Supreme Court New South Wales Medium Neutral Citation: R v Stables [2014] NSWSC 697 Hearing dates: 8 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On each count not guilty by reason of mental illness Catchwords: CRIMINAL LAW - murder - trial by judge alone - defence of mental illness Cases Cited: The King v Porter (1936) 55 CLR 182 R v Minani [2005] NSWCCA 226, 63 NSWLR 490, 154 A Crim R 349 Hawkins v The Queen (1994) 179 CLR 500 R v S [1979] 2 NSWLR 1 Category: Consequential orders Parties: Regina (Crown) Luke Paul Stables (accused) Representation: Counsel: Mr P Lynch (Crown) Ms C Loukas SC (accused) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) SE O'Connor - Legal Aid Commission (accused) File Number(s): 2012/280033 reasons for verdict 1The accused, Luke Paul Stables, has been tried before me, sitting without a jury, for the murder of his mother, Enriquita Stables, and the wounding of his brother, Mark Stables. In respect of his brother, he was indicted for wounding with intent to cause grievous bodily harm, but in the course of the trial that charge was amended to one of reckless wounding. The charges arise from a tragic incident at the family home at Dean Park in the evening of 6 September 2012. The only issue in relation to both charges is whether he has made out the defence of mental illness. 2The accused was 28 years old at the time of the incident. He was living at the family home with his mother, his father, John Stables, and his older brother, Mark. He also has a younger brother, Steven, who is married and who was living at another address in Dean Park. Background 3Enriquita Stables was of Filipino origin. At the time of her death she and John Stables had been married for almost 30 years. It seems that they had been a devoted couple. When he was interviewed by police on the night of the incident, John Stables said that the accused had "virtually killed" him, as Enriquita had been his "whole life." 4There is in evidence a volume of material about the accused's medical history. Although it is important, a brief summary of it is sufficient for present purposes. He suffers from neurofibromatosis, a condition which manifests itself as lumps on his body and also in his brain. This was apparent from the age of about 13, and it may have been congenital. As a result he has temporal lobe epilepsy, and has suffered seizures from the age of 19. Neurological testing revealed cognitive impairment, consistent with mild mental retardation. 5In interviews with the police the accused's father and brothers described a longstanding pattern of irrational, aggressive and violent behaviour on his part, directed at them. John Stables referred to an incident a couple of years previously when the accused had picked him up and thrown him against a wall, breaking his hip. Generally, he said that the accused "used to go crazy quite often." He said that "when he was placid he was quite O.K. but occasionally he'd go absolutely ballistic, uncontrollable ... ." Both Mark and Steven said that there were many incidents when he was violent towards them. Mark described him as "a nutter" and "just crazy." Asked what he meant by that, he replied, "Just you know, fighting for nothing, stabbing, stab with a screwdriver, you know, doesn't matter what it is ... you know like, metal pole, ... hit with a baseball bat, just everything." 6Steven, when asked to describe the accused's behaviour said, "Just unpredictable ... he could do anything. He'd be happy one minute and then psycho the next." Steven came to the family home on the night of the killing, following a telephone call from his father. When he saw the accused he noticed that he had a "blank stare." He told police that the accused used to stare like that all the time when he was "spaced out" or "angry." 7On occasions when he became aggressive police were called. It seems that the only person who could control him, at least at times, was his mother. John Stables told police that, on occasions when he went "crazy", she would try to calm him down and get him to take his medication. That would calm him down "pretty quickly" but, as John Stables put it, "he won't even realise what he's done." 8Over the years he had been admitted to hospital on a number of occasions following an outburst. Medical records noted post-ictal confusion or aggression. He was sometimes observed to be delusional, speaking of hearing voices or of spirits entering his body, and post-ictal psychosis was diagnosed. He continued to have seizures despite a course of medication, and a neurological assessment in August 2011 diagnosed "intractable epilepsy not controlled with medication." 9In June 2012, three months before the incident, he saw Dr Rhonda Buskell, psychiatrist, with his parents. She noted the parents' concern about his longstanding tendency to be aggressive, which they did not attribute to his seizures. While she did not elicit symptoms of post-ictal psychosis, she was of the opinion that he manifested features of post-ictal confusion, associated with agitation and aggression. In August 2012, Dr Chong Wong, neurologist, noted that he was having one to two complex partial seizures per month, and changed his medication. The incident 10On the evening in question the accused, his parents and his brother, Mark were at home. His parents were in the lounge room, watching television. Mark was asleep, as he had to start work early the next day. The accused started screaming and shouting. His mother tried to calm him down, as did Mark, who had been woken by the commotion. The accused grabbed his father by the throat and was screaming, "Nanna's telling me, Nanna's talking to me." "Nanna" was his paternal grandmother, who was deceased but to whom he had been close. He kissed his father, which he had not done for many years. He also grabbed Mark by the neck and said, "They're all tryin' to kill me, they're all trying to kill me." Mark had no idea to whom he was referring. 11He ran into his bedroom, where he had a collection of what might be described as ornamental swords. He came out with one of them, a Samurai style sword. His mother told Mark to run and pushed him into the laundry. Mark tried to close the door to prevent the accused following them, but he lunged through the laundry door and stabbed his mother in the back. She fell down and he stabbed her several more times. 12Mark attempted to intervene but the accused lunged at him with the sword. Mark grabbed the sword and struggled with him, eventually disarming him and restraining him until the police arrived. In the process Mark sustained a number of injuries, giving rise to the charge of reckless wounding. In the meantime his father, John Stables had dialled 000 to have the police come to the house, saying that the accused had an ornamental sword and that he was going "berserk." He did not see the accused stab his wife, but it was while he was speaking to the 000 operator that Mark called out to him that she was dead. A recording of the 000 call is in evidence. One can clearly hear John Stables' outrage and anguish at what had occurred, and to listen to the recording can only be described as heartbreaking. 