Supreme Court New South Wales Medium Neutral Citation: R v Wotherspoon [2013] NSWSC 1730 Hearing dates: 4, 5, 6, 7 November 2013 Decision date: 21 November 2013 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Not guilty of the offence of murder and not guilty of the alternative offence of robbery in company with the infliction of grievous bodily harm. The accused is discharged in relation to these offences. Catchwords: SENTENCE - special hearing - found unfit to be tried - determined that accused will not become fit during twelve months after finding of unfitness - murder - alternative offence of robbery in company with the infliction of grievous bodily harm - Crown case depends upon accused's admissions - reliability of accused's admissions - reliability affected by accused's mental illness, drug abuse and delay between commission of offence and date of admissions - direction according to terms of s 165, Evidence Act - not satisfied beyond reasonable doubt as to reliability of accused's admissions Legislation Cited: Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Category: Sentence Parties: Regina - (Crown) Anne Maree Wotherspoon - (Accused) Representation: Counsel P Barnett SC - (Crown) P Rosser QC - (Accused) Solicitors Solicitor for Public Prosecutions - (Crown) Ramsland Laidler Solicitors - (Accused) File Number(s): 2011/68636 Judgment 1The accused, Anne Maree Wotherspoon, was charged on 2 March 2011 with the murder of Margaret Anne Gall on 25 March 2002. The accused was found unfit to be tried by Hidden J on 27 August 2012 and referred to the Mental Health Review Tribunal where it was determined that the accused will not become fit during the twelve months after the finding of unfitness. 2The hearing before me was conducted as a special hearing pursuant to ss 21 and 21A of the Mental Health (Forensic Provisions) Act 1990 (the Act). Apart from the offence of murder, the indictment contains an alternative count of robbery in company with the infliction of grievous bodily harm. The accused is deemed to have entered pleas of not guilty to each offence. 3The evidence in the Crown case was largely uncontested. It was common ground that the only evidence capable of supporting a conviction on the murder count or the alternative count is the accused's admissions to her presence at the deceased's home on the day of her death from blunt force injury to the head, allegedly inflicted in the course of a "home invasion" carried out by persons nominated by the accused as Small, Maynard and Bridge (in addition to herself). The reliability of those admissions determines whether a qualified finding of guilt is available under s 22 of the Act. The Evidence in the Crown Case 4In March 2002 the deceased Margaret Gall lived at 29 Adelaide Street, Raymond Terrace with Adrian Boards and Denise Purcell. The three bedrooms of the house were all on the right-hand side of the building seen from the street. The deceased occupied the rear room, Mr Boards the middle and Ms Purcell the front. The deceased was supplying cannabis to her daughters Amanda and Eliza Gall and their respective partners and at least one or two others in the community. 5In the early hours of Monday 25 March 2002 the deceased returned to her residence after visiting her daughter Tammy Dow in Forbes. That morning around 5.30 am, Mr Boards left the premises and went to work. The deceased went out for some part of the day, visiting relatives and other acquaintances. She was at home at about 1.30 pm when Ms Purcell left in the deceased's Jaguar motor vehicle to go to Newcastle. At that time, a television show was being recorded which the deceased was to turn off at its conclusion at 2 pm. 6Apart from those responsible for the death, Ms Purcell was apparently the last person to see the deceased alive. At about 4.30 pm that evening Mr Boards returned from work. He found the deceased dead on the floor of the lounge room with extensive head injuries. She was lying with her feet close to the front door, at an angle to the door, with her head towards the centre of the lounge room. The area was heavily blood stained. Police and the ambulance were called. The house was declared a crime scene and sealed off when the first police arrived. 7The ensuing investigation failed to identify the person or persons responsible for the killing. The investigation at that time was headed by Detective Senior Constable Hogbin. In the course of the investigation the police seized a number of hammers, all of which have been scientifically examined but none can be connected to the deceased or her death. 8During the course of the investigation the police attended premises occupied by Mark and Kelly Morsillo. Certain articles of jewellery were found there. Police also searched the home of Tracey Bridge and took possession of other items of jewellery. Some of these items were identified by relatives or associates of the deceased as identical with or similar to items of jewellery seen in the possession of the deceased. 