Supreme Court New South Wales Medium Neutral Citation: R v Shiels [2011] NSWSC 1693 Hearing dates: Monday 15 August 2011 to Wednesday 24 August 2011 Decision date: 29 August 2011 Jurisdiction: Common Law - Criminal Before: Barr AJ Decision: Accused found guilty of murder Category: Sentence Parties: Crown - Regina Accused - Ronald Shiels Representation: Crown - BH Hughes Accused - JP Watts Crown - Solicitor for Public Prosecutions Accused - Legal Aid Commission of NSW File Number(s): 2010/96389 VERDICT 1HIS HONOUR: The accused, Ronald Shiels, is charged with the murder on 20 April 2010 at Lurnea of Trevor Shiels. Before the date fixed for the commencement of this trial the accused applied for an order for trial by Judge alone. The Crown consented. The trial was accordingly conducted before me as Judge of the law and the facts. 2At the commencement of his trial the accused pleaded not guilty of the murder but guilty of the manslaughter of Trevor Shiels. The Crown declined to accept that plea in discharge of the indictment. The principal question, therefore, was whether the accused is guilty of murder or only of manslaughter. Having heard the evidence and the submissions of counsel upon it, I retired on 24 August 2011 to consider my verdict. This is my verdict and these are my reasons. The events leading to the death of the deceased 3The deceased and his wife Jean Shiels lived on the South Coast of New South Wales. To celebrate the deceased's birthday one of their sons, Luke, held a party at the house where he and his partner lived at Lurnea. On 19 April 2010 the deceased and his wife travelled there by car. Accompanying them were their children Ronald (the accused), Aaron and Jamie. The party began during the afternoon and continued into the evening. Not long after midnight the accused took a knife and stabbed the deceased in the head. He died a few hours later. 4The deceased was a big man. He was a driver, 1.75m tall. He weighed 84 kg. He liked to drink alcohol. The accused is a young man of slight build. The two of them used to spend time together and do things together and seemed to like each other. Occasionally, however, they would fight. That seems to have happened when the deceased had had too much to drink. On one occasion the deceased put the accused's head through the house wall. They had other scraps as well. Generally, however, they got on well enough. 5The accused had a history of mental illness. For some time until October 2009, perhaps as long as two years, he had been exhibiting behaviour that concerned his mother. Having been given an apparently satisfactory answer to a question he would repeat the question. That happened a lot. Sometimes he appeared not to understand what his mother was telling him. He stopped caring about his appearance and his dress. He began hearing voices. He became afraid that someone was out to attack him, so he kept a hockey stick to protect himself. He was then living with a young woman, Nicole Holland. They had a daughter, born in April 2008. The accused began to deny that he was the father of the child. In his accusations of infidelity he named as the father his own father, Ms Holland's father, other relatives and other persons they knew. There was no basis of truth for any of these beliefs or allegations. During the same period the accused's relations with his father deteriorated. 6In December 2008 there was a confrontation between the deceased and the accused. The accused had been out with his sister Samantha and she had become involved in an argument with a man. The accused had come between them to protect her but had accidentally put his finger in her eye. When they arrived home her eye was sore and the deceased, who had been drinking, saw it and jumped to the conclusion that the accused had assaulted her. He remonstrated with the accused and an argument developed. He seized the accused's throat. The accused sustained a minor injury to the forehead. He picked up a shovel and did the deceased a nasty injury to the arm. 7In October 2009, I think following another confrontation, the accused was taken to Campbelltown Hospital. The record shows that he was admitted under the provisions of the Mental Health Act 2007 as mentally disordered. In part the clinical record reads - He is hostile and angry. He believes his girlfriend is cheating on him and his daughter is not his, although he has no evidence of this. He admits to wanting to hurt himself and others. He is insightless and wants to break out of hospital. 8Dr Yenson, a psychiatrist who attended the accused, concluded that he was acutely psychotic and required treatment in hospital for his own safety and that of others. 9The Hospital records also show that the accused gave a history of cannabis use commencing at 15 years of age. That would have been in 2004. More recently that had become a daily habit and he was smoking 10 to 20 cones a day. He reported binge alcohol use in the order of 12 or more standard drinks per session. He was commenced on the anti-psychotic drug Olanzapine. By 27 October he had substantially improved and was acknowledging that he might be suffering from a mental illness. He agreed to counselling for alcohol and cannabis abuse. He no longer had suicidal or homicidal thoughts and no longer believed that his girlfriend had been unfaithful. Following periods of escorted leave without incident he was discharged on 4 November 2010. His medication was then Olanzapine 7.5 mg mornings and 10 mg nightly. He did not believe that he needed to take the drug but agreed to do so. At the time of discharge there was no evidence of persisting psychotic symptoms. 10When he was discharged he went to live with his family on the South Coast. Ms Holland and the child began to live there as well. 11He was referred for follow up to the Youth Mental Health Team in Campbelltown. A case manager was appointed. He was reviewed by the Psychiatry Registrar once and failed to attend a subsequent planned appointment. He had several phone and face to face contacts with the case manager and there were a number of documented occasions when he was unable to be contacted. On each occasion of review he was noted to be symptom free and to be supported by his family. 12After about 2 months together in the accused's parents' house, the accused and Ms Holland separated. She took their child and returned to live at her parents' house at Campbelltown. They separated on good terms, for reasons which had nothing to do with the accused's state of health. So they came to live a long way apart. They had no transport of their own and could not easily reach one another. They spoke every day on the telephone. In a conversation that took place about 3 weeks after their separation Ms Holland noticed a change in the tone of the accused's voice. He spoke in a more jumpy fashion, asking whom she had been with on an occasion she was telling him about. She detected a re-emergence of the accused's preoccupation with infidelity and asked him about his medicine. He told her that he had stopped taking it. 13In March, the deceased told Mrs Shiels that the accused had stopped taking the medicine. She could see a change in him. He was more unsettled and began again to speak repetitively. 