Supreme Court New South Wales Medium Neutral Citation: R v Wilson (No 3) [2013] NSWSC 1684 Hearing dates: 4-8 and 11 November 2013 Decision date: 15 November 2013 Before: Harrison J Decision: 1. I find upon the limited evidence available that the accused Joseph Rowan Wilson committed the offence of the murder of Scott Daniel Bryan on 24 November 2008. 2. I indicate that if the special hearing involving the accused had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment. 3. I nominate as the limiting term in respect of the offence of murder a period of 18 years commencing on 27 February 2010. 4. I find that the accused Joseph Rowan Wilson is not guilty of soliciting Gerard Michael Wilson between 29 January 2010 and 7 February 2010 to murder Krystelle Lee Collins by reason of mental illness. 5. I find that the accused Joseph Rowan Wilson is not guilty of committing an act between 15 December 2009 and 6 February 2010 intended to cause Krystelle Lee Collins to give false evidence by reason of mental illness. 6. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that Joseph Rowan Wilson be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. 7. Pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990, I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of these orders. Catchwords: CRIMINAL LAW - murder and other offences - special hearing - imposition of limiting term under Mental Health (Forensic Provisions) Act - whether mental condition relevant to length of limiting term - whether defence of mental illness otherwise available in respect of additional charges Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bhuiyan v R [2009] NSWCCA 221 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crime R 371 Gore v R; Hunter v R [2010] NSWCCA 330; (2010) A Crim R 353 Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171 R v AN [2005] NSWCCA 239 R v Bell (1985) 2 NSWLR 466 R v Falconer [1990] HCA 49; (1990) 171 CLR 30 R v Kemp [1957] 1 QB 399 R v Kirchner [2011] NSWSC 1516 R v Mailes [2004] NSWCCA 394; (2004) 62 NSWLR 181 R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85 R v M'Naghten (1843) 8 ER 718 R v Porter [1933] HCA 1; (1936) 55 CLR 182 R v Stiles (1990) 50 A Crim R 13 R v Wilson (No 1) [2013] NSWSC 1146 R v Wilson (No 2) [2013] NSWSC 1288 R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 Category: Principal judgment Parties: Regina (Crown) Joseph Rowan Wilson (Accused) Representation: Counsel: M Fox (Crown) M G Ainsworth (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Bayside Lawyers (Accused) File Number(s): 2009/262146 Publication restriction: Nil Judgment 1HIS HONOUR: On 9 September 2013 the accused was found by Johnson J to be unfit to be tried for the offences of the murder of Scott Daniel Bryan on 24 November 2008, of soliciting Gerard Michael Wilson between 29 January 2010 and 7 February 2010 to murder Krystelle Lee Collins and between 15 December 2009 and 6 February 2010 of committing an act intended to cause Krystelle Lee Collins to give false evidence: see R v Wilson (No 1) [2013] NSWSC 1146; R v Wilson (No 2) [2013] NSWSC 1288. In accordance with s 30(2)(a) of the Mental Health (Forensic Provisions) Act 1990 his Honour directed that a special hearing be conducted. Commencing on 4 November 2013 at Nowra, the accused came before me upon a special hearing pursuant to s 19 of that Act. 2Sections 19, 21 and 22 of the Act provide relevantly as follows: "19 Court to hold special hearing after advice received from Director of Public Prosecutions (1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court: (a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and (b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken. (2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. 21 Nature and conduct of special hearing (1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. (2) At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. (3) At a special hearing: (a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and (b) the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and (c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and (d) without limiting the generality of subsection (1), the accused person is entitled to give evidence. 22 Verdicts at special hearing (1) The verdicts available to the jury or the Court at a special hearing include the following: (a) not guilty of the offence charged, (b) not guilty on the ground of mental illness, (c) that on the limited evidence available, the accused person committed the offence charged, (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged. (2) A verdict in accordance with subsection (1) (b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38. (3) A verdict in accordance with subsection (1) (c) or (d): (a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates, and (b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances, and (c) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and (d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation." 3The procedures for a special hearing were considered in R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR 1. A special hearing should be conducted as nearly as possible as if it were a trial, including a formal arraignment and the proper reception of evidence: s 21(1) of the Act. Although the practice is not to be encouraged, the tendering of statements that are not read aloud during a special hearing does not infringe the section. A trial judge should expose his or her reasons for the findings that are made in respect of the elements of the offence. Background 4The facts, which I find beyond reasonable doubt, are relevantly as follows. Count 1 on the indictment 5The deceased and the accused had been friends for a number of years prior to November 2008. They were both being treated for severe mental illness and were chronic cannabis users. 6The accused regularly smoked cannabis with the deceased at his home. The deceased lived what appears to have been a semi-reclusive life in a Department of Housing apartment in Short Street, Batemans Bay. He was not employed and was medicated for treatment of his mental illness. He also required daily medication for treatment of a blood disease. The deceased was unable to walk any distance because of the effect of that condition upon his legs. 7The accused lived alone in rented premises on acreage off McCardy's Creek Road, Nelligen. He was at that time in a long-term relationship with Krystelle Collins. She regularly spent the night there with the accused and her young daughter. 8Aaron Kirchner lived with his mother in the Batemans Bay area. He was employed by the accused to assist him in his lawn mowing business 9The deceased was reported missing to the Batemans Bay police by a mental health worker on 5 December 2008. Police attended the deceased's premises that afternoon but found the apartment secure and undisturbed. The deceased's wallet, a set of keys to the premises and his medication were located in the kitchen. There was no sign of any struggle or other disturbance having taken place within the premises. Nothing indicated foul play or suggested the intended long-term absence of the deceased. A return visit by the police a week later revealed that nothing had changed. 10On 27 February 2009 the accused was taken into custody on unrelated matters. Police visited the accused on 9 April 2009 at Goulburn Gaol where he was interviewed. He confirmed his association with the deceased but denied any knowledge of or involvement in his disappearance. 11On 27 May 2009 Krystelle Collins provided a statement to the police. She alleged that on the evening of 24 November 2008 the accused told her that earlier that day, he and Mr Kirchner had driven the deceased from his apartment to a bush location near Nelligen, close to where the accused then lived. The accused told Ms Collins that he had shot the deceased twice and killed him. The first shot contained scatter, or shot, and merely rendered the deceased unconscious. The second shot was with a solid round fired to the back of the deceased's head. Ms Collins alleged that the accused asked her to assist him to bury the body of the deceased but she declined. The accused later told her that he and Mr Kirchner buried the deceased in a shallow grave in bushland in the early hours of the following morning. The accused told Ms Collins that a piece of the deceased's clothing was left protruding from the ground. 