9At the end of the investigation by Detective Hogbin a brief was prepared for the Coroner's court. Detective Hogbin nominated a number of persons of interest of whom the accused was not one. 10In 2008 the investigation was transferred to Detective Senior Constables Logan and Cook. At about this time Detective Logan had come into contact with the accused in relation to a domestic violence incident. He had no reason to consider the accused a suspect in the murder, although Damien Small was a suspect and was in a relationship with the accused at the time. 11During Detective Logan's dealings with the accused he asked if she knew anything of the death of the deceased. The accused volunteered she knew who did it and provided the names Shayne Maynard, Damien Small and Tracey Bridge, also known as Tracey Wallace. In later discussions, on 12 March 2009, whilst the accused was in custody for unrelated matters, she revealed she went to the premises with those three persons, but remained in the near vicinity in a motor vehicle in which she had travelled with Mr Small. The accused also told police she had a ring at Tanilba Bay or Raymond Terrace which was part of the proceeds of the offence. These conversations were not recorded. 12Detectives Logan and Cook went to the addresses in Tanilba Bay and Raymond Terrace nominated by the accused but failed to find any ring such as that described by the accused. 13On 22 July 2009 police returned to the address in Tanilba Bay where the accused was then residing with her father. The accused handed a ring to the police, telling them it had been taken from the home at the time of the murder. The accused also nominated for the first time that William Swain had driven Maynard and Bridge to the deceased's home on the day of the murder. 14The deceased's daughter Tammy Dow indicated she had seen the deceased wearing the ring in the fortnight before her death. Ms Purcell and another friend, Deborah Mortimer, described it as not dissimilar to what the deceased would wear. 15Mr Boards was of the opinion it didn't look like a ring the deceased would wear, and the deceased's other daughters, Amanda and Eliza, both indicated they didn't recognise the ring, each adding they weren't aware of all of their mother's jewellery. 16Police obtained authorisation to intercept a number of phone calls, including three phone calls made by Damien Small to the accused from prison, on 15, 18 and 21 August 2009. In those calls the accused speaks of her intention to confess, notwithstanding Small's protestations that she did not commit the offence, because Small is in gaol and she can't bear to be without him. She indicates she expects to get 15 to 20 years. She further indicates she wishes to get onto methadone, and getting into gaol is the easiest way and the most effective way to achieve it. 17On 23 November 2009, Detectives Logan and Cook met with the accused in Raymond Terrace. The police spoke to the accused at the accused's request. During that conversation the accused indicated that she had gone to the front door of the deceased's home but did not enter. Later in the conversation the accused disclosed that she did enter the deceased's home and removed jewellery and drugs. She claimed to have seen the assault committed upon the deceased and said that she was armed with a knife at the time she entered the home. The accused claimed to have left the home by jumping a number of fences during which she believed she dropped a wallet previously taken from Newcastle. This conversation was not recorded nor was the accused cautioned. 18Later that day, in the company of police, the accused indicated two premises one of which was the house she had attended on the day of the offence. Those premises included number 29 Adelaide Street. 19At about 2.45 pm, the accused attended Nelson Bay police station where she was formally arrested and cautioned in relation to the murder. The accused declined to speak with anyone from the Aboriginal Legal Service. At 3.30 pm the accused commenced an interview with police which was recorded. 20In that interview the accused said that the deceased's daughter's boyfriend, Jason Fuller, had told Damien Small that drugs were available at the deceased's home. According to the accused, Damien Small repeated this information to Tracey Bridge, Kerry Dunbar, Shayne Maynard and the accused at the house of Bill Swain on the day of the home invasion. The accused claimed that she went to the house in a green car belonging to Damien Small. The other offenders were in a car driven by Bill Swain. The accused claimed that she went to the front door, knocked on the door and asked the deceased for directions. The others were said to be in the bushes around the side of the house. 