14The child's birthday was on 12 April and Ms Holland was expecting the deceased to take the accused to Campbelltown to collect the child for her birthday. That did not happen and Ms Holland was angry. She spoke on the telephone to the accused. He was upset that he had been unable to go to Campbelltown, having no means of his own of getting there. There was nothing he could do. 15The two spoke again on 19 April before the accused left to attend the birthday party. She said he sounded "totally fine". She spoke to him again for 10 or 15 minutes on the same evening and again he sounded fine. 16Those attending the party were the deceased, Mrs Shiels, Luke Shiels, his partner Tamara Aldred, the accused, Aaron Shiels and Jamie Shiels. Not long after the deceased's family arrived some of the party went to buy beer at a local shopping centre. Records show that they purchased 30 cans of full strength VB Bitter at 2.01pm. Several members of the party began to drink the beer. Those drinking were the deceased, Mrs Shiels, Luke Shiels and the accused. Neither of the other sons of the deceased drank alcohol. I am satisfied that Ms Aldred drank only one can of beer while the party lasted. There were various estimates of the rate at which individuals drank, and it is not possible to be precise, but I think that Luke Shiels, the deceased and Mrs Shiels probably drank the most. The accused also had an amount to drink. The beer ran out and further supplies, comprising 24 stubbies of VB Bitter, were purchased at 6.52pm. At the same time 4 cans of a Midori mixer were purchased for the deceased's exclusive use. During the evening Mrs Shiels walked across the road to visit a neighbour she knew, Mrs Santos, and took a 6 pack of stubbies with her. The deceased and other members of the party also visited Mrs Santos' house during the evening. The deceased drank the Midori mixers. Whether the 24 Stubbies were all consumed I cannot say, but given that 5 hours elapsed between their purchase and the events that took place around midnight, I should think that most or all of them were. 17There was a part of the evening when Ms Aldred and the accused were the only adults in the house. Ms Aldred could see that the accused was upset about his recent separation from Ms Holland and their child. She gave this evidence - Q. And where was Ron when Trevor left? A. He was with me. Q. So he'd come from outside back inside, had he? A. Yes. That's when we had our talk. Q. In the course of that conversation I think you told us that he told you of his unhappiness? A. Yes. Q. And that unhappiness concerned the break up of his relationship? A. Yes. Q. Was that the topic of the discussion? A. Yes. Q. Anything else? A. No, just that he missed his daughter and all that sort of stuff. ... Q. Was it apparent to you when you had that chat to Ronnie, that he was, I think your words were "not himself"? A. That's true. Q. Are you able to describe by reference to what you actually saw, as opposed to what you may have concluded he was thinking what was it that you observed about him that made you conclude that he wasn't himself? A. He was just heart broken, he was crying, and yeah. Q. Did he seem upset? A. Yes. Q. Did he seem at times distracted or agitated? A. A little bit. He would just walk around, sort of thing. Q. Would it be fair to say he appeared as if he couldn't sit still? A. Yes. ... Q. Was anyone else present at any time during that conversation that you had? A. Was only me and Ronnie. Q. In that conversation, can you remember any of the specific words used? A. He was talking about his ex girlfriend, how he still loved her and they've had problems and he missed his daughter. And I was just trying to say, you know, "Things will work out." Q. When you say his ex girlfriend, did he refer to her by her name, Nicole? A. Yes. ... Q. Do you recall if he said anything about he was sad or upset because he was unable to live with Nicole and his daughter? A. Yes, he couldn't live without them. He wanted them. Q. Do you recall him saying anything about the fact that he wasn't able to live with them was causing him to be upset? A. Yes. ... Q. Did he say anything to you in that conversation that didn't seem to you to make sense, it seemed to be a bit silly or emotional or not reflecting reality? A. Yeah, you could see he couldn't talk properly. He was actually, not confused, but he just wasn't himself. Q. I know it's difficult. What I'm asking you to do is to try your best and whatever words you are comfortable with to describe what you actually observed. So when you say he wasn't himself, what did you observe specifically? A. Just he was real down in the dumps, he looked depressed. Q. When he was talking, are you indicating at times he didn't seem to finish sentences? A. No, I had to ask him to go again. Q. So we're clear for the transcript, are you agreeing with me that you had to ask him further questions about what he'd said because he hadn't said a complete sentence? A. Yes. Q. Did he say sentences which you didn't understand or didn't seem to make sense? A. Yes. Q. Did you have to ask him to clarify what he was talking about? A. Yes. Q. Can you recall specifically any of those instances using his words? A. I can't. 18During the evening the members of the party were playing music and dancing. A number of photographs taken by Mrs Shiels show that the mood was happy. There was a good deal of good natured horseplay, described by witnesses as "rumbling". 19Aaron Shiels came across a container of superglue and showed it to the accused. He dared him to put it on the deceased. The accused danced with the deceased and put the glue in his hair. The deceased realised that something had been done to him when his scalp began to burn. He remonstrated with the accused and Aaron for doing such a thing to him. The mood of the party changed. The best description of what followed came from Ms Aldred. She had nothing substantial to drink, so her faculties were not affected by alcohol. I thought her an honest witness and, with one exception I shall mention, an accurate observer. My understanding of what happened derives mainly from her evidence. 20Ms Aldred tried to help the deceased remove the glue from his hair and ended up cutting off some of his hair. 21The house was not a large one. The front door led directly into a lounge and that led onto an open room that had a dining table and chairs on the left and a kitchen opposite on the right, viewed from the front door. In the front room were lounge chairs. 