 1986. 6Section 133 Criminal Procedure Act 1986 provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. The judgment of the Court in such a case must include the principles of law applied by the judge and the findings of fact on which the judge relies. Issues at the Trial of the Accused 7At the commencement of the trial, Mr Winch, counsel for the Accused, informed the Court that the sole issue in the trial concerned the defence of mental illness. 8By consent, the Crown tendered the following documents: (a)an Agreed Statement of Facts (Exhibit A); (b)an edited transcript of an electronically recorded interview (ERISP) between Detective Sergeant Paul Smith and the Accused at the Liverpool Police Station on 10 October 2010 (Exhibit B); (c)a report of Dr Rosalie Wilcox, general and forensic psychiatrist, dated 8 October 2011 (Exhibit C). 9Dr Wilcox gave oral evidence in the Crown case. 10By consent, Mr Winch tendered the following documents: (a)a report of Dr Scott Clark, consultant forensic psychiatrist, with Justice Health, dated 18 November 2010 (Exhibit 1); (b)a report of Dr Olav Nielssen, psychiatrist, dated 14 June 2011 (Exhibit 2); (c)a report of Dr Akram Bangash of the Liverpool Family Medical Centre, dated 14 June 2011 (Exhibit 3). 11Dr Nielssen gave oral evidence in the case for the Accused. Elements of the Offences 12The burden of proof lies on the Crown to establish beyond reasonable doubt the elements of each of the offences with which the Accused stands charged. 13With respect to the charge of murder (Count 1), the Crown must prove that: (a)C died as a result of injuries; (b)the injuries were inflicted by the deliberate act of the Accused; and (c)at the time of doing the act, it was the intention of the Accused to kill or to inflict grievous bodily harm to C. 14Mr Winch submitted that the Court ought readily be satisfied beyond reasonable doubt that each of these elements had been established in this case, with the evidence establishing, to the requisite standard, that the Accused had an intention to kill C when he caused the fatal injuries to him. 15With respect to each of the charges of wounding with intent to murder (Counts 2 and 3), the Crown must prove that: (a)the Accused wounded each of Mr Ahmed and Mr Ram; and (b)at the time of wounding each victim, the Accused intended to kill the victim. 16Once again, Mr Winch submitted that the Court ought readily be satisfied beyond reasonable doubt that each of these elements had been established in this case, with the Accused intending to kill each victim at the time when he wounded that victim. 17With respect to Count 4, which only arises if the Accused is acquitted on Count 3, the Crown must prove that: (a)the Accused wounded Mr Ram; (b)at the time of wounding Mr Ram, the Accused intended to cause grievous bodily harm. 18If the Accused is acquitted on Count 3, it will be necessary to return a verdict on Count 4. In the context of this trial, if the Accused is acquitted on Count 3 by reason of mental illness, then a verdict on Court 4 will be required, with the sole issue again being the defence of mental illness. 19With respect to Count 5, the elements which the Crown must prove are that: (a)the Accused possessed an offensive weapon (a knife); (b)at that time, the Accused intended to commit an indictable offence, namely to assault Constable Soprenic, a police officer, in the execution of his duty. 20Once again, Mr Winch accepts that the evidence establishes beyond reasonable doubt each of the elements of this offence, so that the Accused would be liable to conviction on this count, subject to the defence of mental illness. 21It remains necessary for me to make findings of fact before moving to the defence of mental illness. Findings of Fact 22What follows is taken from the Agreed Statement of Facts. 23The Accused was born in July 1980. At the time of these events, he was aged 30 years. As will be seen, the Accused has a long history of mental illness. 24The deceased, C, was 12 years' old in October 2010. C was the son of L and the Accused. 25L and the Accused had been in a long-term "on and off" relationship. They had known each other since primary school. At the time when C was born, L was 17 years' old and the Accused was 18 years' old. 26L informed police that her relationship with the Accused had ended before 2007 and that, from 2007, she was in a relationship with another man, A. Although the relationship between L and the Accused had ended, L would allow the Accused to stay, from time to time, at her Liverpool unit. 27In May 2010, L "kicked" the Accused out of the unit. However, for about five-to-six weeks leading up to 9 October 2010, the Accused was once again living at the unit. 28On the morning of Saturday, 9 October 2010, L took C and a seven-year old girl to visit A at Parklea Correctional Centre. In the early afternoon, they returned to the unit. C was tired and lay on his bed watching a DVD movie. C later told L that he was going to have a sleep. 