21The accused had a kitchen knife which she obtained from Mr Swain's kitchen. The accused was aware that a hammer was taken to subdue the deceased and she contemplated that the deceased might be seriously hurt, because all of the offenders were under the influence of "ice". 22Whilst asking for directions, the others rushed into the home (Small and Maynard first, followed by Tracey Bridge), the accused went straight to the first bedroom (Ms Purcell's room), lifted a mattress which was part of an ensemble, grabbed a bag of white powder (the drugs) and then went to a jewellery box on a table from which she took jewellery. The accused said that she placed the sleeve of her top over her hand to open the jewellery box, although no-one had gloves with them. 23The accused claimed that she emerged from the bedroom and saw Small place his hand over the deceased's mouth because she was screaming, trying to pick up a bar or something, and that the deceased then hit Maynard. At this point "they" started hitting the deceased with the hammer in the head and "blood was everywhere". The accused says that she did not see the deceased being struck with the hammer on the floor, having left the house by that stage. 24Later in the interview, the accused described Mr Small and Mr Maynard on either side of the deceased whilst she was lying on the ground, striking her with the hammer. The accused said that she left by the front door, but was not obstructed by the deceased. 25The accused said that she tried to jump the fence but couldn't get over it, dropped a wallet in the backyard (that she had previously stolen at Newcastle beach) and then returned to the house of Tracey Bridge. There, the accused assisted Ms Bridge to remove blood spatter. The accused wiped the handle of the knife with alcohol wipes and left it in Ms Bridge's home. Mr Small and Mr Maynard were also blood spattered. The clothes worn by the offenders and the hammer used on the deceased were bagged and taken away for disposal. The accused split the "speed" into three bags and later sold the majority of the jewellery to drug dealers. 26Police allowed the accused to leave the station and continued their investigations. 27Some time during 2009, after the accused commenced to speak with police, the accused gave a very brief version of her involvement to her then partner, David Insley. In the course of that account, the accused said that Mr Swain drove all of the offenders to and from the deceased's house. 28On 15 April 2010, Detectives Logan and Cook spoke to the accused at Newcastle courthouse. The accused expressed her feelings of guilt because she had not done anything to stop the deceased from being killed. She said that she went there to steal. The accused claimed that it was two o'clock in the morning at the time of the offence and that it was very dark. 29On 6 July 2010 the police again spoke with the accused at Parramatta Police Station by way of an electronically recorded interview. At this time the accused was in custody serving a prison sentence. She declined the assistance of a legal representative and a support person. In this interview she gave a similar general version of attending the home of the deceased with the same three co-offenders, going to the bedroom and taking drugs and jewellery. She claimed that the offence occurred during the day after lunchtime and that she hid the knife down her pants. The accused confirmed that she had not previously been to the house or met the deceased. She described the deceased as "slim". She and Mr Small left through the front door. When the police sought to elicit details from the accused, their questions were met with "I can't remember". 30On 2 March 2011, Detectives Cook and Logan arrested the accused in Newcastle for the murder of the deceased. When informed of the fact that she would be charged, the accused said "no Dave, I didn't do it. I can't go back to gaol, I can't. I'm just getting my life together." The accused then sat in the gutter and commenced to cry. She again said "I didn't do it Dave, I made it all up, I lied, I had nothing to do with it. I was told to tell you all that to throw off." Detective Logan asked the accused what she meant by that. The accused replied "I had to do it, I had no choice, I had a bad habit then. I was told to say those things. You have to believe me Dave. I had to protect my family, my mum and dad would have been killed, you don't understand." Detective Logan commented on the fact that the accused had never previously mentioned this. The accused responded "you don't understand Dave, I had to do it. I was given drugs to do it. Fuck it just charge me, I'll just do the time. I'll do the time for something I didn't do." 31Later in the police vehicle, the accused was asked who told her to confess the offence. The accused replied "Amanda ... The murdered lady's daughter. Fuck it Dave, just charge me. I'll do the time." 32On 15 March 2011, Detectives Logan, Cook and the accused's father visited the accused in gaol. During that conversation the accused said "okay, I was there, I'm so sorry, I'm so sorry dad." The accused burst into tears and began crying uncontrollably. She said "I was scared, I didn't know what to do, this is a big thing you know." Detective Logan asked who was with her and the accused replied "Smally, Tracey Bridge Wallace, Bill and Shane Maynard like I told you in the interviews... It was just supposed to be a home invasion dad, I swear." 