Supreme Court New South Wales Medium Neutral Citation: R v DC [2012] NSWSC 1125 Hearing dates: 13 September 2012 Decision date: 18 September 2012 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 a special verdict of not guilty of each charge by reason of mental illness; and Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, DC be detained in Austinmer Unit Forensic Hospital, Malabar, or such other facility as the Mental Health Review Tribunal may determine until released by due process of law. Catchwords: CRIMINAL LAW - judge alone trial - murder - steal from a dwelling - drive a conveyance without consent - accused suffering chronic paranoid schizophrenia - consensus between experts as to mental illness defence - not guilty by reason of mental illness Legislation Cited: Children (Criminal Proceedings) Act 1987 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Mizzi v R (1960) 105 CLR 659 R v McNaghten (1843) 8 ER 718 R v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) DC (Accused) Representation: Counsel: J. McLennan (Crown) H. Van Dugteren (Solicitor for the accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused) File Number(s): 2011/133154 Publication restriction: Child offender - s 15A Children (Criminal Proceedings) Act 1987 Judgment 1HIS HONOUR: The accused, DC, is a juvenile charged with one count of murder, one count of stealing from a dwelling and one count of take and drive a conveyance, each of which is the subject of an election for trial by judge alone. This judgment deals with the verdict for those charges, and consequential orders. Charges 2The accused was arraigned before the Supreme Court on 1 June 2012 on three counts, summarised above. DC was charged, on indictment, that on 19 April 2011 at Suffolk Park in the State of New South Wales he did murder SDC; that on 19 April 2011 at Suffolk Park in the State of New South Wales he did steal $3,000 in Australian currency belonging to SDC in the dwelling house of SDC at (address withheld) Suffolk Park; and that on 19 April 2011 at Suffolk Park in the State of New South Wales he did without the consent of SDC, owner of a conveyance namely Holden Commodore Sedan bearing registration BI98CV, take and drive the said conveyance. 3The accused is a juvenile. As a result, his name and any matter that would identify him is, in accordance with the legislative provisions, unable to be disclosed. As a consequence of that proposition, the identity of the alleged victim, who is the accused's mother, is the subject of a non-disclosure order and subject to the restrictions on disclosure imposed by the legislative regime: see s 15A Children (Criminal Proceedings) Act 1987 and in particular sub-section (5) thereof. 4As earlier stated the trial is conducted by judge alone. An election under s 132(1) of the Criminal Procedure Act 1986 was filed in Court on 21 August 2012. It was signed by the accused and witnessed on 31 May 2012 and the Prosecutor consented on 1 June 2012. 21 August 2012 was prior to the day before the date fixed for hearing of the matter and the proceedings were heard as a judge alone trial. Facts 5The facts in this case are uncontroverted. Evidence has been adduced by the filing of statements including the statements of police officers involved in the crime scene investigation at Suffolk Park, the statements of motel owners at Port Macquarie, the statements of police officers involved in the arrest of the accused and statements of a number of persons including neighbours and relatives associated with the behaviour of the accused and the disagreement between the accused and his mother on the night of 19 April 2011. Further evidence has been adduced as to the medical history and background of the accused and current reports relating to his mental health. The following summary is taken largely from the Crown submissions. 6The accused was 17 years of age at the time of the alleged offences and living with his mother, the deceased, at (address withheld) Suffolk Park. 7The accused has a history of mental illness with early onset/drug induced psychosis first diagnosed in March 2009. At the time of the alleged offences, he was under the care of the Byron Bay Acute Care Team. 8The accused was sufficiently unwell to be involuntarily detained on 30 March 2011 in Richmond Clinic, attached to the Lismore Base Hospital. He absconded on 1 April 2011 and returned home on 14 April 2011. The deceased sought to have him re-scheduled but he was not visited before the killing and does not appear to have had any medication after 1 April 2011. 9The accused also has a history of violent conflict with his mother over the previous two years, which, according to the medical records, did not always coincide with his bouts of psychosis (see letter from Andreas Kirbach to Zain Constantine of 1 February 2011). 