29Shortly afterwards, L and the seven-year old girl left the unit to go to the shops. They met a friend of L. Thereafter, L returned briefly to the unit to get some money, which she had forgotten. She checked on C and found he was asleep. She took the money and went downstairs and spoke to the Accused. They spoke briefly about what they might have for dinner. L then left the unit, returning between 6.00 pm - 6.30 pm that evening, when she observed police at the scene. 30Between 3.00 pm and 5.00 pm on 9 October 2010, the Accused and C were alone in the unit. During this period, the Accused obtained a knife and stabbed C a number of times to the neck and chest. It appears that C was sleeping in his bed at the time of the initial stabbing. 31C suffered multiple stab wounds. One stab wound extended through the right lung and then to the right atrium of the heart. Another stab wound extended into the area of the third and fourth cervical vertebrae and resulted in a total transection of the upper cervical spinal cord. Dr Van Vuure, forensic pathologist, found that the cause of death was multiple stab wounds. 32Shortly after the fatal attack upon C, the Accused left the unit, still possessing the knife. Under the guise of looking for a pet cat, he approached Jazued Ahmed for help. Mr Ahmed was 26 years of age and lived at the unit complex. They both walked a short distance, when the Accused turned around and stabbed Mr Ahmed with the knife to the arm and chest. Mr Ahmed commenced to run away. 33The Accused chased after him. Mr Ahmed ran towards another man, Rajesh Ram, who had witnessed the Accused stabbing Mr Ahmed. Mr Ram, aged 49 years, was visiting relatives who lived in the block of units. 34When the Accused got close to Mr Ram, he stabbed Mr Ram in the chest with the knife. The Accused and Mr Ram then struggled with the knife and the Accused ran off towards L's unit. 35The police were called and arrived shortly afterwards at the unit block. Constable Soprenic saw the Accused outside L's unit. At the time, the Accused was armed with the knife which was concealed. The Accused approached Constable Soprenic who told the Accused to "step back". The Accused then produced the knife. In response, Constable Soprenic commenced to remove his firearm from its holster. The Accused then threw the knife on the ground and the Accused was taken into custody. 36Both Mr Ahmed and Mr Ram were treated at Liverpool Hospital for their injuries. Mr Ahmed sustained lacerations to his sternum, left arm and back. He had sustained a total of five wounds, one to the mid-line of the sternum, one to the right arm and three wounds over the right scapula. 37Mr Ram was stabbed in the chest and received a number of significant wounds to his hand as he tried to block the knife. The Accused's Explanation for his Actions Provided in the ERISP 38In the ERISP conducted in the early hours of Sunday, 10 October 2010, the Accused readily admitted that he had stabbed C, Mr Ahmed and Mr Ram and that he had possessed the knife with intent to stab Constable Soprenic. 39In the course of frequent rambling answers, the Accused asserted to police that he had "Tyrannosaurus Rex blood in me" (Q/A79) and that "voices told me to sacrifice" (Q/A81). Soon after, he told police that "these voices said that I'm to kill my son ... then [L] and that little girl" (Q/A83-84). 40According to the Accused, the voices told him that if he did not "kill my own" then "Armageddon would occur" (Q/A89, 92). Answers of this type were a recurring theme throughout the ERISP. 41At one point, the Accused said "I was told I'm used as, I am Armageddon ... I am a weapon ... of mass destruction" (Q/A160-161). 42With respect to his attacks on Mr Ahmed and Mr Ram, the Accused explained "if I didn't I'd be used as Armageddon and the world would be blown up" and that "I had to try to attack him and kill him" (Q/A241-242). 43Later in the ERISP, the Accused explained how he heard the voices - "I hear them and through sound effects, like, there's microphones set up in my house and stuff like that" (Q/A563). 44Towards the end of the ERISP, the Accused told police that he was "hearing voices now" (Q/A760). The Defence of Mental Illness 45Once the Crown has established beyond reasonable doubt the elements of the crimes with which the Accused is charged, the remaining issue is whether the Accused has available to him the defence of mental illness, as to which he bears the onus of proof on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; 105 CLR 659 at 664-665. 