33A number of statements were admitted in the course of the hearing from persons of interest in the investigation and other associates of the deceased. To the extent that those statements contained an account of conversations with various people concerning the events surrounding the death of the deceased, those accounts were admitted on a restricted hearsay basis, not as to the truth of the assertions contained therein. The only conclusion to be drawn from the combination of that evidence is that the circumstances surrounding the deceased's death and the persons said to be involved were topics of conversation throughout the Raymond Terrace area for a considerable period of time. Persistent references to the involvement of Tracey Bridge, Shane Maynard, and Damian Small, the commission of a home invasion for the purposes of obtaining drugs and the use of a hammer were common themes. 34The forensic pathologist, Dr Lee, conducted the post-mortem on the deceased and gave evidence with respect to the autopsy report. The deceased was described as 171 cm in height, weighing 97 kg and of an obese build. Of the more than 25 separate blunt impacts to the head, all of which were of similar appearance in that they showed typical features of lacerations, including minor abrasion rims, surrounding bruising and bridging tissue, there were no semicircular or circular injuries. Dr Lee agreed that the lacerations were short and straight and that a metal jemmy bar was consistent with the infliction of those injuries. Dr Lee agreed that there were no typical hammer imprints, that is, of a circular nature. Considerations Relating to the Reliability of the Accused's Admissions to Police 35Two reports under the hand of Prof Greenberg dated 18 February and 25 March 2012 became exhibit KK in the proceedings. Prof Greenberg undertook to assess the accused's mental state and reliability at the time of her interview on 23 November 2009 and again in July 2010. Prof Greenberg conducted a psychiatric assessment of the accused on 6 February 2012 at the Long Bay prison hospital. At the time of that assessment, the accused was distressed, displayed evidence of overt psychotic features and claimed that she had been forcefully taken on a plane to America where she was housed in a high protection facility. The accused gave Prof Greenberg further accounts consistent with paranoid schizophrenia, such as a belief that authorities were attempting to clone her, that operatives of the Mafia wanted her dead and that she had a microchip in her arm. The accused was then taking an antipsychotic medication which she thought was useless because she did not believe that she had a mental illness. 36The accused reported that she began using amphetamines intravenously at the age of 12. She reported regular use of intravenous crystal methyl amphetamine and from the age of 13 she began to abuse heroin which is her drug of choice. The accused also abused alcohol, cannabis from the age of 14 years and other solvents including petrol, liquid paper, butane, paint and glue from the age of 12 years. She indicated experimentation with LSD and various sedative medications. 37The accused reported sexual abuse by her uncle between the ages of three and five years. She also reported physical abuse by a number of her ex-partners and an episode of rape in her mid-20s. 38Prof Greenberg diagnosed the accused with paranoid schizophrenic disorder or less possibly a chronic persistent drug induced psychosis. He was of the opinion that her six year history of persistent and continuing use of intravenous substances was likely to have aggravated the severity of her psychotic symptoms. She presented to Prof Greenberg with acute symptoms of a psychotic illness, namely, hallucinations, delusions and loosening of association of the thought process. She did not have the capacity to understand the nature of criminal proceedings and did not understand her role as the accused. The accused was then unfit to plead and unfit to stand trial. 39Prof Greenberg reviewed the accused's Justice Health medical records between 1999 and May 2010. Over that period of time the accused was assessed by many treating psychiatrists whilst in detention. Prior to the accused's release on 9 July 2009, the accused reported auditory hallucinations, persecutory ideas and displayed poor insight into her mental state. A community treatment order was applied for on 23 June 2009 but was refused. Upon her release the accused was referred to an outreach service providing support to mentally ill offenders. However, the accused was non-compliant with her medication and was uncontactable on 29 October 2009. 