10On Sunday 17 April 2011, the deceased was at home with the accused when she went to her room to retrieve $3,000 in cash that she had set aside to pay bills. She could not find the money and asked the accused if he had seen it. He ignored her and walked away. 11At 9.59am on 18 April 2011, the deceased rang a family relative in a highly distressed state (see statement of Jameli Nader of 26 April 2011). The deceased said that she had been awake all night as the accused had been coming in and out of the house with a knife and that, over the last couple of months, the accused had been walking around with a knife. 12In the afternoon of 18 April 2011, a nearby resident saw the accused holding a laptop on his shoulders listening to music in the street (statement of Paul Simke of 4 May 2011) and at about 11.00pm another neighbour observed the accused pacing up and down the street (statement of Joshua Carrick of 20 April 2011). 13At or about 4.00am on Tuesday 19 April 2011, the accused and the deceased had a loud verbal argument, which was overheard by neighbours. The argument woke those neighbours from their sleep. They heard the deceased screaming: "Stop! Dave, you're killing me; you're going to kill me. Stop, Dave! You're killing me!" (Statement of Remy Sedelaar of 20 April 2011) And, "Stop it! Stop it! You're going to kill me!" (Statement of Joshua Carrick of 20 April 2011) 14Police were contacted by a concerned friend of the deceased and visited the residence on 20 April 2011 at about 8.00am. They did not see the deceased when they made a cursory search of the house and it appeared to be in its usual state of untidiness (statements of Constable Gordon and Constable Keogh each dated 20 April 2011). 15At or about 10.30am on 20 April 2011, the aforesaid concerned friend gained entry to the house and found the deceased's body wrapped in carpet on the floor of a small toilet/shower area inside the garage. The carpet was covered with a large number of towels all of which were heavily soiled with blood. 16Police returned to the house and a crime scene was established. The police identified the body as SDC, the alleged victim in these charges. There was a large quantity of blood on her arms and clothing. She had black duct tape wrapped around her head and her mouth. The bottom half of her body was covered by towels that had been bound to her body with white masking tape. Her feet were in a purple plastic bag and this bag had been taped to her feet with white masking tape. There appeared to be a number of stab wounds to the torso. 17The crime scene analysis revealed small amounts of blood in several rooms with a substantial amount being in the garage. An area that had been cleaned was near the door of the car, if there were a car in the garage and it had been parked on its usual side. The deceased's handbag and toiletry bag were nearby with some items scattered about the floor. The deceased's vehicle was not in the garage and police sent out an alert for it and the accused. 18The vehicle was found abandoned on the south bound off ramp at the intersection of the Pacific Highway and the Oxley Highway at Port Macquarie. It was later established that the accused had taken the vehicle and driven north to Brunswick Heads to purchase fuel before driving south. After leaving the vehicle, the accused caught a taxi to Port Macquarie. He had left a number of fifty-dollar notes scattered in the car and the keys were never found. In his subsequent interview, the accused said that the police used remote control to stop the car. 19On 19 April 2011, the accused booked into a motel in the name of Jayden Murtorge of 7 Hayden Street, Suffolk Park, but told the employee that he was from Mudgee. The next morning at about 9.00am he booked a second night. At about 11.30am that morning (i.e. 20 April 2011), he booked into another motel in the name of Minsarrah Jarrette of 28 Henry Street, Parramatta for that same night. He booked in for a second night the next morning. 20At 5.35pm on 21 April 2011, police officers saw the accused and recognised him from the alert issued by Byron Bay police. When asked his name, the accused said "Jason" or "Jarrod". An officer then asked if he was DC and he said, "No". He had no identification and told police he had $3,000 in his wallet. He was then arrested and cautioned. A detective then spoke to the accused who admitted being DC. He denied killing his mother and asked what happened to her. He was crying. 21When asked where he had come from, the accused said: "Sydney. I have come here to buy drugs, that's all, honest. I've been here for a few days to buy drugs. Why would I kill my mother? I've been in Sydney." (Statement of Senior Constable Halverson of 21 April 2011) 22When searched, DC was found to have $2,670, in cash, in his possession. 