46In R v Rodriguez [2010] NSWSC 198, I described the defence of mental illness in the following way at [33]: "If it appears that the Accused was mentally ill at the time when he committed the relevant acts, a Court must return a special verdict that he is not guilty by reason of mental illness: s.38(1) Mental Health (Forensic Provisions) Act 1990. The defence of mental illness is to be determined in accordance with the M'Naghten rules laid down in R v M'Naghten (1843) 8 ER 718. Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, it must be proved upon the balance of probabilities that at the time of committing the acts causing death, the Accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or if he did know it, that he did not know what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190. " 47In R v Pratt [2009] NSWSC 1108 at [19]-[21], RA Hulme J provided the following helpful summary of relevant concepts: "19In relation to the concept of a 'disease of the mind' which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community. 20As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong. 21A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong." 48With respect to medical evidence adduced at a trial involving the defence of mental illness, I observed in R v Rodriguez at [45]: "Although medical evidence is not essential to prove the defence of mental illness (Lucas v The Queen [1970] HCA 14; [1970] 120 CLR 171 at 174), it is the invariable experience of criminal courts in this State that medical evidence is adduced on this issue. Juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo [2008] VSCA 75; (2008) 18 VR 644 at 655 [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 at 146-148 [124]-[126]; R v Klamo at 644-645 [44]-[50]." The Psychiatric Evidence 49Dr Clark examined the Accused at the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre, Silverwater ("MRRC"), on 9 November 2010, about a month after the events giving rise to the present charges. 50The report of Dr Clark dated 18 November 2010 confirms that the Accused has long-standing psychiatric problems. 51At the time of writing his report, Dr Clark had available to him Justice Health medical records which revealed that the Accused had been diagnosed with paranoid schizophrenia as early as 1997, and had been treated with anti-psychotic medication in 1998. At that time, the Accused was noted to believe that cameras were watching him. He was being treated for schizophrenia with injectable anti-psychotic medication, and was receiving intermittent follow-up from the Liverpool Community Mental Health Team. 52The Accused had two admissions to the Liverpool Hospital Mental Health Unit in August 1998 and again in September 1998, with diagnoses being made of mood disorder, opiate dependence, drug-induced psychosis and substance dependence. 53The records indicated that, in 2000, the Accused was referred to the Young People's Early Psychosis Intervention Program on the Central Coast whilst he was resident at a drug and alcohol rehabilitation centre. 54Dr Clark reported that the Accused had been in custody on a number of occasions. He would take anti-psychotic medication when in custody, but would stop taking the medication when released into the community. The Accused reported that, after his release from custody in 2003, he began to have more frequent paranoid thoughts about his neighbours. 55Dr Clark's report outlined anti-psychotic medication provided to the Accused over a number of years. The report also recounted attendance by the Accused at the Liverpool Emergency Department in July 2006, September 2006 and April 2010, on occasions when he had been brought there by police. 56On 19 August 2010, a mental health review was undertaken at the Liverpool Emergency Department and the Accused was assessed as being subject to a number of stressors. 57The detailed and helpful report of Dr Clark outlined the Accused's psychiatric history, past medical and drug and alcohol history and his family and personal history. Dr Clark provided a mental status examination, before expressing a number of conclusions and recommendations (Exhibit 1, pages 8-9). These included: "[The Accused] has a greater than ten year history of psychotic symptoms. These include paranoid and grandiose delusions, auditory and visual hallucinations, and reportedly bizarre behaviour. He has had intermittent treatment with potent anti-psychotic medications. He has had several hospitalisations for various behavioural disturbances and has at times sought assistance from mental health services. I believe that his most likely diagnosis is schizophrenia, with paranoid and disorganised features." 58Dr Clark concluded that the Accused had "limited insight and his functioning is severely impaired". Dr Clark believed that the Accused, at that time, was "a mentally ill person within the meaning of the Mental Health Act". 59The report of Dr Bangash dated 14 June 2011 (Exhibit 3) confirmed that the Accused had consulted him between November 2006 and 20 September 2010 for a number of conditions, including paranoid schizophrenia for which medication had been prescribed. 