12Ms Collins also told the police that the accused had confided in her a number of times in the week prior to his disappearance that he intended to kill the deceased. The accused said that he was angry with the deceased because he had repeatedly stolen money from the accused and failed to pay him for cannabis that he supplied. The accused also previously described to Ms Collins how he proposed to kill the deceased. She alleges that he said he was going to take the deceased out into the bush next time they went to check on the cannabis plants and shoot him. 13In due course police discovered the body of the deceased on 23 June 2009. A large-scale search of the Currowan area off McCardy's Creek Road, Nelligen using cadaver dogs located his body in a thickly vegetated and heavily timbered area at a site near a creek bed off Blitz Road. The deceased's boot and dark coloured shirt were seen to be protruding from the soil. The direct cause of death was established following an autopsy to have been a gunshot wound to the back of the head. 14On 30 June 2009 Mr Kirchner participated in an electronically recorded interview in which he denied any knowledge of or involvement in the death of the deceased. However, on 23 April 2010 Mr Kirchner was arrested in Queensland and subsequently participated in another electronically recorded interview. He made admissions that he was present when the deceased was killed. He maintained that the accused killed the deceased but that he had no involvement in the death of the deceased or in burying his body. He assisted police in a re-enactment of what took place at the scene. Mr Kirchner was later charged with the murder of the deceased. He pleaded guilty to murder on the basis that he aided and abetted the accused. Mr Kirchner was sentenced upon the basis that he would give evidence in these proceedings and received a discount for doing so. Further analysis 15It is necessary for present purposes to consider more closely some of the evidence that underpins the Crown case with respect to the first count on the indictment. Ms Collins' evidence 16Ms Collins was asked to recall whether the accused ever spoke to her about the deceased. She gave this evidence: "Q. Did Mr Wilson ever talk to you about any issues he had with Mr Bryan? A. Yes. Q. What did he tell you? A. He would whinge to me about him stealing money out of his wallet, helping himself supposedly to the crops, taking buds for himself. Q. This was Mr Wilson telling you what Mr Bryan was doing? A. What Scott was doing, yes. Q. Can you recall any words that he used on any occasions he spoke to you about these problems he had with Mr Bryan? A. He used to say he wanted to knock him off. Q. Do you recall the month of November 2008? A. Yes. Q. And a period before Mr Bryan went missing, do you recall any conversation in particular you had with Mr Wilson about Mr Bryan? A. Yes. Q. Where did that conversation take place? A. We actually had a couple of conversations. It would have been in his ute at his house, at McCardy's Creek Road. Q. What did Mr Wilson say to you on those occasions about Mr Bryan? A. He'd say, 'Next time I go out to the bush with him I'm going to shoot him'. Q. Did you say anything in response to that? A. Yes, I used to say to him, 'Don't be stupid, just leave him alone, don't hang around him' or, 'If you're going to do anything, just leave him out in the bush to walk home'. Q. That is leave Mr Bryan out in the bush to walk home? A. Yes. Q. Do you recall if Mr Wilson responded to that when you said that to him? A. Well he never really responded to it; he would just listen, take it in. Q. And those conversations that you have just given evidence of, they occurred approximately when? A. A few months prior to November 2008." 17On 24 November 2008, Ms Collins had some difficulty contacting the accused. There is significant and uncontested evidence that she attempted unsuccessfully to speak to him by phone throughout that day. It was not until approximately 6.00pm or thereabouts that she finally contacted him. She was asked about that: "Q. When you spoke to Mr Wilson what did he say? A. I asked him what he had been doing and he said that him and Aaron were out at his place fixing a broken window in his ute. Q. Who was Aaron? A. Aaron was a friend. Q. Was that a person who worked with Joe in the lawn mowing business? A. Yes, he did work with him sometimes, yes. Q. He was an employee? A. Yes. Q. He said he was fixing a window in his car? A. Yes. Q. Did he say where he was at that time? A. At his place at Nelligen. Q. When did you next see Joe after that phone call? A. He came in around about 7, 7.30, to pick me and my daughter up. Q. And he came to your place at 23 Matthew Parade? A. Yes. Q. What vehicle was he in? A. He was in his ute. Q. A blue Nissan ute? A. Yes. Q. How old was your daughter at that stage, 2008? A. 5, 6. Q. Where did you go from your home? A. We drove out to his property at Nelligen." 18The accused drove Ms Collins and her daughter to the property. She was asked about what then happened: "Q. After your daughter went to bed was there any conversation between Joe Wilson and yourself? A. Yes. Q. As best you can recall, using first person terms, can you say what was said and by whom please? A. I asked Joe what was he doing all day, as I was quite annoyed, and Joe said, 'I was with Aaron' after they'd done a couple of lawns. First off he said to me, 'If I tell you something don't go off your head'. He said, 'Sit down and I'll tell you' and I was sitting down. Q. In the lounge room? A. Yes. He was sitting at his desk and he said to me, 'Me and Aaron done some lawns this morning, then we went and got a smoke'. They went halves in $50 worth of marijuana and they went to Scott's place in Short Street to have a smoke. Once they had a smoke they left from there and then he realised that they left some pot there. So he said he went back there to get it. Scott was stoned and Joe and Aaron got cranky because they asked him where was the pot and Scott said, 'I don't know where it is, you must have took it' and he said that him and Aaron got cranky and he said, 'Let's go and check out on a crop'. Q. Who said that? A. Joe. Then he said they got in the car and drove out to Nelligen. He said Scott got out of the car and walked out in front and he said, 'I shot him in the back of the head'. Q. Did he say approximately what time this had happened? A. I asked him a few questions. I said, 'What time?' Because at a certain time I had a really bad feeling in my gut. He said, '5.30pm'. Q. Do you recall if Mr Wilson told you anything more about what happened? A. Well I did ask a few questions because I just wanted him to say to me that he was joking and I asked him, 'Where did you put him?' and he said, 'He's laying up in the bush' and I asked him, 'How many times did you shoot him?' and he said, 'I shot him once in the back of the head and then Aaron was yelling at me to shoot him again' and I said, 'Why?' and he said, 'Because the first bullet just knocked him out, it was a scatter bullet' and he said, 'I shot him with a solid'. Then he said he took off, they took off and ran back to the car. Q. How were you feeling when Joe was telling you this? A. I felt sick and angry. Q. When you say you felt sick? A. I had to go to the toilet and I had a bit of a spew and I it didn't quite hit me straight away. Q. Did he ask you for anything? A. Well he said to me, 'I've got to go bury him. Will you come and help me?' Q. What did you say when he asked you that? A. I said 'no'. Q. How long did that whole conversation take? A. 10, 15 minutes maybe. Q. Did you stay out at Nelligen that night? A. Yes. Q. Why did you do that? A. Well I have no other way of getting home. I wasn't thinking straight, I just stayed there." 