22A series of events took place. The evidence does not enable me confidently to find in what exact order they happened, save to say that they began with the deceased's realisation that the accused had put superglue in his hair and ended with the stabbing of the deceased. 23The deceased berated the accused. He called him a fucking dog and a fucking little cunt. He said that he would kill him. He said that the accused had put him in hospital last time, referring to the incident of December 2008, but that he would put the accused in hospital this (or, perhaps, next) time. The accused responded by asking the deceased whether he wanted to have a go and said that he should have killed him with the shovel. The deceased told the accused that he would not take him back home and that he would have to go and live with Ms Holland. He invited him to go outside the house and fight. On the evidence of Ms Aldred there were two such invitations. The first happened when the deceased and the accused were in the front room. The deceased was standing and the accused was seated on a lounge chair. As the invitation was issued the accused tried to rise from the chair and leave the room and the deceased pushed him back onto the chair. The other invitation was issued when they were at or around the dining table. The substance of the invitations was much the same. The deceased specified a fist fight with no weapons. On one of the occasions he walked to the front door, making, it seemed, to leave the house in preparation for a fight. However he stopped there and did not leave the house. Neither the accused nor anyone else followed him even as far as the front door. The deceased returned to the body of the house. No fight eventuated. 24Late in the evening, probably about 11 or 11.30pm, Luke Shiels left the house on a bicycle and went to buy a cake. He bought the cake and brought it back to the house. He said in evidence that he did not see the superglue episode but that the first thing that happened as he came back into the house with the cake was that the deceased complained to him about the glue in his hair. 25Other witnesses put these events in a different order, with the serving of the cake before the superglue episode. I think, however, that Luke is likely to be correct in his recollection of what he was told as soon as he arrived with the cake. 26This accords with the evidence of Ms Aldred who said that the first invitation to fight was issued in the front room. Then followed the superglue incident. Then they had the cake and then the second invitation to the fight "fist on fist", issued at the table. Ms Aldred said in one part of her evidence that she thought that about half an hour separated the two invitations to fight. In another part she said that an hour or an hour and a half or two hours elapsed between the superglue incident and the stabbing. 27I am unsure about Ms Aldred's estimates of elapsed time, particularly in view of her estimate that the first slab of beer was consumed in about 45 minutes, which is demonstrated to be incorrect. Her inability to estimate times accurately, however, does not to my mind reflect upon her honesty or her reliability generally, and I think, bearing in mind her evidence and the evidence of Luke Shiels, that within a short time after he realised that there was superglue in his hair the deceased issued the first invitation to fight, that when that invitation was not accepted and not persevered with the party ate the cake which had arrived in the meantime, and that later the deceased, still angry, issued a second invitation to fight. The second invitation was not accepted and not persevered with. The time that elapsed between the two invitations might have been the half hour estimated by Ms Aldred. It had to be long enough to enable the party to eat the cake. 28The accused had with him his mobile telephone. During the evening he had had the conversation with Ms Holland that I have already referred to. At 12.01am on 20 April he texted her asking if she were awake. She was asleep and did not see the message. At 12.25am he sent her a text message as follows: Im goin to kill me dad i put supa glue in his hair lol and im fightin wif him c wat happenz 29The events which led to the stabbing of the deceased were violent and swift. They would not have permitted the accused to take time off to send that text message. He must have sent it before the events I shall now relate. 30The accused was facing the back door with the kitchen on his right and the table in front of him or to his left. He picked up a beer bottle and threw it at a fish tank which was mounted to the left of the table as he looked at it. Perhaps the bottle was aimed at the deceased. At any rate, it hit the fish tank and the tank and the bottle broke. He picked up a telephone and threw it. He moved to his right and went into the kitchen. He took a large carving knife from the kitchen drawer and swiftly moved from the kitchen towards the deceased. I accept the evidence of Ms Aldred who says that the deceased took a couple of steps back. The accused rushed towards him. Luke Shiels moved so as to place himself between the advancing accused and the deceased. He tried to grasp the accused around the arms but his grip loosened and he slid down the body of the accused as he advanced. The accused, reaching over Luke Shiels, put the knife into the deceased's temple. He injured Luke Shiels as he did so. The deceased walked to the front door and went outside the house. Ms Aldred ran to his aid and then telephoned the emergency services. That call was made at 12.31am. 31It follows that the accused stabbed the deceased about 5 minutes after he sent the text message to Ms Holland. 32The deceased collapsed outside the front of the house and those present tried to help him. For the 16 minutes of the call to emergency services Ms Aldred and others, following the directions of the operator, positioned the deceased appropriately and held towels to his head. During that time the accused, having been at first punched and restrained and then released by Luke Shiels and Jamie Shiels approached the deceased and said that he was sorry. The others were so concerned about the deceased that the accused was left to his own devices. He did not run away, however. He went to Mrs Santos' house and telephoned Ms Holland from there. She was asleep and had not read the message at 12.25am. He told her that he had done something wrong. He thought that he had hurt his father, that they had had a fight. He said that he had to go, that he was going to hand himself in, to do the right thing. The accused left Mrs Santos' house and walked to the street. He told the police officer that he was the one that they were looking for, that he had stabbed his father. According to Sergeant Hecimovic, whom I accept, the accused appeared quiet and cooperative, remorseful. Sergeant Hecimovic denied that he was unemotional, monotonous. 