60Dr Nielssen examined the Accused at the MRRC on 3 June 2011 at the request of the solicitor for the Accused. 61Dr Nielssen's report recounted the history obtained from the Accused, including his psychiatric history, medical history and history of substance abuse. After setting out observations on mental state examination, Dr Nielssen recorded the following psychiatric diagnoses (Exhibit 2, page 6): "1.Chronic schizophrenia, partially treatment resistant. 2.Substance dependence and abuse disorder, in remission." 62Dr Nielssen expressed the following opinion concerning the mental state of the Accused at the time of events on 9 October 2010 (Exhibit 2, pages 6-7): "From the information available it seems that [the Accused] was affected by an acute exacerbation of his chronic schizophrenic illness at the time of the offence and would have the defence of mental illness open to him. He had a disease of the mind in the form of a psychotic episode arising from a chronic schizophrenic illness, that gave rise to a defect of reason in the form of the belief that the voices he could hear were of real people describing real events and that he was compelled to obey them to prevent Armageddon. From the account he provided to me, which is supported by the symptoms he described in the ERISP, I believe he was aware of the physical quality of his action in stabbing his son, but was deprived of the capacity to reason with any measure of sense or composure about the moral wrongfulness of his actions. I note the allegation that [the Accused] might have been motivated by his jealousy of [L's] new relationship. However, the nature of the offence, [the Accused's] account of his mental state at the time of the offences and the other information that is available are consistent with the offence being due to symptoms of schizophrenia rather than any rational motive." 63In the course of evidence on 3 May 2012, Mr Winch asked Dr Nielssen (T19-20): "Q. You have now seen the ERISP, and having seen the ERISP or parts of it, did viewing that ERISP in any way change the diagnosis that you made in your report? A. No, I thought his demeanour, considering the circumstances, was very abnormal. Q. Tell me why? A. He showed no emotional response and sort of blunting of emotional responses that was consistent with a schizophrenic illness, and he expressed - he described symptoms and bizarre beliefs consistent with that illness as well. Q. Is it the case that the viewing of the ERISP confirmed in every respect in your view, your diagnosis? A. Yes." 64Soon after, Mr Winch asked Dr Nielssen (T20): "Q. But the, if I could put it this way, there's no suggestion is there doctor, that these symptoms have been as it were, made up for the purpose of dealing with this difficulty with the law? A. No, there's a spontaneous account of them at the time of arrest and his account is quite consistent with many other people with mental illness who I've interviewed in similar situations. I think the spontaneous accounts and the observations made of [the Accused] in the period after his arrest when he was restarted on his treatment are also consistent with him having active symptoms of mental illness. Q. In the end of your report, you note an allegation about [the Accused] having been motivated, perhaps by jealousy in committing the crime that he undoubtedly committed. You, in your report say that, 'His account of his mental state at the time of the offences and other information, is consistent with the offence being due to symptoms of schizophrenia rather than any other rational motive.' I take it that you mean by 'rational motive' a motive of jealousy, for example? A. Yes, a more understandable motive that wasn't associated with the loss of ability to realise that his actions were wrong." 65Dr Wilcox examined the Accused at the MRRC on 12 September 2011 on behalf of the Crown. 66The report of Dr Wilcox dated 8 October 2011 contained an extensive background history, the Accused's account of the alleged offences together with his psychiatric and drug and alcohol history and his medical and personal history. Dr Wilcox then turned to a selected document review and mental state examination of the Accused. 