19There then followed Ms Collins' description of what occurred next: "Q. Early the following morning did something happen? A. Joe told me that night that, because I wasn't go help him, he needed to pick Aaron up in town, which was at Surf Beach, and go out to where they'd shot him and dig a grave and put him in it and it sort of didn't really hit me until I woke up at 3am in the morning and he was reversing out of the driveway in his ute to go do what he said he was going to do. Q. Did the ute then leave? A. Yes. Q. When was the next time you saw Joe after the ute took off? A. He arrived back home about 6, 7am. Q. Did he say anything when he arrived back? A. He wasn't feeling well. He was back and forwards to the toilet. Q. What was he doing there, do you know? A. Well I think he had diarrhoea. Q. Did he say what had happened? A. Well, I said to him, 'What have you been doing?' He said, 'I went and picked Aaron up. I went out. We started digging a hole and Aaron had to finish it because he was spewing'. Joe said he was spewing because it smelt. And he said, 'Aaron had to put him in a hole and cover him up'. Q. Did you ask any questions or say anything to Mr Wilson when he told you this? A. I asked him, how far down the road he is and he said, 'He's down there far enough.' I said, 'How far off the road is he?' And he said, 'He's off far enough.' And I said, 'Did you bury him properly?' And he said, 'No, you could still see some clothing'. Q. How were you feeling when he was telling you this? A. Angry and upset. Q. How was Joe, what did he appear like from the time he was telling you this? A. He was fine. He was just pale. Q. Following that conversation that would have been in the early hours of 25 November? A. Yes." 20Finally in this context Ms Collins gave the following evidence: "Q. Ms Collins, at any stage did you ask Mr Wilson why he had shot Scott? A. Yes. Q. What did he say? A. He said because he was sick of him stealing and lying to him. Q. Him stealing what? A. Money and marijuana. Q. Did he make any reference as to whereabouts Scott's body was? A. He said it was the road off McCardy's Creek Road, up that road. Q. Did you have some knowledge of that area from the times you had been staying out at Mr Wilson's property? Did you have some idea of where that was? A. Yes, I knew what road he was referring to." 21Following these events, Ms Collins continued, as she had for some time beforehand, to spend time living at the accused's property at Nelligen. However, in February 2009 Ms Collins moved back permanently to live in premises in Batehaven. As appears elsewhere in these reasons, the accused was taken into custody on unrelated matters on 27 February 2009. Mr Kirchner's evidence 22Aaron Kirchner gave evidence by video link from Goulburn Gaol. Schmidt J sentenced him on 9 December 2011 to a term of imprisonment, he having previously pleaded guilty to the murder of the deceased on the first day of his trial on 19 October 2011. He received a discount of 45 percent for the combined effect of his plea and his promise to give evidence for the Crown in these proceedings. He was sentenced to a non-parole term of 6 years, which is due to expire on 22 April 2016: see R v Kirchner [2011] NSWSC 1516. 23It is necessary in assessing Mr Kirchner's evidence that I have regard to the fact that he is to be treated as a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. He is a witness who, in the particular circumstances of this case, is liable to lose the benefit of the reduction in his sentence to which I have referred if he failed to give evidence that he undertook to give and upon which undertaking Schmidt J relied when sentencing him and in formulating the discount concerned. I have notionally directed myself that Mr Kirchner's evidence may be unreliable for these reasons and that I should have regard to that fact in considering the manner in which I should take account of his evidence and the weight that I should give it. 24Mr Kirchner first met the accused in about 2006. In approximately March 2008 he commenced to work for him in his lawn mowing business in and around the Batemans Bay area. He said that at that time both he and the accused were smoking cannabis regularly. He had accompanied the accused in September 2008 when the accused went to Mogo to purchase a .22 rifle and a 410 shotgun from John Weston. 25Mr Kirchner had met the deceased prior to 24 November 2008 but said that he did not know him. On that day he attended the deceased's premises with the accused where they all smoked cannabis. The accused and Mr Kirchner then left to mow some lawns but they later returned. Mr Kirchner gave the following evidence: "Q. After you mowed those lawns what did you do? A. Joe said something about hitting on some dope plants. We went back to Scott Bryan's place, picked him up and went out into the bush and that was where he got shot." 26Mr Kirchner said that the accused had been ranting about the deceased that day but that he did not pay much attention to what he was saying. He said that they drove from the deceased's house out to the accused's property where he dropped them off some distance from his house. The accused then drove to the house without them but returned about ten minutes later. He then gave the following evidence: "Q. When he came back what happened then? A. We got in the ute and he took us out to at the time it was an unmarked road a bit further up from his place and stopped near a bridge that was falling over or a collapsing bridge and, yeah, told us that up the creek some way he had a crop growing and just follow the creek bed up a bit further. Q. What did you do when you got out of the vehicle, where did you go? A. Stood around the ute for a moment, had a cigarette and waited for those two to sort themselves out and Joey came out with a shotgun and he said it was up that way. Q. Where did the shotgun come from? A. I believe it was behind the back seat of the ute." 27They then set off walking. He described what happened in the following evidence: "Q. Were you walking side by side or one ahead of the other, what was the order of your walking? A. Scott was in front followed by Joe, I was behind Joe. Q. Approximately how far did you walk along this creek? A. 50, 60 metres maybe. Q. You said Joe had a shotgun, can you describe it, what style it was? A. Fairly small. Had cocking levers on it, I believe they are. Old. It wasn't particularly well maintained. Q. You gave evidence earlier of being at Mogo on an occasion when Weston was there? A. Yes. Q. You gave evidence that after that you saw two guns, one was a shotgun? A. Yes. Q. What's your belief as to what gun was being held by Joe Wilson on this occasion after you got out of the ute? A. I believe it was the same shotgun. Q. You just explain the next thing. You said you were walking along in the bush, what's the next thing you recall happening? A. I recall the shotgun going off. Scott's hat flying off and falling forward and I turned and bolted. Q. As you bolted which way did you bolt? A. Back towards the ute. Q. Did you hear anything when you turned around and bolted? A. Yeah, I heard a second shot after the after the first one. It would have been 20 metres away from me, maybe. Q. Did you get back to the ute? A. Yes. Q. What did you do when you got to the ute? A. I looked for Wilson's keys. Q. Were the keys in the ute? A. No. Q. How were you feeling at that stage? A. Horrified." 28The accused returned shortly after that and put the shotgun behind the driver's seat in the ute. He said, "Let's go" and they drove off along Blitz Road. After a short while the accused stopped. Mr Kirchner said what happened: "Q. Before you got to McCardy's Creek Road back to the intersection of that road, did the ute stop at any stage? A. Yes. Q. What happened when the ute stopped? A. Joe took something, around about a metre long, give or take, wrapped in a black plastic bag and dropped behind some fallen trees. Q. Do you know what was in that bag? A. No. I presumed it was a shotgun. Q. Where did you go from that point? A. Joe took me straight home." 29Mr Kirchner then gave the following evidence about what happened the next day: "Q. What's the next occasion you saw Mr Wilson? A. The next morning. Q. Approximately what time would that have been? A. Around about 5.30. Q. Where did you see him? A. At home. Q. What happened when he came to your home about that time? A. He woke me up. I went down, I went downstairs. Got out of bed. I went out and, yeah, he said, 'Time to bury him'. We got in his ute and went back out there. Q. When you got to the location where the body was, what did you do? A. We dug a hole, approximately about 30 centimetres deep. Joe at that point said, 'It's around about enough'. And I grabbed hold his mid section and Joe grabbed hold of his shoulders and we rolled him in. Q. What position was he in when you put him in the grave? A. Face up. Q. What was Joe doing at the time that you were doing this burial? A. He was digging for part of it but some of the time he was throwing up, I believe. Q. Whilst he's been put in the hole what happened with the rest of the burial procedure? A. We covered him over with dirt and some stones and Joe put part of a reed bush on top of him. Q. After the burial what did you and Joe then do? A. Joe took me home. I didn't see him again for the rest of that day. Q. Was anything said when he dropped you at home? A. He said something along the lines, 'Let's not talk about this ever again'." 