33The knife penetrated the deceased's skull and inflicted a wound about 7.8cm long. The resultant damage to the deceased's brain was such that surgeons decided not to operate. The deceased was unconscious, connected to instruments that were keeping him alive. They were turned off at about 2pm on the same day and the deceased died. 34After his arrest the accused was taken to the police station and allowed to sleep before being interviewed. The interview included these questions and answers: Q42O.K. Mate, from what I understand at about 2.30pm yesterday being Monday, the 19th of April 2010 you attended 28 Bligh Avenue, Lurnea in relation to your father's 42nd birthday party. Is that correct? AYes. Q43Mate, what happened? AMy brother told me to put superglue on dad's hair. So I put superglue on dad's hair and then my dad was sitting in the table, he was stewing on it. As he was stewing on it, he offered me up, he wanted to take me outside to have a fight with me. And he had walked towards me and had used such force and that's when I grabbed the knife and stabbed my father. Q44And what happened then? AI got scared because I didn't mean to do it, but other than that, yeah, I walked outside. My brother, my brother actually, he actually hit me before, I thank him for doing that. And then I walked outside and I went for a walk down the street, I walked back after 20 minutes' time and i told the coppers that I had done it. ... Q90Yeah. AJust as a joke and I put superglue on his hair and then that's when he got angry with me. He actually got angry with Aaron too. Q91How did you put the glue on his hair? AI was dancing and that. Q92Yeah. AAnd like I was just, like yeah, put my arm up over his head and put it in his hair. Q93Where was your dad when you did that? Ain the lounge room. Q94Was he standing up or sitting down? AStanding up. Q95O.K. And how much did, how did you put it in his hair? Did you just have it on your hand - - - ASqueeze it out of the tube into his hair. Q96O.K. and what did he say then? AAt the time he didn't, he didn't know until it started burning his scalp. Q97And then what happen? AAnd then he went to the bathroom and then he come back out after he went to the bathroom, then me brother's girlfriend got the scissors and tried choppin' it out of his hair. Q98Yeah. AAnd then he was sitting at the kitchen table and then that's when he, he started getting angry. Q99When you said he started getting angry, what was he saying and doing? AHe was just saying like, You're a fuckin' little cunt, you're not coming back home with me, you can get fucked, fuck off. Just stuff like that. Q100Yeah. And what were you thinking at that time? AI was just keeping my cool. But when he had jumped out and then started fuckin' coming towards me, that's when I, yeah, jumped up and like, yeah, fuck it, like you know. Q101When you said he started coming towards you, which room were you in? AIn the lounge room. Q102And was he in the lounge room as well at that time? AYes. Q103And where were you, were you sitting or standing up or? AI stood up. Q104So what, you stood up as he approached you or you were already standing? AAs he was yelling to me, at me at the table, that's when I stood up. Q105O.K. And you said he approached you, how did he approach you? AHe's just walked up to me and grabbed me and after he grabbed me, that's like, I was, actually fell back onto the lounge. And then after that, I - - - Q106How did he grab you, mate? AHe just like, it was like a push sort of thing. Do you know what I mean? Q107Yeah. Did he use one hand or two hands? AJust the one. Q108And where did he push you? AJust In the chest. Q109And as a result of that, that caused you to fall back, did it? AYes, because it was, become unbalanced and yeah, fell, fell back. Q110Did you actually fall down or? AI just fell back onto the lounge into the cushioning, mate. Q111Yeah. What happened then? AThen he walked back over to the table and then that's when he kept going off at me, that's when he started offering me up to go out the front and --- Q112What was he saying to you when he kept going off at you? AHe was saying, Well let's go out the front and like you can get fucked. You're not coming back with me, you're not coming home. You can get fucked, and all this shit. Q113Yeah, what were you saying to him? AI was like fuckin', Well bring it on. Q114And then what happened? AAnd then that's when I walked into the kitchen, because he, he wanted like, I was pretty scared at the time and that's when I walked in the kitchen and grabbed a knife and walked out and done what I done. Q115Why did you go into the kitchen? AA stupid thing to do. Q116Why did you go into the kitchen though? ATo get a knife. Q117And where was everyone else when you walked into the kitchen? AJust in the room, keep around the table. Q118And the table's in the lounge room? AYes. Q119So when you say everyone else is at, like all your brothers and your mum --- AYeah, my, Aaron was in bed at the time. Q120Yeah, O.K. AWhen I actually hit my dad with the knife, that's when Aaron jumped out of bed. Q121Yeah, all right, so you've gone into the kitchen and grabbed the knife. What was your dad saying while you were in the kitchen? AHe was trying, trying to get me out the front. Q122What was he saying, do you remember? AYeah, he's like, Get out the front, I'm gunna fight ya. I'll fight fist on fist. Q123And what were you saying? ASaying, I was just like, Yeah, I'll fight ya. And all of a sudden I come to it and I had a knife in my hand and that's when I stabbed him. Q124Yeah. So why did you grab the knife? AAs I said, it was just a stupid thing to do, I shouldn't have grabbed it. Q125And as you've come out of the kitchen, what were you thinking? AI blanked out. I didn't know what to do. I just swung it, when I swung it, I think it hit him and when it hit him, yeah, I fuckin' actually stepped back and realised that I shouldn't have done that. Q126So as you've come out of the kitchen, can you just go through slowly exactly what happened and where everyone was standing and - AWhen I was coming out of the kitchen, everyone was standing around the table, my brothers, Aaron was in bed, standing around, everyone was standing around the table and yeah. Q127Where was your dad? AI'm standing on the opposite side of the table. But as I was walking out of the kitchen, that's when he had come around the table and actually he was like yelling at me. And that's when I swung the knife and hit him with it. Q128Were you saying anything to him as you've come out of the kitchen? ANo. Q129All right. And did you approach him or did he approach you? AWhen? Q130As you've come out of the kitchen? AI approached him. Q131And as you've approached him, what was he doing? ASorry? Q132As you approached him, what was he doing? AHe put his arms up in the air. Q133How did