67Dr Wilcox recorded the following psychiatric diagnoses (Exhibit C, page 9): "Chronic Paranoid Schizophrenia (partially treatment resistant) Substance Abuse - heroin, prescribed sedatives (remission in a controlled environment)" 68Dr Wilcox provided a detailed opinion in support of the diagnosis of paranoid schizophrenia (pages 9-10): "From age 17 years onwards he has had psychotic episodes characterised by persecutory beliefs that have been associated with prominent auditory hallucinations. The persecutory beliefs often resulted in conflict with neighbours and he has felt that he is being monitored and that he is under surveillance. Due to an escalation in his paranoia he has required hospitalisation on a number of occasions. There has been an associated decline in social function. [L] indicated that he experienced auditory hallucinations that were critical and constantly harassed him and that he did not believe that there was anything wrong with him." 69Soon after, Dr Wilcox said (page 10): "Some months prior to the alleged offence he stopped taking his antipsychotic medication as he felt that it made him mentally and physically ill and he had gained significant weight. At the same time he started to have the occasional short [sic] of heroin as he had also come off the methadone. He then presented to Liverpool Hospital seeking admission as he was not coping and was placed on buprenorphine (Subutex). In the context of stopping his medication and being stressed about his recent drug use and his future relationship with [L] he experienced an acute exacerbation of his chronic schizophrenic illness. The exacerbation on this occasion was different to his usual presentation in that it was acute in onset and more bizarre in nature." 70With direct reference to the Accused's mental state at the time of the events of 9 October 2010, Dr Wilcox said (pages 10-11): "Despite his concerns about [L's] relationship I do not believe that his actions were motivated by his jealousy or a desire for revenge. The E.R.I.S.P conducted on the 10 October 2010 clearly indicates that his actions occurred as a result of his command auditory hallucinations and the associated delusional beliefs. When he stabbed his son he was suffering from a disease of the mind namely an acute exacerbation of his chronic schizophrenic illness. He experienced a defect of reason namely he believed that the voices he heard were real and if he did not obey the voice something bad would happen like Armageddon. He believed his son knew that he had to be sacrificed and that everyone around him was dead. He knew what he was doing but did not comprehend that what he was doing was wrong. He stabbed the two neighbours because the voices told him he had to harm other people and he was similarly unable to reason with sense and composure about the wrongfulness of his actions." 71In oral evidence on 3 May 2012, Dr Wilcox observed that, during the ERISP, the Accused "said a lot of very bizarre disconnected things" (T9.27). 72Dr Wilcox responded to questions from me concerning the Accused's appearance during the ERISP (T12-13): "Q. ... You've seen the video of the interview? A. That's correct. Q. How would you describe the accused's affect, appearance or demeanour in that recording? A. He presented like someone with a chronic mental illness, his affect was somewhat restricted in that he showed somewhat minimal reduced range of emotion. He was, at times, quite distracted and preoccupied, and it was apparent during the interview that he was responding to voices. At times when the interviewing detectives were asking him questions, he lost his train of thought, then appeared to be just staring into space. On at least one or two occasions he said 'did you hear that', and then asked about voices which he believed were real, and he was quite convinced that there was someone talking in a space behind him, and he said, 'did you hear that? They said I'm insane.' Later on he said, 'Did you hear that? They said happy birthday.' His speech was very much ... typical of someone with a very disorganised period of psychosis, in that it was rambling, it was disconnected, it contained what we call neologisms, which is made up words. So the grammar was quite bizarre. So I had no doubt from watching the ERISP that there was a very unwell man. Q. And you of course in your extensive experience in forensic psychiatry and seeing persons who were affected by mental illness of this type, speaking? A. That's right. Q. Both in films of the type that you saw here but also in by direct observation of patients with whom you've examined or dealt? A. Yes, and he was quite typical of someone who was, what we would say floridly unwell." 73The Crown Prosecutor then asked Dr Wilcox (T13): "Q. I think as part of your diagnosis and your opinion you considered whether or not he might have been motivated by anything other than his illness? A. I did consider that because of his, of the fact that his partner, the mother of the child, had a new relationship. This new partner was about to be released from custody, moving in to live with her. Q. After having taken those matters into account, did that in any way change your initial opinion that at the time of the commission of these offences, he was severely unwell? A. No. No. I didn't believe that at the time his actions were in any way motivated by revenge or jealousy. Q. It was as a result of being unwell and the auditory