30The police interviewed Mr Kirchner on 30 June 2009. He denied any knowledge of what occurred. He subsequently left the Batemans Bay area and went to Queensland where he was again interviewed by the police on 26 April 2010. On that occasion he admitted that he was present when the accused was shot but denied that he took part in any way. On 28 April 2010 Mr Kirchner took part in a walk through at the scene of the shooting. He was interviewed once again on 5 May 2011 at which time he admitted taking part in the burial of the deceased. Intercepted conversation between Ms Collins and the accused - 24 October 2009 31Ms Collins visited the accused at Goulburn Gaol on 24 October 2010. She spoke to him on that occasion for approximately one hour. The conversation was secretly recorded without the accused's knowledge. However, Ms Collins was aware in advance that this was to occur. 32Police had assisted Ms Collins before this recorded meeting took place. Some of the questions that she directed at the accused have a flavour of that about them. Notwithstanding this, the closest that the accused came to referring to his involvement in the killing of the deceased is to be found in the following extract from the conversation: "Collins: 'What if Aaron's told 'em fucking different shit?' Accused: 'Well, it's only his word.' Collins: 'I don't want somebody coming...' Accused: 'It's only his word versus my word.' Collins: 'I don't want somebody coming and looking for another gun. That's what they're saying that you fucking killed him or that Aaron killed him. They have fucking enough. They're... figuring things out, Joe.' Accused: 'They won't be able to though. Trust me, Krystelle. At worst, at worst, I'll get held in here for eighteen months, and then I'll be released. That's the worst that could happen.' Collins: 'You're just going to have to lie and, if you get fucking caught out for it. You're going to have to say that you didn't kill Scott, Aaron did.' Accused: 'I know nothing.' Collins: 'Oh, Joey, for fucks sake.' Accused: 'Yeah.' Collins: 'We can't talk about it over the phone.' Accused: 'I know, I know. And I don't like talking about it here either'." 33It is unnecessary to consider any other portions of the recorded conversation. Intercepted telephone calls 34A series of recorded telephone conversations between the accused and Ms Collins were also tendered in evidence. The accused placed these calls to Ms Collins from Goulburn Gaol. Both parties to the conversation were aware that they might be recorded. Nothing of any particular significance was to be found in the transcripts of these conversations. Consideration: count 1 35The crime of murder will have been committed by the accused if the Crown establishes beyond reasonable doubt that it was the deliberate act of the accused that caused the death of the deceased, that the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm upon him or with reckless indifference to human life, and that the act causing death was not carried out in self-defence. 36There is in this case direct and uncontradicted observational evidence that the deceased was shot by the accused on 24 November 2008, and that he died as a result of his injuries. The evidence of Mr Kirchner paints a clear and compelling picture of what occurred. Although he did not see the deceased shot the second time, he saw the first shot and returned the following day to bury the body with the accused. The accused made statements to Mr Kirchner that confirm that he shot the deceased twice and the overwhelming inference is that the second shot that Mr Kirchner heard on his flight back to the accused's ute was a shot by the accused into the back of the skull of the deceased. It is not apparent on the evidence whether the deceased was then still alive. It is clear, however, that he was killed by at least one of the shots fired by the accused from the shotgun that he placed in the vehicle when he returned to it. 37There was much evidence in this case directed to the type of weapon that was used. The accused had purchased two firearms from Mr Weston as earlier described. However, neither of these was the gun that killed the deceased. Forensic evidence before me indicates that the deceased was killed by shots fired from a 20-gauge shotgun. The remnants of the cartridge found in the skull of the deceased at the location where he was buried was of that calibre. The weapon in question has never been recovered. Whether it was the item that the accused placed in the bush wrapped in black plastic following the killing cannot be established. 38The evidence of Ms Collins also intersects with and complements the evidence of Mr Kirchner. Ms Collins said that the accused left their bed in the early hours of the morning of 25 November 2008. He was reported by Mr Kirchner to be knocking on Mr Kirchner's door on the coast shortly thereafter. Mr Kirchner clearly and understandably recalled that event. In like fashion, he recalled returning to the scene of the killing immediately thereafter to bury the deceased. He described what occurred in ways and by reference to details that Ms Collins also recalled but which she could not have known unless they had been related to her by the accused. There has never been any suggestion that she spoke to Mr Kirchner about what occurred. 39I am satisfied upon the limited evidence available that the deceased died as the result of the injuries he sustained when shot by the accused, and that the shooting was the deliberate act of the accused. I am equally satisfied that the acts causing the death of the deceased were committed with an intention to kill him. I am accordingly satisfied beyond reasonable doubt upon the limited evidence available that the accused committed the offence of the murder of the deceased. Count 2 on the indictment 40The accused wrote three letters to his uncle Gerard Wilson. Mr Wilson lives on a farm that he runs in the Murray Valley area of Northern Victoria. The accused is his brother's son. 41The letters were in the handwriting of the accused and are dated 29 January, 7 February and 15 March 2010. The accused was in custody when the letters were written. One of the letters enclosed a photograph of Krystelle Collins. 42The first letter refers to Ms Collins as "the main witness for the police" and continues in the following terms: "I want the fucking dog dead as before 22nd March. If this can be arranged write back and say the dog had pups or you sold your tractor." 43The letter proceeds to describe Ms Collins and to supply her date of birth and phone number. 44The letter dated 7 February 2010 commences as follows: "Remember what I asked in the letter about the person in the photo, if you can send me a letter and say the old dog had pups that means yes. If you can't then if you lend me $20,000 I can get a bloke from the Middle East to fly to Aust and do the job...My mate said he can have the job done in 1 or 2 weeks. We just don't know her address? Can you find out her address and write back with it if you can find out it. He also said if I can get $10,000 it can be done and I pay the other $10,000 in 2011, also pay half before job and half when it has been done. The money has to be put into West Union [sic] and sent to Middle East and I need the receipt sent to me in here and then it will be done, I don't know how to do this but you should." 