he put his hands up in the air? ATo try and guard himself. Q134Can you show us with your hands how he guarded himself? ALike that. Q135All right, so you, just for the purpose of the transcript, so you've got both arms up with your fist above, the level of your head and your forearms covering your face, is that correct? AYes. Q136O.K. And what did you, so you've approached him? A(NO AUDIBLE REPLY) Q137And just before you struck him, did he say anything? ANo. Q138Did you say anything? AHe did say, Youse gunna come out the front, or just kept on ..... Q139And what did you say to him as you've approached him? AWhat did I say to him? Q140Yeah. AI didn't say nothing. Q 141What was the last thing you said to him? AThe last thing I said to him, I don't remember. Q142What was the last thing he said to you? AThe last thing I remember him saying to me is, Come out the front. The accused described the knife and the answers continued - Q191Why did you pick that knife? ABecause it was there. Q192Yeah, whereabouts was It exactly in the kitchen? A Still in the kitchen bench. Q193Just sitting on the bench? A Yeah. Q194Were there any, any other knives in the kitchen? A Yes. Q195Was there any reason you chose that knife? ANuh. Q196Mate, what were you thinking when you picked up the knife? AI didn't think nothing at the time. I didn't really even know what I was doing until after I done it. ... Q209And mate, do you remember what you text your ex-girlfriend? AYeah, I think I remember, yeah, I'm having an argument with my dad, I think we're going to get into a fight, if we get into a fight I'm going to stab him. Q210Why did you say that? AI don't know. Q211Mate, we've got a, sorry, I should say this, I've got a copy of your mobile phone, we took a photocopy of the screen of the text message. Mate, I'll show it to you. AYeah, I remember the text --- Q212I'll show it to the video screen, it's, the time on the phone is 1.51 pm. It says, do you agree that time's incorrect though? AYep. Q213It says, I'm going to, I'm going to kill me dad, I put superglue in his hair and ..... and I'm fighting with him, see what happens. That's the message that you were just talking about? AYep. Q214Mate, can you tell me why you sent that? ANo, 'cause I was, yeah, 'cause I was fuckin', because when me dad always argues with me, I get scared and that's why I sent it to me ex-girlfriend because she knows what I'm like, like I don't want to take shit of me dad. Do you know what I mean? And that's why I sent that message to her. Q215When you say you don't want to take shit off your dad, what do you mean? ANo, 'cause he always yells at me and fuckin' he always wants to like fight me and shit. Q216And you said you get scared. What do you mean by that? A'Cause he's scary bro. Q217What do you mean he's scary? AHe tries to stand over me. Q218Yeah, Has he hit you in the past? AYeah. Q219When was the last time he hit you? AThe last time we had a fight when I hit him with the shovel. Q220How long ago was that? AI don't remember, mate. Q221Are you talking years or months? AProbably months. ... Q267O.K, So before you hit your dad with the knife, what was everyone saying in regards to the knife? ABefore I hit my dad? Well, they tried to stop me. Q268How did that, how did that all happen? AWhat do you mean? Q269Well you said they tried to stop you, is that right? AYes. Q270Yeah, how did they do that? AHow did they do that, well they tried getting in the middle and they tried stopping me but if I remember rightly my brother, Luke was in the middle and as my brother, Luke was in the middle I think I swung a knife over him and as I swung it over him it hit my dad. Q271Did you swing the knife at your brother, Luke at all? ANo. Q272Why did you swing it at your dad? ABecause I put superglue in his hair and he was offering me to go outside, he wanted to fight me. ... Q299And how, where were your dad's hands when you've struck him with a knife or just prior to it? AHe put, he put them up like that and put them over his head. Q300Why do you think he put them over his head? AWhy do I think that? Why do I think he put them over his head? Q301Yeah. ATo try and guard himself. ... Q335Mate, just taking you back to when you grabbed the knife, mate, when you grabbed the knife, what did you think was going to happen then? AI didn't know what was going to happen, it ain't like, I didn't, I mean, yeah, I wasn't thinking at the time. I was like, I was blanked out sort of thing. Do you know what I mean, like I didn't know what was going to happen? Q336When you say you were blanked out, what do you mean? AI didn't see what was going to happen, I just done it. Q337When you grabbed the knife, did you think you were going to use it? AYeah. Q338And how were you going to use it? AJust swing it. Q339When you say, Swing it, do you mean swing it at your dad? AYeah. Q340And what do you think would happen if you swung the knife at your dad? APut him in the situation he's in now, therefore fuckin' feel fuckin' real bad for what I done. The issues raised at trial 35Mr Watts, for the accused, did not contest that the accused had done the act that caused the death of the deceased. The accused had admitted as much by his plea. Mr Hughes fairly conceded that the use of the knife in the manner I have summarised implied an intent to do grievous bodily harm. It would follow that the accused was guilty of murder but for the partial defences raised, said to justify the plea of guilty of manslaughter. They were three, namely substantial impairment by abnormality of mind, excessive self defence and provocation. Substantial impairment by abnormality of mind 36The burden of proof of this partial defence rests on the accused. He must make it appear more likely than not that when he did the act causing death- (1) his capacity to understand events or judge whether his actions were right or wrong or control himself was substantially impaired by an abnormality of mind arising from an underlying condition; and (2) such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. 37As to the first matter the question is whether the accused's capacity to understand events or to judge whether his actions were right or wrong or to control himself was substantially impaired, not whether he simply chose not to consider whether what he was doing was right or wrong. An abnormality of mind occurs if the accused's capacity to function in the way mentioned so differed from that of ordinary human beings that the reasonable man or woman would term it abnormal. An underlying condition is a pre-existing mental or physiological condition. It does not have to be permanent but it is not sufficient if it is only passing or lasts for only a short time. 38Not long after the accused was taken into custody following his arrest he came under the care of the psychiatric staff of Justice Health. He reported that he had not taken Olanzapine for 3 weeks and was immediately recommenced on that drug without further diagnosis. On 22 April a senior nurse noted that he was not suffering from auditory hallucinations and had last done so on 18 April. The nurse did not note what the asserted hallucination had been. The note went on to say that that had resulted in an anger explosion with his girlfriend. 