hallucinations and commands that he was being given? A. Yes. I think at the time he wasn't even considering or thinking about his ex partner's relationship; that was far from his mind. He was in his own fantasy world and it didn't contain, or refer to that at all." 74The Crown Prosecutor asked Dr Wilcox about the non-fatal attacks by the Accused after he had killed C (T13-14): "Q. Can I ask you this: You principally concentrated in your report and the evidence that you've given today, in relation to the tragic death of his child? A. That's correct. Q. Can I take you to the other events that occurred shortly thereafter; the attack on the two men that were at the unit block and the confrontation with the police officer. Is it your view that he was mentally unwell at that time as well? A. Yes. I believe he was still in this same psychotic phase where he believed that he had to sacrifice, and once he felt he completed the sacrifice of his son, the voices continued to tell him that he had to go and do further sacrifices. And I believe that it's probably very lucky that his partner and the young child who was with her that day, weren't present; that he may have even gone on and harmed her. So I believe that it was all part of the whole scenario that was going on at that time. Q. As evidenced by the way he presented as well when he was interviewed by police some hours later? A. That's correct, yes. I mean, the other factor was, there was no reason for him to attack those other two individuals; he didn't know them; they hadn't been in any conflict. There had been no trigger. So it was quite bizarre and not understandable by any logical rational process. Q. Other than he was mentally ill? A. Other than he was mentally ill." Determination Concerning Defence of Mental Illness 75Both the Crown Prosecutor and counsel for the Accused submitted that the defence of mental illness had been established, on the balance of probabilities, in this case with respect to each of the offences with which the Accused stands charged. 76It will be apparent that Dr Nielssen and Dr Wilcox have expressed their opinions by reference to the elements of the defence of mental illness. 77Both psychiatrists are satisfied that the Accused, at the time when he killed C and at the times when he wounded Mr Ahmed and Mr Ram and possessed the knife with intent to assault Constable Soprenic, suffered from a defect of reason from a disease of the mind. 78Dr Nielssen described the disease of the mind as being a psychotic episode arising from a chronic schizophrenic illness. This disease of the mind gave rise to a defect of reason, the belief of the Accused that the voices he could hear were of real people describing real events and that he was compelled to obey to prevent Armageddon. The critical finding of Dr Nielssen is that the Accused "was aware of the physical quality of his action" but was "deprived of the capacity to reason with any measure of sense or composure about the moral wrongfulness of his actions". 79Dr Wilcox considered that the Accused was suffering from a disease of the mind, being an acute exacerbation of his chronic schizophrenic illness. He experienced a defect of reason (arising from the disease of the mind) in that he believed that the voices he heard were real and, if he did not obey them, something bad would happen like Armageddon. Dr Wilcox considered that the Accused "knew what he was doing but did not comprehend that what he was doing was wrong" and that he "stabbed the two neighbours because the voices told him he had to harm other people and he was similarly unable to reason with sense and composure about the wrongfulness of his actions". 80Accordingly, the expert medical evidence from two most experienced forensic psychiatrists supports the defence of mental illness for the Accused on each count. I accept the evidence of each of the psychiatrists. 81The ERISP conducted with the Accused soon after these tragic events strongly supports the defence of mental illness. Both the words spoken by the Accused, and his manner and appearance during the interview, evidence the existence of significant mental illness at that time. Dr Nielssen noted that the Accused "showed no emotional response" and "a sort of blunting of emotional responses that was consistent with schizophrenia illness" whilst describing "symptoms and bizarre beliefs consistent with that illness as well". Dr Wilcox observed that the Accused "said a lot of very bizarre disconnected things" with a reduced range of emotion and rambling and bizarre grammar which was "typical of someone who was ... floridly unwell". 