45The third letter contains nothing that informs the second count on the indictment. It remains relevant only as part of the sequence containing the earlier letters. Count 3 on the indictment 46Between 6 April 2009 and 6 February 2010 the accused wrote a series of letters to Krystelle Collins. One of the letters is undated, and is addressed "To crown witness Krystelle", and includes the following material: "...you can't keep secrets for long, I know where you live in Feb you'll get a knock on the door and I'd stand back from the door and also give back my wallet. Also I didn't pull the trigger on Scott it was Aaron, I could be out in a short period of time thanks and giving up on me you've lost the best thing you'll ever have, you are a weak cunt... You are the worst girl I have ever been with you are bad dog. The bloke that you and your dad knifed in the neck and killed and dumped the body on the railway lines in Goulburn, his mate is in my yard in jail and he said he's going to get you and kill you, he gets out soon!!" 47The letter dated 6 February 2010 concludes with the following material: "Don't give this letter to the cops, or Peter White will try to kill you, then who will look after [your daughter], he's a bad murderer, and lier [sic]. I am sick of writing so write back ASAP and tell me if you are going to go to court to give evidence, if you give evidence I'll hate you forever." 48Ms Collins also gave the following evidence relating to her knowledge of what occurred and the position in which she found herself: "Q. How did your relationship go from that time that he told you that he had shot Mr Bryan, what was your relationship like from that point? A. It was different it went downhill from there. Q. Did you remain out staying out at Nelligen? A. I did stay out there on and off yes. Q. Why did you do that? A. Well two reasons why because I was scared for my safety and my daughter's safety and my family's safety if I left him and because I loved him. Q. Why were you scared for your safety, your daughter's safety and your family's safety? A. Because he threatened me. Q. What did he say? A. He said to me, 'If I open my mouth I would be dead' and in seven days he said, 'If I can't get you I'll go for your family'." Consideration: counts 2 and 3 - defence of mental illness 49It is uncontroversial that every man and woman is presumed to be sane and to possess a sufficient degree of reason to be responsible for his or her crimes until the contrary is proven. In order to establish a defence on the ground of mental illness it must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or if he did know it, that he did not know that what he was doing was wrong: R v M'Naghten (1843) 8 ER 718. 50In cases involving a jury the jury would not be required to consider the defence of mental illness until it were satisfied that the offence had been proved beyond reasonable doubt: R v Stiles (1990) 50 A Crim R 13. I also observe that in considering whether an accused person committed the offence(s) charged, a jury would be instructed to ignore the question of mental illness when determining whether the accused had the intent charged, relying upon the presumption of sanity. In this way they may acquit on the defence of mental illness if they find that the accused did not have the necessary intention as a result of the defect of reason. If there were evidence of mental illness, a jury would not consider the question of intention or voluntariness separate and distinct from the issue of mental illness. 51A "disease of the mind" is any disease capable of affecting the mind, whether it has a mental or physical origin and whether or not the defect of reason is temporary or permanent: R v Kemp [1957] 1 QB 399. Whether the condition amounts to a disease of the mind is a question of law: R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 60. A "defect of reason" is the inability of the accused to think rationally: R v Porter [1933] HCA 1; (1936) 55 CLR 182 at 189-190; Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 367. 52A person does not know the nature and quality of his (or her) act if he does not know the physical nature of what he is doing or the implications of it. A person does not know what he was doing was wrong when he does not know that it was wrong according to ordinary standards of right or wrong adopted by reasonable persons (see Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 367), or where the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: Sodeman v The King (supra) at 215; R v Pangallo (1989) 51 SASR 254. 53Medical evidence is not essential to prove insanity: Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171. The tribunal of fact cannot reject unanimous medical evidence unless there is evidence that can cast doubt upon it, but such evidence may be found in the behaviour of the accused. The tribunal of fact may decide between competing medical evidence. Medical witnesses may give evidence of their opinion as to whether the accused could appreciate the nature and quality of his acts or, if he could, whether he knew it was wrong: Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584. 54The accused was born in 1976 and was therefore 31 years of age on 24 November 2008 when the original events that precipitated the present charges occurred. The psychiatric medical history of the accused is long and significant. Its aetiology predates these events and must be considered in some detail. The medical opinions expressed concerning the accused and his mental condition are also unanimous. They are referred to in what follows. Professor Greenberg 55Professor Greenberg initially examined the accused at the Silverwater Remand and Reception Centre on 5 August 2011. He took an extensive history from the accused, including in relation to the subject charges. The accused reported seeing a psychologist at the direction of a court as long ago as 1992. He was not diagnosed with any illness. In 1999 he was admitted to Chisholm Ross Psychiatric Unit at Goulburn Hospital for eleven days. He was given antipsychotic injections of Chlorpromazine at that time. He was discharged with a regime of medication that he disregarded. The accused had approximately six subsequent admissions to Goulburn Hospital for drug-induced psychosis. 56The accused has a documented history of schizophrenia with a previous history of fixed grandiose and persecutory delusions. He has an indifferent history of compliance with antipsychotic medication regimes. Apart from admissions to Goulburn Hospital for mental illness, he has also been admitted for the same reason to Batemans Bay Hospital. 57The accused told Professor Greenberg that he began to smoke cannabis at the age of three. He claimed to have been regularly using the drug since he was 28 years old. He also admitted to using amphetamines but his reports about this were bizarre and were unlikely to have been completely accurate. 58The accused attended St Joseph's School in Batemans Bay and St Bernard's School in Bellingen. He then attended St Patrick's High School in Goulburn until part way through Year 9 and then Batemans Bay High School. He left school to begin work. He denied learning difficulties. He also denied any conduct or behavioural problems during adolescence. He had one previous contact with the Children's Court in 1994. 59The accused said that a teacher sexually abused him for a two-year period between the ages of six and seven. He claimed to have reported this abuse "on seven hundred occasions" to the police. He also said that a magistrate tried to molest him when he was six years old whilst he was in a helicopter between Batemans Bay and Jamberoo. He claimed that his arms were chopped off and subsequently sewn back on. 60Professor Greenberg expressed the opinion that the accused was then unfit to plead or to stand trial. He came to a different conclusion following a further examination of the accused in January 2012. He maintained the view that the accused was fit to plead and to stand trial after his examination of the accused in April 2013. However, following a psychiatric assessment of the accused in August 2013, Professor Greenberg concluded that the accused was then no longer fit to plead or to stand trial. In forming that view, Professor Greenberg expressed the following opinion: "I am of the opinion that Mr Wilson would have difficulty appreciating the substantial effect of evidence given in Court given his acute paranoid psychotic symptoms including bizarre somatic and paranoid delusional beliefs. Also at times his thoughts were disjointed and his various delusional beliefs appear to be intertwined with his understanding of his cognitive reality. He claimed that his solicitor, Jennifer Powell, and he went to TAFE together; they had done a course in dairy farming. He then stated that if someone wanted to clean up your house and if you had never seen them before, would you let them in? He ruminated about having money under the mattress and Blue Tac on the lock. He explained his distress about the legal system. When questioned about whether he would receive a fair trial, he stated that he had reservations about the impartiality of the Judge. He stated that he would demand "blood tests and photos" of all the jury members before he would be comfortable that they were going to give him a fair trial. Mr Wilson also questioned the role of his solicitor. He stated that it would not matter even if he selected his own lawyer because if the jury was not up to scratch it doesn't matter. Mr Wilson's paranoid belief system appeared to be impinging on his acceptance that he could receive a fair trial. He appears to believe he cannot be represented by his legal representation and the impartiality of the Judge and/or jury is in question." 