39Ms Holland was asked about this. The only part of her evidence that could be understood as relating to any overt sign of psychosis was that in which she described the change in the tone of the accused's voice as he asked her whom she had been with. The nurse would have called that a delusion, not a hallucination. That event, Ms Holland said, happened some time before the day before the deceased's party and death, certainly more than one day. Ms Holland described her anger upon learning that the accused was not going to arrive and pick up their daughter for her birthday, but that had nothing to do with any psychotic symptom. No doubt they also discussed their other problems, including difficulty in finding accommodation and difficulty managing their child at night. But none of these things had anything to do with psychosis. 40It is therefore difficult to understand what the auditory hallucination was that the accused was telling the nurse about. It seems to me that if there had been an explosion of the kind described Ms Holland would have remembered it. 41The accused spoke to Dr Nielssen, Psychiatrist, on 17 June 2010. He spoke to Dr Allnutt, Psychiatrist, on 12 February 2011. He gave both of them accounts of what happened though it seems that they had difficulty in extracting information from him. 42The accused told Dr Allnutt that he had stopped taking his medication about 2 to 3 weeks before the offence because he had stopped hearing voices about 2 weeks earlier and thought he was better. He had taken cannabis twice between discharge from Campbelltown Hospital and the offence. On the first occasion it made him feel bad and he had paranoid thoughts about his girlfriend cheating on him. That idea was no longer active at the time of the offence. There was no reported adverse effect following the second occasion. 43It was submitted on behalf of the accused at trial that the accused, having been diagnosed psychotic with schizophrenia in October 2009, having been treated with Olanzapine and having been discharged apparently symptom-free on a regime which included taking Olanzapine, the accused had ceased taking the drug and had thereby put himself at risk of degenerating into the condition in which he was the previous October. These things were pointed to as evidencing a deterioration in his condition- (a) the re-emergence of thoughts of infidelity, being delusive, attested to by Ms Holland; (b) the auditory hallucination recorded by the nurse as having occurred on 18 April, the day before the party; (c) two occasions on which the accused used cannabis, one of which produced a symptom of psychosis; (d) a deterioration noted by a number of people in the accused's speech and behaviour. 44These matters were put forward in combination as justifying the opinion of Dr Nielssen that the partial defence of substantial impairment by abnormality of mind was open to the accused. 45The existence of the renewed thoughts of infidelity may be accepted. The asserted auditory hallucination may be accepted though, being unidentified, it is unexaminable. The use of cannabis is established, though the single reported effect is shown by what the accused told Dr Allnutt to be the re-emergence of thoughts of infidelity as in (a) above. 46The lay evidence of the way the accused's speech and behaviour changed is for the most part equivocal. I accept that Mrs Shiels noted the beginning of a return of the accused's repetitious speech. Otherwise the descriptions of the various witnesses do not to my mind point to a psychosis but are as easily explained as normal behaviour in a troubled young man having overwhelming domestic difficulties. I can summarise these asserted indicators. There was evidence of the accused's agitation, anxiety, anger and snappiness, and mention was made that one of his knees rocked as it had done in 2009. None of these matters is specific to psychosis. All are consistent with it but equally consistent with the ordinary conduct of a well person. 47One event that was given rather more attention at trial was the behaviour of the accused during the heart to heart conversation he had with Ms Aldred on 19 April. I have extracted above what she said about that. These matters were put before Dr Nielssen. He commented on the evidence that the accused seemed to say things that did not make sense at times as follows - Yes, that seems to be a pretty good account of the communication disorder of a more acute type of mental illness with thought blocking and derailment of thinking. It's how a psychiatrist might describe it, but a lay person seems to be providing quite a good account of that. 48I doubt whether what was happening was thought blocking and derailment of thinking. Ms Aldred was describing the words and behaviour of a man who was severely troubled about his recent separation from his partner and his child and his despair in the face of circumstances he realised were out of his control. I think that what he said and the way he said it are explained by the position he found himself in. Any well person, I think, might be expected to speak and act as the accused did. I doubt whether these things were a symptom of psychosis. No other symptom of psychosis presented itself on that occasion. 49What the evidence relied on amounts to is that the accused took cannabis twice, suffering one resulting delusion, and experienced one unidentified auditory hallucination. No psychotic symptom was present on 19 and 20 April. This evidence shows that, having stopped taking Olanzapine, the accused was sinking once again into his illness. 50Dr Nielssen and Dr Allnutt gave evidence and their reports were tendered. They agreed on a lot of things. They agreed that the accused was diagnosed with the psychotic illness called schizophrenia and treated with an appropriate anti psychotic drug. They would agree, I think, that such a condition lasts indefinitely if not permanently and that treatment, including with drugs, must be given over a long term. They agreed that a patient like the accused, discharged on a regime which includes the taking of an anti psychotic drug, risks a relapse if he stops taking the drug. They agreed that at the time of the offence the accused was experiencing an abnormality of mind consequent upon ceasing to take the prescribed drug. They agreed that the accused was cannabis-dependent. They agreed that the ingestion of cannabis was significant in the development of the accused's psychosis. Dr Allnutt thought that his psychotic episodes were due to an underlying vulnerability to psychosis aggravated and probably at times triggered by taking cannabis, but independent of it. Dr Nielssen was of the view that the accused's condition at the time of the offence was brought about by the cessation of anti-psychotic treatment and a recent ingestion of cannabis and alcohol. They agreed that the accused had denied the existence of overt symptoms of psychosis at the time of the offence, for example hallucinations, delusions and thoughts of reference. However, Dr Nielssen thought that the accused was suffering from thoughts of persecution. 