82The acts of the Accused also provide strong support for the defence of mental illness. He attacked and killed C, and then attacked and wounded Mr Ahmed and Mr Ram and was prepared to do the same to Constable Soprenic, in circumstances where he was suffering an acute exacerbation of his chronic schizophrenic illness, and was hearing voices commanding him to act in the ways in which he did. Both psychiatrists exclude a scenario which would have the Accused acting out of jealousy to kill C. The totality of the Accused's acts, including the otherwise inexplicable attacks upon the two neighbours, support the opinions of the psychiatrists, which I accept. 83I am satisfied on the balance of probabilities that, at the time of the fatal attack upon C and the Accused's actions involving Mr Ahmed, Mr Ram and Constable Soprenic, the Accused suffered from a disease of the mind, namely an acute exacerbation of his chronic schizophrenic illness. I am satisfied on the balance of probabilities that, at those times, the Accused suffered from a defect of reason from that disease of the mind, in that he did not know that his actions were morally wrong. He could not reason with some moderate degree of calmness in relation to the moral quality of what he was doing (see [46]-[47] above). 84I propose to return a special verdict that the Accused is not guilty by reason of mental illness with respect to each count on the indictment. Section 39 Mental Health (Forensic Provisions) Act 1990 85Given the proposed verdicts, it is necessary for the Court to consider what further order ought be made under s.39 Mental Health (Forensic Provisions) Act 1990. That provision is in the following terms: "39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order." 86The Crown Prosecutor submitted, and Mr Winch accepted, that the only appropriate order to be made in this case is an order for detention of the Accused. 87The evidence reveals that the Accused has a long history of mental illness, in the form of chronic paranoid schizophrenia (partially treatment resistant). This mental illness has included paranoid thoughts concerning other persons, including neighbours. The conduct of the Accused on 9 October 2010 reveals the actual danger which he posed to all those who became victims of his acts, and the danger which he posed to others, including (if they had been in the unit) L and the little girl. 88It is entirely clear that the only appropriate order is a detention order under s.39(1) of the Act. 89If this trial had proceeded before a jury, it would have been necessary for the jury to be informed of the legal and practical consequences of a finding of not guilty by reason of mental illness: s.37 Mental Health (Forensic Provisions) Act 1990. The purpose of s.37 is to ensure that the jury understands the consequences of a special verdict of not guilty by reason of mental illness, including the terms of s.39 of the Act and the role of the Court and the Mental Health Review Tribunal with respect to the protection of the community and the person who may be acquitted on those grounds: R v Rodriguez at [56]. 90It is important that the community understands that the effect of the findings and orders which I will make is that the Accused will remain in detention and be held as a forensic patient, to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the Accused will not be released until the Tribunal is satisfied that the safety of any member of the public, or the safety of the Accused, will not be seriously endangered by his release. The case of the Accused will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals. If, at some stage in the future the Accused comes to be released, it may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained. In cases such as this, it is important that the community understands the practical reality of the orders which are made. 91Before concluding this judgment, I wish to direct some comments to those affected by the events which have given rise to this trial. On behalf of the community, the Court expresses its condolences to L for the tragic loss of her son. 92It is appropriate to acknowledge as well that others have suffered, including Mr Ahmed, Mr Ram and Constable Soprenic, as a result of the terrible events of 9 October 2010. Verdicts and Orders 93With respect to each count on the indictment, in accordance with s.38 Mental Health (Forensic Provisions) Act 1990, I find the Accused not guilty by reason of mental illness. 94In accordance with s.39(1) of that Act, I order that PCB be detained in a correctional centre, or at such place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 95I direct that, as soon as practicable, the Registrar notify the Minister of Health of this order. 96I direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order, and provide to the Tribunal the following documentation: (a)a copy of these reasons for verdicts and orders; (b)the transcript of the trial; (c)the exhibits tendered by the Crown and counsel for the Accused at the trial. ********** 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: 11 May 2012