61It became clear from Professor Greenberg's reports that the mental condition of the accused at any particular time, and from time to time, was closely related to the extent to which he complied with prescribed regimes of antipsychotic medication. The accused had a poor record of regular maintenance of these regimes. Assessments of his fitness to plead and to stand trial were directly related to the accused's compliance or non-compliance with recommendations that he take antipsychotic medication as prescribed. Dr Olav Nielssen 62Dr Nielssen examined the accused on several occasions between June 2011 and July 2013. In August 2013 Dr Nielssen expressed the opinion that the accused was suffering from an acute exacerbation of chronic schizophrenia and substance abuse disorder (in remission). He proffered the following opinion: "Mr Wilson is currently affected by an exacerbation of his chronic schizophrenic illness, that appears to be due to ceasing treatment with antipsychotic medication, as I understand he was recently found to be fit and was discharged from the mental health area of the prison back to Goulburn Correctional Centre. He no longer has insight regarding the nature of his illness, the symptoms of his illness, or his need for treatment. Mr Wilson is again unfit for trial. He has probably retained an understanding of the charges some capacity to respond to those charges, and a general understanding of the general nature of a trial and the procedure followed in an adversarial trial. However, his interpretation of developments in the case is likely to be affected by evolving persecutory delusional beliefs, disorganised thinking and grossly impaired judgment that would affect his capacity to follow proceedings or provide rational instructions. Mr Wilson has a condition that has been shown to respond to treatment with moderate doses of antipsychotic medication. Based on his previous response to treatment with moderate doses of antipsychotic medication, I believe he will again respond to treatment with antipsychotic medication and become fit for trial after several months of treatment." Other evidence 63The accused's uncle Gerard Wilson gave evidence before me and was asked about the letters he received from the accused: "Q. You've seen that the material you have been provided with are copies of the letters that you were forwarded from Goulburn Gaol? A. They were the same letters, yes. Q. And that they were letters from your nephew Joseph Wilson? A. Yes, that is correct. Q. Did you know at the time you received the letters that he was in custody? A. Yes, I did. Q. Did one of those letters include a photograph? A. Yes, I think it was the second one. One of them, yes. Q. Who was the photograph of? A. Of his girlfriend. Q. Had you ever met her? A. I had never met her but I saw her once or twice. Q. In those letters a number of requests were made of you by your nephew? A. Yes. Q. Essentially the request was for the person Krystelle Collins to be killed? A. Yes yeah, yeah. Q. Your nephew wanted you to arrange that? A. Well he wanted some money from me to arrange it, I think. Q. Did you respond to any of his requests? A. No, none whatsoever. Q. You had no contact with him either through the mail or over the phone whilst he was at the gaol? A. No, none at all. Q. Did you do any of the things that he asked you to do in those letters? A. No. Q. Have you had any contact with your nephew Joseph Wilson other than these letters? A. No." 64Mr Wilson was subsequently cross-examined about the letters. He gave this evidence: "Q. Did any of that make sense? A. None of it made any sense at all to me. Q. There's talk about you buying Mogo Station to run 800 cows and various other things; did that make any sense at all? A. I knew where Mogo Station was because I think Joe might have worked there at one stage but apart from that, I don't know, it made no sense at all. Q. Or that your gran had $90 million from bank robberies? A. No. Yeah, no, it made no sense at all. Q. In terms of what he was seeking from you, did you just stick it in a drawer and forget about it, did you? A. Well, yes. Q. Did you discuss with anybody some of the more unusual statements in the letter? A. I never discussed it with anyone, only my wife. Q. Such as saying that you said that Dad owned Carlton United Brewery? A. We never talked about that, it was hardly worth talking about. Q. In terms of their contents, they were just completely disconnected from reality? A. I think so, yes. Q. So you made no response and just left them as they were? A. Yeah. ... Q. Did you speak to anyone else in terms of your extended family about the contents of these letters or the fact that he was sending them to you? A. No." 65Professor Greenberg was the only medical professional to give oral evidence concerning the accused's mental condition. This was important because counts 2 and 3 on the indictment appeared to me squarely to raise the mental state of the accused at the time when he is alleged to have performed the acts that found these charges. Central to these charges are the letters written to his uncle and to Ms Collins. Professor Greenberg was asked about these letters with a view to determining or assessing the likelihood or otherwise that the accused was relevantly mentally ill at the time they were written. His evidence about this was as follows: "HIS HONOUR: ...I would be interested to know whether it was Professor Greenberg's view that every one of those letters was, or if not which ones among them were, written by the accused whilst in a delusional state at the time that he is referred to. AINSWORTH Q. Can you differentiate between the letters in those terms, can you say that one is and one is not, for example, written at a time when his delusional mindset is prevailing? A. I think the shorter letters, there's less delusional or less disjointedness. The longer letters he tires and becomes more disorganised and the delusions are finishing more on his thinking. For example, the letter to 'big Joe' dated 29 January 2010, which is 13 pages, he clearly has become more delusional as he continues to write that letter. The short letters to Krystelle, the undated letter has less delusional thinking and likewise with the letter dated 6 February 2010. But underlying all of these letters is a man with a condition which is treatment resistant. The shorter letter dated 15 March 2010, which is only one page, he clearly has some understanding of the legal process and some understanding of the delusions around fitness. It's just an example of his delusional thinking, it becomes evident as he tires, as his thoughts become more disorganised with the writing. It's less evident with the shorter letters and more evident with the longer letters. Q. But the underlying condition never changes? A. The underlying condition never changes but the capsule around the delusional thinking is less prominent with the shorter letters, less obvious with the shorter letters. Q. They break out of the capsule the longer he attempts to commit to writing things on paper; the longer it goes on, the more the delusional mindset seeps out of the capsule? A. The longer he tries to focus his cognition and his thinking on to certain matters, the more the capsule breaks down. Q. So something that he has to think about or organise or describe in a lengthy way is likely to end up with the capsule breaking down as he