51Dr Nielssen thought that the accused had an underlying condition, namely his existing schizophrenic illness, that gave rise to an abnormality of mind in the form of impairment of intellectual function. The recent ingestion of cannabis played a part. This abnormality of mind would have increased the accused's perception of threat and his ability to control his actions because of his resulting heightened state of arousal. 52Dr Nielssen was asked how he came to the view that the accused's underlying condition impaired his capacity to understand events and the like. He explained that he believed that the accused had an underlying impairment in most aspects of mental function and that the level of impairment had increased because of cessation of medication and the effect of late use of cannabis. The abnormality that led to the acute episode in 2009 was probably operating at the time of the stabbing. The act of stabbing indicated a very acute state of arousal but the effect of the underlying mental illness made that more likely. In reaching that opinion he relied on his experience in having seen thousands of people in acute psychotic states and having interviewed hundreds of people with schizophrenia who had been charged with offences of violence. 53Like Dr Nielssen, Dr Allnutt is an eminent psychiatrist of long experience. He doubted whether the accused's abnormality of mind was such as to have impaired substantially his capacity to understand events or judge the rightness and wrongness of his actions or to control himself. He considered that there were rational motives for everything the accused did and no evidence of any underlying delusional motive. 54Experience suggests that persons who are mentally ill, including those who have lost touch with reality, can describe their thoughts and explain their reasons for their actions. Those who acted because they were afraid can say what they were afraid of. Those who acted under the influence of a threat can identify the threat and say how and why they thought it serious. It seems appropriate, therefore, to consider the accounts the accused gave to others within hours of the stabbing. 55As I have said, the deceased's harangue and threats lasted over a considerable time. During the minutes immediately before the stabbing those concerned were at or near the table and the kitchen. Although the deceased had started the row by taking hold of the accused in the front room and pushing him back onto the chair, that had been a considerable time earlier. Since then the deceased's aggression had been confined to words. The serving and eating of the cake had intervened. Repeated invitations to fight had been met with counter-invitations but no invitation had been accepted. About 5 minutes before the stabbing the accused, who could not then have been directly engaged or preoccupied with the deceased, sent a text message to Ms Holland. He said that he was fighting with the deceased and that he was going to kill him. That suggests to me that in a moment of relative calm the accused was deciding or had decided to attack the deceased. 56The best indication of what the accused perceived and why he acted as he did comes from what he told Detective Sergeant Wakeham. The accused answered questions without apparent difficulty. The answers I have extracted contain repeated statements of invitations by the deceased to go out and fight with fists. That is what I think happened. At answer 196 the accused said that he did not think anything when he picked up the knife. He did not know what he was doing until he had done it. I do not think that was literally true. I do not think that it indicates some automatic action. Picking up the knife, rushing towards the deceased and putting it into his head despite the efforts of Luke Shiels to stop him shows nothing less than an intention to attack and stab the deceased. That is what the accused told Ms Holland he was going to do. 57The substance of the answers 214 to 218 is that the accused was afraid of being hit once again by his father. It would be surprising if that were not literally true. Mrs Shiels saw fear in his eyes. If he had feared anything more than a repetition of what had happened before, I think that he would have said so. 58To me, these answers show that the accused had a good appreciation of what was happening. He seems to me accurately to have perceived the nature of the threat. I do not think that the accused had any increased perception of threat. The deceased wanted to go out and fight him. The accused's answers show that he acted as he did because he was no longer prepared to put up with his father's belligerent conduct towards him. As soon as he had stabbed him the accused expressed his remorse. He knew then and said repeatedly that he had done the wrong thing. 59Everything that happened, it seems to me, is explicable by increasing anger following a joke that went sour, by increasingly angry words, by loss of temper and finally by loss of control, the accused opportunistically taking hold of a knife and using it. I do not think that his loss of control resulted or was made more likely by any underlying condition that he had. He was angry because the deceased wanted to fight him once again as he had done in the past. He had had enough. The drink he had taken may well have disinhibited him. He did what he said he was going to do and he dealt the deceased a blow likely to kill him. 60Although the accused was probably slipping back towards a psychotic state, there is no evidence that I accept that he was manifesting frank symptoms of psychosis. I acknowledge Dr Nielssen's belief that the accused was experiencing unreasonable persecutory thoughts, but there was no outward manifestation that he was. However ill he had been in 2009 and however ill he might later become, I do not think that he was seriously ill at the time of the party. It seems to me that everything the accused did and said at the party is, as Dr Allnut thinks, explicable on a rational basis when regard is had to all that was besetting the accused at the time and the nature of his relationship with the deceased. 61Although the possibility cannot be denied that the accused's capacity to understand events or judge whether his actions were right or wrong or control himself was impaired, I do not think that any impairment, if it existed, was substantial. 