23When initially arrested, and when in the dock at the police station, the accused asked police several questions about how they knew things such as that he was in Port Macquarie and that his mother's body was in the bathroom. When first processed at the police station, the accused was upset and when a police officer tried to settle him down, the accused replied: "But I killed my mother." 24The accused, at that stage, put his hands over his face and appeared to cry and howl (statement of Senior Constable Gilmour of 22 April 2011). In the dock, the accused said: "My mum said she gave a key to this junkie" and "I just came here to buy coke." 25The accused also said: "I was going to meet some big guy at Big W. I was going to buy coke. I was going to sell coke in Sydney." (Statement of Senior Constable Sanger of 2 May 2011) 26The accused was given access to legal advice and was provided with a support person. He agreed to be interviewed by police. In the interview DC denied killing his mother. He said he last saw his mother when she was shooting up with her friends, Mr Barnes and Ms Hodges. 27DC said he took the money from the floor, after his mother had passed out from the drugs, and denied that she had asked him about the money. 28During the interview, the accused also denied having a verbal argument with his mother, but then said: "Well, you see, we had a fight and I made a spear and we had a big fight and I had this spear and I was just going up and I was just like, just leave me alone, let me do my own thing, or I'm gunna kill you. So if she had been attacked she might have thought it was me, but I wouldn't have been, I, I wouldn't have hurt my mum, at, at all." (ERISP, at A180) The accused then said that the argument with his mother was two to four weeks before the interview. 29The accused explained to the police officers, during the course of the interview, that he makes spears in the back yard with metal and knives. During the interview, the accused said: "... I'm not into like knives and stuff, I'm just into spears. Like I'm not into killing people, I'm just into spears." (ERISP, at A191) 30Later he said: "I've got a car and my mum's dead so I think if I did it ... I would put her in the trunk... but I didn't do it and I have no idea about it..." (ERISP, at A222 - A224) 31He then informed the investigating officers that he did not want to answer any further questions. Autopsy 32Professor Tim Lyons conducted the autopsy and observed a complex pattern of stab wounds to the torso and upper limbs. There were 18 wounds, 22 skin nicks, three scratches and one abrasion. 33There were a number of sharp force injuries to both hands, typical of defence type injuries. There was a complex pattern of multiple sharp force injuries to the left shoulder and left arm area. They are consistent with a sustained assault, possibly involving the deceased using the left side of her body as a shield, and were, therefore, possibly also a form of defence injury. There was an unusual pattern of sharp force injuries predominately on the right hand side of the back consisting of multiple small skin nicks probably inflicted from behind. The chest and abdomen injuries were inflicted prior to death, but it was not possible to determine whether all injuries were inflicted ante mortem. 34Particular reference should be made to an incised wound in the upper left abdominal area with a depth of approximately 12 cm. It ultimately transacted the posterior wall of the right ventricle. This wound would over a few minutes have rapidly and inevitably led to death, even with immediate medical attention. It was considered to have been inflicted by moderate to severe blunt force trauma. 35I find that the deceased died from the effect of the knife wounds inflicted by the accused. Family background 36The deceased was a drug user and dealer in heroin, since at least 1981 (see criminal history of SDC). The accused's father was also a long term drug user and dealer in speed, heroin and cocaine. His father's family and drug connections are in Sydney. 37Growing up, the accused lived in several foster homes, with his father when younger and finally with his mother. The medical records note he had behavioural problems from a young age. 38In December 2008, the accused's father went missing after going to do a drug deal. Police commenced an investigation at that time after finding the accused's father's car burnt out in a remote location. During 2009, a number of people were arrested in relation to his disappearance, but it was not until 16 December 2009 that the body was found at the bottom of a cliff. The body was identified by DNA. One person has been convicted of the father's murder and a number of others with offences relating to his death. 