applies the mental effort to that task? A. That's correct. Q. Certainly the longer letters to big Joe, it's quite evident that he is latching into that grandiose and delusional mindset that is very much a part of his schizophrenia? A. Yes. HIS HONOUR Q. Is this a condition that renders the accused liable to have periods of lucidity and periods of psychotic irrationality or is he, subject to medication of course, always likely to have a period when he's unaffected by his psychosis? A. I think, your Honour, from approximately the year 2010, 2009, Mr Wilson's mental state is such that he never completely becomes rational or free of delusional beliefs and psychotic symptoms. I think in the last two years or three years his mental illness, at least the severity, is entering the spectrum where he is unable to be treated unable to restore fitness to stand trial because of the severity of the illness. So although when he writes letters he has lucid periods where he can make seemingly coherent, rational decisions about his court case and about his legal matters, the underlying illness is still present throughout. And it hasn't always been like that, there obviously have been times when he was living in the community and he was functioning quite well. He was able to leave hospital, he responded to treatment, he conducted himself in the community. There's been a marked change in his mental state from the year 2009, 2010 until now and that seems to be fairly fixed now; it's not responding to any psychiatric treatment and hasn't improved. Q. I'm not so much for present purposes concerned about the immediate current state so much as the state that may have existed at the time that he wrote any one or some of the letters. You have used the expression in referring to the matters that he wrote in those letters as being, on occasions, your quote, 'Seemingly coherent'. Do I, or do we, understand from that we should be cautious about treating matters that appear coherent, having regard to the condition from which he was suffering? A. Yes, I think one has to be cautious at this point because his mental state now seems to be fixed, treatment resistant and clearly influenced, for the most, by his delusional beliefs." Disposition 66Regardless of who raises the defence, the onus lies upon the accused to prove the requisite mental illness on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. In this case the defence was raised by the accused. 67In the particular circumstances of this case I am satisfied on the balance of probabilities, on the limited evidence available, that the accused was suffering from a disease of the mind and that he was labouring under such a defect of reason as a consequence, that he knew neither the nature and quality of his actions nor that what he was doing was wrong at the time that he committed the acts constituting the second and third counts on the indictment. I consider that the evidence in this respect is highly persuasive. I have formed that view for the following reasons. 68First, the reaction by the accused's uncle to the letters sent to him was one of apparent and sanguine indifference. He told his wife about the letters but no one else. He did not report them to the police. He effectively treated them as emanating from an unreliable and labile source. He ignored them as not deserving of further consideration. In the events that occurred, it would seem that his wife took a similar view. This is all the more significant in my view having regard to the fact that three letters were written. Although hardly determinative of the issue in a technical sense, Mr Wilson's reaction to the letters was consistent with a common sense lay view or reaction that they were written by a person with a serious mental condition. 69Secondly, the fact that the letters were sent at all from gaol in the terms in which they were written bespeaks not merely a fundamental absence of any sense of self-preservation on the part of the accused but what must have in truth been a wholly hysterical and fantastic perception of reality. The accused's uncle is a farmer and grazier in northern Victoria. He had no access to the criminal underworld or to aspiring Middle Eastern assassins or contract killers. The likelihood that he either could or would engage in the activities described by the accused was completely absent. Even if the letters were arguably written with some still undisclosed purpose, the letters could not have been written by a person who was not at least suffering from the effects of a serious mental condition. 70Thirdly, the content of the letters was inconsistent with sanity. There are delusional and grandiose references to matters clearly demonstrating that their author was likely to be suffering from some form of serious mental disorder when they were written. At one point the accused referred to "gran" telling him that "she had $90 million from the bank robberies." The letters contain what amounts to a barely coherent collection of unrelated topics thrust together in no particular sequence. The letters are superficially intelligible but realistically nonsensical. This is what I take Professor Greenberg to have had in contemplation when he described the letters as "seemingly coherent." 71Finally, the expert medical opinion from Professor Greenberg is that they were written by the accused when his mental state was fixed, treatment resistant and clearly influenced, for the most part, by his delusional beliefs. 72In my opinion the letters written to Ms Collins that underpin the third count on the indictment were also written by the accused when afflicted with this same condition. The letters were all written between April 2009 and February 2010 and so fall within the post-2008 period identified by Professor Greenberg. That was the period during which Professor Greenberg said that the accused's mental state was such that he never completely became rational or free of delusional beliefs or psychotic symptoms. 73It follows in my opinion that, having regard to the expert opinions and other evidence touching upon the issue, the accused has established on the balance of probabilities that a defence of mental illness has been made out. Consequential matters 74As a result of my finding, on the limited evidence available, that the accused committed the offence of murder, it becomes necessary to have regard to certain further provisions of the Act. Sections 23 and 24 of the Act provide relevantly as follows: "23 Procedure after completion of special hearing (1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as 'a limiting term' , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) ... (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court: (a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or ... 24 Consequences of nomination of limiting term (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2)..." 75In my opinion, if this special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which I have found the accused to have committed, I would have imposed a sentence of imprisonment. I propose therefore to nominate a limiting term in respect of the offence of murder, being the best estimate of the sentence I would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against the accused as a person who was fit to be tried for that offence and the accused had been found guilty of that offence. 76In the light of s 23(1)(b) of the Act, I am obliged, when determining a limiting term, to adopt and to apply all of the statutory and common law principles of sentencing that apply to a person convicted of the offence in question: R v AN [2005] NSWCCA 239 at [13]. A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85 at [30]. 