62In my opinion everything that happened probably happened quite independently of any condition suffered by the accused, any abnormality of mind. I do not think his abnormality of mind substantially impaired his appreciation of what was happening. He understood events perfectly. It did not affect his capacity to distinguish right from wrong. He knew when he stabbed his father that he was doing wrong, as his immediate remorse and confession show. He lost control because he was so angry that he lost his temper. 63The accused has failed to satisfy me on the balance of probabilities that his capacity to understand events or judge whether his actions were right or wrong or control himself was substantially impaired by an abnormality of mind arising from an underlying condition. 64In considering whether such impairment was so substantial as to warrant the liability of the accused for murder being reduced to manslaughter the Court must apply the standards of the community. 65It is strictly unnecessary for me to deal with this question. I will do so for the sake of completeness. For the reasons I have given and applying what I understand to be the standards of the community, I am not persuaded on the balance of probabilities that any abnormality of mind impaired the accused's capacity to understand events or to judge the rightness or wrongness of his actions or to control himself so substantially as to warrant his liability for murder being reduced to manslaughter. 66This partial defence fails. Excessive self-defence 67If a person does an act which would constitute an offence only because he believes that it is necessary to do so to defend himself and if his conduct is a reasonable response in the circumstances as he perceives them he is not criminally responsible. When an act done in self-defence is not reasonable, however, that is called excessive self-defence. When there is a charge of murder and self defence is established but the accused's response is excessive, he is to be found guilty not of murder but of manslaughter. 68By entering the plea he did at the commencement of his trial and by the way his case has been conducted the accused asserts that he acted in self-defence but accepts that his response was unreasonable, that is, excessive. The only issue that arises, therefore, is whether the accused acted in self defence when he stabbed the deceased. The Crown must prove beyond reasonable doubt that he did not. 69I accept that, as he told Detective Sergeant Wakeham, the accused had been hit before by the deceased and that he was afraid of being hit again. However, there were things he could have done to avoid being hit other than the thing he did. The argument went on for quite a long time. One of the accused's brothers left the house and returned while they were going on. The accused himself could well have left. He could have sought the assistance of those present or the assistance of persons nearby. Rather than take avoiding action of that kind or any other kind, however, the accused regarded this as an occasion for a fight. He decided not to put up with the deceased's conduct any more but to carry the fight to him. The accused was not denied time in which to make calm decisions. He had enough time, for example, to send a text message to Ms Holland while this long argument went on. The message shows that by that time he had decided to attack the deceased. It is often said, and it was said at this trial, that threats to kill are generally empty. I accept that that is so, but I do not think that the accused's threat was empty, for within 5 minutes of expressing that intention the accused did the act that killed the deceased. The deceased was not offering him any violence at the time. He was unarmed. He even took a couple of steps back and raised his hands to protect himself. As I have already observed, I think that the accused well understood what was happening. I am satisfied beyond reasonable doubt that the accused did not believe his conduct necessary to defend himself. 70This partial defence fails. Provocation 71In a trial for murder the defence of provocation arises where the act causing death is the result of a loss of self-control on the part of the accused that was induced by the conduct of the deceased, including grossly insulting words or gestures towards or affecting the accused, and that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed the intent to kill or to inflict grievous bodily harm upon the deceased. It does not matter whether the conduct of the deceased occurred immediately before the act causing death or at any previous time. 72I have already explained why I think that the accused did the act causing death when he lost his self-control. That loss of self-control resulted from the acts of the deceased. They were the assault that he carried out initially, pushing the accused back onto the lounge chair, the repeated invitations to fight, the threats about the things that he would do to the accused, including putting him in hospital and killing him, even though they may not have been intended literally, the threat to abandon him and leave him to arrange his own accommodation and, finally, the grossly insulting words levelled at the accused. I will not repeat them. I am satisfied that the first part of the defence is made out. 73The second part is concerned with the question whether the conduct of the deceased could not induce an ordinary person in the position of the accused so far to lose self-control as to form the intent to kill the deceased or inflict grievous bodily harm upon him. In order to obtain a verdict of guilty of murder the Crown has to prove that the conduct of the deceased could not so induce an ordinary person in the position of the accused. 74The ordinary person is taken to be one who has the minimum powers of self-control expected of an ordinary citizen, who is sober and of the same age and level of maturity as the accused. 75I am satisfied beyond reasonable doubt that an ordinary sober citizen having the minimum powers of self control expected of an ordinary citizen and being of the same age and level of maturity as the accused could not by the deceased's conduct, words and insults have been induced so far to lose self-control as to form an intent to kill or inflict grievous bodily harm on the deceased. I say so because in my opinion the ordinary person would have resorted to the several other available ways of dealing with the problem. There was plenty of time to do so. I think that an ordinary sober person in the accused's position would have shrunk from inflicting grievous bodily harm upon the deceased. 76This partial defence fails. Verdict 77I find the accused Ronald Shiels guilty of the murder of Trevor Shiels. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2012