40On 10 February 2010, the accused was in the custody of police. She had a two-day history of aggressive behaviour, stated that she had attempted to kill herself and was reportedly suffering from post-traumatic stress disorder. It was also reported that she had been physically and sexually assaulted on the previous Saturday. She appeared to have no overt delusions. 41Prof Greenberg reviewed the intercepted calls between the accused and Damian Small against the background of her severe illicit substance addiction and her history of intravenous drug use. Prof Greenberg was of the view that the accused was suffering from opioid and amphetamine withdrawal and possibly from some other illicit substances during August 2009. A possible motive for her confession was said to reside in her withdrawal symptoms and her difficulty finding illicit substances whilst in the community. Prof Greenberg thought that this was an underlying driver of the choice to disclose the information at that time. 42Prof Greenberg described the accused in the interview on 23 November 2009 as alert, maintaining good eye contact, kempt in her appearance without any evidence of bizarre comments, delusions, hallucinations or other psychotic phenomena. The accused's answers are thought to be appropriate and she responds in a timely fashion to questions. At that time the accused was living in the community under the care of a community mental health service, although she appears to be non-compliant with her medication at this point in time. Prof Greenberg was of the opinion that whilst the accused was not acutely psychotic at the time, she may have had some residual psychotic symptoms. 43With respect to the interview on 6 July 2010, Prof Greenberg notes that the accused again makes good eye contact and is alert during the interview. Prof Greenberg saw no evidence that the accused's responses were influenced by delusional beliefs or auditory hallucinations. There is no evidence of bizarre or inappropriate behaviour during the interview. At this time the accused was in custody and under the care of Justice Health. She was admitted to G Ward of Long Bay prison hospital on 7 May 2010 complaining of auditory hallucinations, referential delusions and being poisoned. However, during the interview she states that she is taking her medication and not using illicit substances. Directions of Law 44I direct myself that, in so far as the Crown case depends upon admissions made by the accused, I could only use those admissions in reasoning towards the accused's guilt if I found them to be reliable. Given that those admissions are the only evidence capable of founding a qualified guilty verdict, it follows that I must be satisfied beyond reasonable doubt of that reliability. The reliability of the accused's representations to police and others must be determined having regard to the accused's pervasive mental illness, drug abuse and the delay between the commission of the offence and the date of those admissions. 45In determining this issue, I have directed myself according to the terms of s 165 of the Evidence Act 1995. That section relevantly provides :- (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b)....... (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d)....... (e)........ (f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g)........ (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 46Thus, s 165 (1)(a) applies to all of the accused's admissions against interest. It also applies to all of the accused's admissions on the basis that their reliability may be affected by her psychiatric illness. Section 165 (1)(f) applies to the accused's admissions against interest on 12 March 2009, 22 July 2009, 23 November 2009 in Raymond Terrace before her formal record of interview, 15 April 2010 and 15 March 2011. 47I therefore take into account the fact that the admissions by the accused may be unreliable for the following reasons :- (a)There was a delay of seven years between the commission of the offence and any admission of involvement by the accused, during which time the police investigation had not identified the accused as a suspect, although it had identified her then partner, Damian Small, as a suspect. (b)The accused has had a pervasive mental illness since 1999. In particular, 10 days before the date of the first relevant admission to police in March 2009, the accused was complaining of voices, seeing ghosts and admitted to non-compliance with her psychiatric medication for a two-month period. On 4 March 2009 she was diagnosed with a cluster B borderline and antisocial personality disorder. On 11 March 2009 she was