39Witnesses observed that the accused's mental and psychological health deteriorated after the death of his father. Detailed mental health history 40The accused was first diagnosed with onset psychosis/drug induced psychosis in March 2009. He was arrested by police when running along a street with a carving knife. He had delusions that a sniper was after him and told police he had smoked cannabis. 41On 21 June 2009, the accused was admitted to Lismore Hospital for six days. He was fearful and believed people wanted to harm him. He was admitted to Tweed Heads Hospital on 26 January 2010 for nine days. On 27 February 2010, he was admitted to Lismore Hospital for 22 days. 42A community organisation assisting the accused had withdrawn support on 25 March 2011, because of his non-compliance with fortnightly Risperdal Consta injections and the increased risks to staff during home visits. DC was verbally aggressive with staff. 43He was admitted to the Richmond Clinic on 30 March 2011 as an involuntary patient, because of a psychotic episode, after being taken to the Byron Bay Hospital the day prior. He absconded from Richmond Clinic on 1 April 2011. The Clinic informed the deceased on 1 April 2011 that the accused had absconded and, on 4 April 2011, the Clinic contacted the deceased, at which point she advised that the accused had not yet returned home. A Missing Patient Form was also faxed to the Lismore Police informing them of the situation. The form, completed by Dr Siefken, noted a past history of psychosis and described DC as displaying "recent odd and aggressive behaviour". Medical staff variously observed DC to be extremely perplexed, guarded, thought disordered and suspicious (see Lismore Mental Health Unit records). The police called the Clinic on 4 April 2011 to see if he had returned. 44Dr Siefken states that on 6 April 2011 he was advised that the accused was in contact with his mother and was to return to the Clinic. This does not match other notes. The discharge summary states that the accused had been given 50 milligrams of Rispenline on 11 April 2011, which appears to be an error. The mental health worker contacted Lismore Mental Health Unit on 13 April 2011, and was advised that the accused had been "discharged", because he was "wasting a bed" and that his current location was unknown. 45On 14 April 2011, the deceased advised Mr Kirbach, the mental health worker, that the accused had returned home, was tired and his mobile phone had been switched off. 46Phone messages were left for the accused by the mental health worker and for the deceased on 18 and 19 April 2011, and on 19 April Mr Kirbach, together with a nurse, went to the deceased's home but found no one there. Mr Kirbach made a statement for the police without the benefit of records and in it, stated that when the deceased told him that the accused had returned home, she also requested that Mr Kirbach come and assess the accused's mental health with a view to having him re-scheduled (statement of Mr Kirbach of 14 July 2011). Mr Kirbach required an Acute Care Team member to accompany him and they were not available. He said that the accused was on the list for the Acute Care Team to visit on the weekend of 16 and 17 April 2011 but for "various reasons" this did not happen: see statement of Mr Kirbach of 14 July 2011, at [22]. Psychiatric evidence 47On 10 June 2011, approximately one and a half months after the accused's arrest, Dr Bruce Westmore, examined the accused at the Adolescent Unit of the Forensic Hospital at Long Bay at the request of the accused's legal representatives. The accused stated that he had smoked lots of weed and that he had heard: "Voices to tell me to kill my mum so I killed her." (Report of Dr Westmore of 14 June 2011) He said that the voices told him that SDC was going to buy a gun and if he did not kill her, she would kill him. Although he had heard voices before, these voices were different and he had heard them for a day. 48The accused said that he stopped taking his daily tablets of Seroquel about five days before the incident, as he did not think he needed them. He stated that when he was in the car, after the incident, he took some medication and the voices went away. When asked why he took the medication at that time, the accused said: "Because I knew I'd done something wrong, ah shit, look what I did." (Report of Dr Westmore of 14 June 2011) While staying at the motel, the accused stopped taking the medication again. 49Dr Westmore observed that at the examination the accused was a little dishevelled and dirty, but otherwise pleasant and cooperative with reasonable eye contact maintained. He spoke spontaneously and expansively but monotonously. The accused's affect was flat and unresponsive and his mood was quite subdued. 