77In R v Mailes [2004] NSWCCA 394; (2004) 62 NSWLR 181, Dunford J said at [32] that the purpose of a limiting term: "...is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial..." 78The statutory standard non-parole period scheme also does not apply to the imposition of a limiting term: s 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999. The "sentence" referred to in s 23 of the Act is therefore to be taken as a reference to the total sentence and not the non-parole period since there is no power to fix a non-parole period less than the total term: Mailes at [29]. Relevance of medical condition to length of limiting term 79I have earlier considered the mental condition of the accused in some detail. Impaired mental functioning, whether transitory or permanent, is relevant to sentencing: see Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [14]. The evidence relating to the accused's mental condition both at the time that he committed the offence and now is therefore relevant to the current sentencing exercise and must be considered. Even though the accused does not have a defence to the charge of murder arising from his mental illness, that does not mean that his underlying psychotic condition of schizophrenia and his substance abuse disorder are not relevant to the determination of the appropriate sentence: R v Bell (1985) 2 NSWLR 466 at 485. 80However, even though the accused's mental condition is a factor to be taken into account, it does not operate to displace other matters, including the objective seriousness of the offence. In Bhuiyan v R [2009] NSWCCA 221 at [30], McClellan CJ at CL said: "[30] In R v Engert (1995) 84 A Crim R 67 Gleeson CJ recognised the difficulties faced by a court when sentencing persons with mental disorders. Those difficulties are compounded when a person is found not fit to be tried but, applying conventional principles a court is required to determine a limiting term. It is necessary to keep steadfastly in mind that although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired." 81By 24 November 2008 the accused had a demonstrated and recorded history of psychosis requiring admission from time to time to a mental treatment facility and the prescription of anti-psychotic medication. Although that condition was to some extent amenable or responsive to such medication, the accused also had a history of disregarding medical advice to maintain a consistent or regular attitude to it. It is not therefore possible in such circumstances confidently to assume that this long-standing and deteriorating mental illness was not a factor that contributed in some way to the accused's offending behaviour or that it is not relevant to an assessment of his culpability. Other factors relevant to sentencing 82The maximum penalty for murder is life imprisonment. The accused has been in custody in circumstances relevant to the offence of murder since 27 February 2010. 83It was submitted by the Crown that this case was in the worst category of murder. It was planned. The accused lured the deceased to a secluded location forearmed with a shotgun with the intention of killing him and disposing of his body in a way that was designed to avoid detection. The deceased had no reason to be with the accused in that location apart from the accused's criminal seduction that drew him there. 84The offence was committed with the use of a weapon. 85The Crown also contended that the accused occupied a position of trust in relation to the deceased. This was said to arise from the deceased's mental condition, his impoverished station in life and the apparent respect that he harboured for the accused. As accurate as these contentions may be, they do not to my mind operate to constitute the aggravating feature for which the Crown contends. 86The Crown also contended that the presence of Mr Kirchner operated to mean that the offence was committed in company. I reject that submission. It is an error to take account of the fact that an offence was arguably committed in company when that fact added no significant culpability to the offence: see Gore and Hunter v R [2010] NSWCCA 330 at [30], [101]-[102]. Mr Kirchner's presence in the circumstances of this case was wholly irrelevant to the offence. Nothing that he did or said contributed in any way to the murder of the deceased. Mr Kirchner's assistance to bury the deceased's body is beside the point. 87I have earlier found that the accused killed the deceased with the intention of doing so. That factor adds to the seriousness of the offence. 88I do not consider that special deterrence is something that should operate to inform the proper sentence in this case. The mental condition of the accused, from which it appears he is likely to suffer without respite for the rest of his life, renders special deterrence meaningless. The extent to which general deterrence should operate upon that sentence is less clear. However, the senseless killing of any person should be condemned out of hand. The particular killing in this case was so gratuitous and unwarranted that any sentence imposed in the ordinary course following a trial ought necessarily to operate as a public disavowal of such cruel behaviour. 89By reason of the accused's current chronic severe mental condition, issues of remorse, contrition and rehabilitation are wholly irrelevant and I have disregarded them in forming my view concerning the proper length of any limiting term that I should impose. 90In the light of all of these matters I consider that this offence of murder is to be assessed as falling somewhere slightly above the middle range of seriousness for offences of this type. Conclusions and orders 91In these circumstances I consider that I should make the following orders: 1. I find upon the limited evidence available that the accused Joseph Rowan Wilson committed the offence of the murder of Scott Daniel Bryan on 24 November 2008. 2. I indicate that if the special hearing involving the accused had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment. 3. I nominate as the limiting term in respect of the offence of murder a period of 18 years commencing on 27 February 2010. 4. I find that the accused Joseph Rowan Wilson is not guilty of soliciting Gerard Michael Wilson between 29 January 2010 and 7 February 2010 to murder Krystelle Lee Collins by reason of mental illness. 5. I find that the accused Joseph Rowan Wilson is not guilty of committing an act between 15 December 2009 and 6 February 2010 intended to cause Krystelle Lee Collins to give false evidence by reason of mental illness. 6. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that Joseph Rowan Wilson be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. 7. Pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990, I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of these orders. Further matters 92It is important that the tragic circumstances of this case do not pass without mention of the understandable grief that attends the loss of a loved one. The deceased was a man whose own life had unfortunately been affected by the disabling consequences of mental illness. His death was a cruel and unforeseen consequence of events that could not realistically have been prevented or anticipated. I extend my sympathy to those of his relatives and friends who are left without him. 93It is also important to understand and appreciate that the system of criminal justice in this State does not provide for findings of guilt or punishment for crimes unless the accused person has been found to have committed the charged offence to the requisite standard of proof according to law. There can be a tendency, understandable in the extreme, for some of us to feel the need for vengeance, for punishment and for retribution when the acts of another have led to the death of an innocent person. Sometimes a defence, such as a defence of mental illness as in this case, will appear to many as some kind of inappropriate and artificial legal construct that permits the guilty to go free and victims to be left without answers. It is not. It is necessary at these times to understand that the particular events that occurred in this case are much like a catastrophic and unavoidable accident. The only significant difference in the end result is that it will usually be easier to come to terms with a death resulting from a cruel freak of nature, like a landslide or a bushfire, than those cases where another person has committed the physical acts that have caused the death. Unfortunately for the deceased in this case he was, through no fault of his own, in the wrong place at the wrong time, just as much as if he had perished in a natural disaster. 94I also extend my sympathies and concern to the relatives and friends of Mr Wilson. His long and troublesome mental affliction is a continuing and unfortunate fact of his life and of theirs. Hopefully some relief from its burden will eventually emerge for him and for them. ********** 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 2013