suggestible with regard to psychotic symptoms and reported paranoid ideas and auditory hallucinations. She was diagnosed with a schizoaffective disorder and Poly substance abuse. (c)Following the accused's release from custody on 9 July 2009, she failed to receive any mental health support in the community and was not compliant with her medication over the period including the admissions of 22 July 2009. (d)Two days after the admissions to police in April 2010, the accused was admitted to Mullawa Correctional Centre. She reported use of crystal methamphetamines and heroin, was preoccupied with voices and was rescheduled under the Mental Health (Forensic Provisions) Act 1990 on 30 April 2010. On 7 May 2010 the accused was noted to have positive psychotic symptoms, auditory hallucinations, paranoid beliefs and non-compliance with her medication for one or two years. (e)The accused expressed a desire to return to gaol for the purposes of obtaining treatment for her long-term drug addiction within three weeks of claiming to police that a ring in her position was taken from the deceased's premises on the night of the offence. 48Accordingly, I caution myself in relation to the acceptance of the accused's admissions as reliable and with respect to the weight that may be attached to them. 49In addition to these considerations, there are a number of objective features which are capable of undermining the reliability of the admissions. Those features are :- (i)The accused provides different accounts to the police from time to time with respect to the circumstances under which she and others travelled to the home of the deceased. (ii)The uncontradicted evidence from Ms Purcell was that the jewellery box in the bedroom, entered by the accused, contained her jewellery and that the deceased's jewellery was kept in the bottom drawer of a chest of drawers in that bedroom. (iii)No jewellery conclusively belonging to the deceased was ever located in the accused's possession. (iv)There is no evidence that there were any amphetamines in the deceased's premises. (v)The accused's account of leaving the premises by the front door without obstruction from the body of the deceased is inconsistent with the objective evidence. In particular, the deceased's proximity to the front door renders it unlikely that the door could be opened from the inside to allow easy exit from the premises. (vi)The accused described the deceased as "slim", a description which does not accord with the objective evidence. (vii)The accused's claim that she took a knife to the premises, concealed down the front of her pants, and that on returning to Miss Bridge's home she wiped the handle with alcohol wipes before leaving it in a drawer, appears inconsistent with her assertion that she was affected by "ice". (viii)On 15 April 2010, the accused claims that the offence occurred in the early hours of the morning. (ix)The accused's nomination of the weapon that inflicted the injuries on the deceased, namely, a hammer, is not conclusively supported by the post mortem report. It is however consistent with a significant quantity of rumour and innuendo in the weeks and months following the offence. (x)There is no evidence to the effect that the deceased's daughter, Amanda, knew or had met the accused. 50Having regard to the factors that I have referred to above, and paying full regard to the matters that are capable of affecting the reliability of the accused's admissions, I cannot be satisfied beyond reasonable doubt as to their reliability. It may be accepted that there are some features of the offence that are described by the accused in the course of her formal records of interview that are both internally consistent and consistent with the objective evidence (such as the time of the offence, the position of the deceased on the floor and the description by the accused of the ensemble bed in the first bedroom), but these features taken together are not sufficient in my view to outweigh the misgivings occasioned by the accused's psychiatric illness, her desire at one stage to be incarcerated for reasons unassociated with the commission of the offence and her retraction when she was informed that she would be charged. 51I remain unpersuaded to the requisite standard that the accused was present on the night of the offence. The information that she was able to provide to police, such as it was, was available to her from general gossip in the community, putting to one side the likelihood that her partner at the time was able to provide that detail on the basis that he was present. Verdict 52For these reasons, I find the accused not guilty of the offence of murder and not guilty of the alternative offence of robbery in company with the infliction of grievous bodily harm. The accused is discharged in relation to these offences. 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: 22 November 2013