50Dr Westmore provisionally diagnosed the accused as suffering from a chronic paranoid schizophrenic illness probably aggravated by past use of cannabis. In June 2011, Dr Westmore concluded the accused was unfit to be tried at that time, but was of the opinion that he would likely become fit within twelve months. 51Dr Westmore examined the accused again on 9 December 2011. When asked about the incident, the accused said: "I was high all week, all month. I didn't get off the high. I kept smoking every day. Then I got voices that mum was a clone and that she was going to kill me. I got scared and I killed her. I just wanted to get out of the house as soon as possible." (Report of Dr Westmore of 13 December 2011) 52On this occasion, the accused said he had heard male voices internally and externally for a while and had stopped taking his medication about two months before the incident. The accused said that he had pretended to swallow the tablets in front of his mental health worker, but spat them out later. He also described smells and seeing things and said he was very paranoid. 53When asked if he had argued with his mother on the day of her death, the accused replied: "No, me and mum were on talking terms. She was just scared. I shouldn't have done it." (Report of Dr Westmore of 13 December 2011) 54The accused indicated he had been diagnosed with schizophrenia and said: "I've had schizophrenia for a long time and I kept smoking and it made it worse. I used to get really bored and stuff." (Report of Dr Westmore of 13 December 2011) 55The accused thought he had improved since being in hospital and said: "I think that this is the best place for me. I know I've got a mental illness (but before) I kept refusing to accept that I had a mental illness. I've been to groups and stuff (in hospital)." (Report of Dr Westmore of 13 December 2011) 56Dr Westmore concluded that the accused was, as at December 2011, fit to stand trial. Dr Westmore's opinion, which I accept is that: "On the balance of probability, this man was suffering from an acute exacerbation of his chronic paranoid schizophrenia at the time he killed his mother. Based on his history, his actions towards her were driven by paranoid delusional beliefs. He suffers from a disease of the mind (chronic paranoid schizophrenia), which would have totally deprived him of the knowledge that he should not have acted as he did. He would have available to him a mental illness defence to the charge of murder." (Report of Dr Westmore of 13 December 2011) 57At the request of the Crown, Professor David Greenberg, examined the accused on 11 and 15 April 2012 at the Bronte Unit at the Forensic Hospital. 58Professor Greenberg concluded that the accused suffers from: "A chronic schizophrenic disorder with mild negative features of schizophrenia including poverty of thought and ideation, blunted facial expressions (blunted affect - observed expression of emotion) and anhedonia. He also has marked deterioration in his level of functioning over the past two or three years which can be attributed to his schizophrenic illness and history of chronic substance abuse." (Report of Professor Greenberg of 3 May 2012) 59Professor Greenberg stated that the accused's account of what happened needed to be interpreted in the context of him suffering from his severe mental illness with the associated stated symptoms. 60The accused gave a more detailed account of events to Professor Greenberg. I do not repeat them. 61Professor Greenberg observed in the examinations that the accused made good eye contact, spoke in a monotone voice, gave a limited account of himself and had marked poverty of thoughts. He had blunted facial expressions and said he still had auditory and tactile hallucinations and visions. He reported paranoid thoughts but not overt delusional beliefs. He still feared people were trying to kill him but felt safe in hospital. There were no grandiose or referential delusions. He reported that aliens controlled his thoughts and they put thoughts in his brain such as "Ha, Ha, I'm in your brain." He said that he has had special powers since the age of 15. The accused displayed fair insight into his current illness and need for psychiatric treatment. 62Professor Greenberg is of the opinion that at the time of the alleged offences: The accused was likely suffering from a disease of the mind, namely the symptoms of his acute schizophrenic disorder which were auditory hallucinations and paranoid/grandiose delusions; The accused's non-compliance with medication, use of illicit substances and the inherent severity of his mental illness would have increased the instability of the mental illness and likely led to a deterioration in his schizophrenic mental state at the time of the alleged offence; The accused had a defect of reason caused by a disease of the mind at the time of the offences but it is likely the accused knew the nature and quality of his actions; The accused believed he was morally justified in his actions because he did not understand the moral wrongfulness of his actions as a result of his paranoid and grandiose delusions; The accused clearly understood the legal wrongfulness of his actions, however, his thinking was disorganised and influenced by his disease of the mind at the time of the alleged offence; On balance, it is likely the accused has a defence of mental illness; and The accused is fit to stand trial. Consideration and orders 63As is obvious from the foregoing, the accused was for some period unfit to stand trial and, on the basis of the expert evidence before the Court, I find that the accused is now fit for trial. 64As earlier stated, I accept the opinion of Dr Westmore, who examined the accused shortly after his incarceration and the events leading to the death of his mother and his arrest. To a large degree Dr Westmore's opinion is confirmed by the opinion of Professor Greenberg. 65There is no doubt that the accused suffers from a disease of the mind, being chronic paranoid schizophrenia and I accept that at the time of the acts which led to the death of his mother, the accused would have been deprived, by that chronic paranoid schizophrenia and his disease of the mind, of the knowledge that he should not have acted as he did. 66While there are some fine differences between the manner in which Professor Greenberg has expressed his opinion and the views expressed by Dr Westmore, in my view, those views are predominately confirmatory. To the extent that there is a difference of view, which I doubt, I prefer the view of Dr Westmore because of his greater history with the accused. Nevertheless, as earlier stated, Professor Greenberg confirms the existence of the disease of the mind and the acute schizophrenic disorder and also diagnoses auditory hallucinations and paranoid and grandiose delusions. While Professor Greenberg expresses the view that the accused would have understood the legal wrongfulness of his actions, he accepts that his thinking was disorganised and influenced by his disease and, that the accused believed he was morally justified in his actions because he did not understand the moral wrongfulness of his actions due to his mental illness. 67I accept the opinion of each of the experts that the accused has a disease of the mind being a disease capable of affecting the mind and having a mental origin. That disease is permanent but capable of being treated by medication. 68The onus of proving a mental illness defence to the crimes charged lies on the accused on the balance of probabilities: Mizzi v R (1960) 105 CLR 659. I accept, on the balance of probabilities, that the accused did not understand that what he was doing was wrong: R v McNaghten (1843) 8 ER 718; R v Porter (1933) 55 CLR 182 at 188 - 190. The accused was, at the time of the acts, unable to think rationally. 69I am also satisfied, beyond reasonable doubt, on the material and evidence before the Court, that, but for the possible defence of mental illness, the accused would be guilty of the offence of murder. 70Each of Dr Westmore and Professor Greenberg opined that the accused had a defence of mental illness to the charge and, as is clear from the foregoing, I accept that opinion and independently come to the view, on the basis of the expert opinions and the history of this matter, that the accused has a defence of mental illness. 71One further comment should be made. As is clear from the history that I have set forth in these reasons, the death of the deceased was an avoidable tragedy. The deceased contacted the mental health teams in order to have the accused scheduled, and re-scheduled. The accused's aunt contacted appropriate authority for the same purpose and to notify them of the strange behaviour of the accused. The accused had ceased his medication, because he considered he no longer needed it. A greater capacity to intervene at an earlier stage, or a greater preparedness so to do, would have obviated this tragedy. 72As a consequence of the foregoing the Court determines that there should be a finding of a special verdict, namely, that the accused, DC, is not guilty of each of the charges by reason of mental illness. 73As a consequence of that verdict the Court makes and enters the following orders: (i)Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty of each charge by reason of mental illness; and (ii)Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, DC be detained in Austinmer Unit Forensic Hospital, Malabar, or such other facility as the Mental Health Review Tribunal may determine 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: 20 September 2012