13When police and ambulance officers arrived Mrs Stables was pronounced dead. On post-mortem examination a number of stab wounds were identified, some more serious than others. The lethal wound had penetrated the right side of the chest, passing through the right lung, the diaphragm and the liver, and causing significant internal bleeding. 14The accused was arrested at the scene and spoke to police briefly. He said that he did not know what had happened but he knew that he had stabbed his "mum." Asked if something had happened before he stabbed her, he said that he "went crazy." He said that he was eating sausages and he started crying. Asked what he was crying about, he said that he did not know but added an inexplicable reference to "barbeque sauce." He said more than once that he did not know why he had stabbed his mother. 15 He was taken to Blacktown Hospital, where his behaviour was observed to be bizarre. Police noticed him to be breathing fast and heavily, that his eyes were open wide and appeared glazed, and he was staring at the ceiling. He spoke of spirits and a ouija board. At one stage he asked to be put in a mental hospital and then said "fuckin' sausages", and was observed to be shaking his head from side to side. While being examined by doctors, he said that he heard an old female voice in his head telling him not to go crazy. He also said that voices told him to take his medication and that he shouldn't do "stupid shit." On another occasion he was seen to be crying loudly and he said "Sorry, mum." 16On 7 September he was refused bail at Blacktown Local Court and he has remained in custody since. He suffered seizures on 8 and 9 September, and was admitted to Westmead Hospital for several days thereafter. A psychiatrist at the hospital, Dr Manish Anand, noted that he appeared perplexed and expressed delusional thoughts. He diagnosed him to be suffering from post-ictal delirium, with or without post-ictal psychosis, and recommended ongoing treatment with anticonvulsant medication. Two days later, similar observations were made by Dr Sara Ghaly, psychiatrist, who described ongoing signs of cognitive impairment, perplexed affect, and slowing of thought processes. She thought that he was suffering from a delirium secondary to his post-ictal state with psychotic features. 17On 7 December 2012, he took part in an electronically recorded interview with police. It was a lengthy interview but it is not necessary to recite it in any detail. He described his epileptic condition, saying that if he had a seizure he could not really remember what he'd done. He said that he had had a good relationship with his mother. Asked if he had ever had any fights or problems with her, he said, "No, I done everything for my mum, I just can't work out why ... ." He went on to say that on the evening in question he had had an altercation with his brother, Mark in his bedroom relating to the family pets, a cat and a dog. His mother came into the room, and he could remember that he had the sword and that Mark and his mother were screaming. He said that he was thinking to himself, "Did Mark do it or did I do it?" He thought that Mark must have pushed his mother onto the sword. 18He said that he had taken his medication that morning but not that night. The accounts given to police by his father and by Mark were put to him briefly, but he said that he remembered none of that. His only recollection was being in his room the whole time. 19Later in the interview he again expressed his uncertainty about who was responsible for the stabbing of his mother. He said: "Did I stab her or did I not stab her? ... I am always thinking to myself did I do it or didn't I do it? Because I'm here, like I'm always thinking to myself am I hearing these voices and everything, did you do it or didn't I do it? ... I'm thinking to myself I didn't do it. ... I did have the sword in my hand and then I'm just thinking to myself, what the fuck just happened? And then I'm just thinking the whole time I was in gaol I'm just thinking did I fucking do it or didn't I do it? Because I did hear, I have, I've been hearing all these voices the whole time." 20Asked what the voices were saying, he said, "Don't take the fucking blame, Luke, like and I don't know who it is, like it's, it is some scary shit like ... ." Asked whether he was coming out of a seizure at the time he found he had a sword in his hand, he said, "Yeah, I was having a seizure like, 'cause that's what I don't like the stuff in my brain and everything like." 21Three other matters should be noted. In evidence is an exercise book which the accused seems to have used as a diary. On one page there is an entry, apparently made some time in April 2012, which reads, "let kill a family member ... old lumy." There is nothing in the evidence to explain this entry. In a later entry, dated 31 April, he wrote, "I don't not (know?) when it started but I think some spirit is with me and it's a bit scary ... ." At about 7.30am on 6 September, the day of the incident, he told a neighbour, Ms Rose Kinder, that he was "having a bad day." Forensic psychiatric evidence 22For the purpose of these proceedings, the accused was examined by two well known and respected forensic psychiatrists, Dr Bruce Westmore and Dr Richard Furst. They provided reports and Dr Westmore gave oral evidence. 23To both psychiatrists the accused gave an account of the fatal incident more or less to the same effect as that which he had given to the police in the December interview. Neither psychiatrist considered that account reliable. Dr Furst in his report said that he would "place little weight" on that version of events, given the passage of time between the incident and the interview and the likelihood that his memory of his mental state at the time was "impaired by his epilepsy, confusional state, and persistent signs of psychosis." In oral evidence, Dr Westmore acknowledged the possibility that his suggestion that Mark might in some way have been responsible for the stabbing was an attempt at self-justification, but referred to evidence that he was "quite confused and disorganised" on the night in question. On balance, he considered that his recollection of the incident was "probably disturbed." 24I should say that, for my part, I am satisfied that Mark Stables played no part, even indirectly, in the death of his mother. Rather, he disarmed the accused, suffering injuries in the process. I have no doubt that the events unfolded in the way in which I have earlier described them. 25Dr Furst's report was the earlier of the two. He explained epilepsy as a chronic brain disorder, characterised by recurrent unprovoked seizures. A seizure typically causes "altered awareness, abnormal sensations, focal involuntary movements or convulsions." He continued: "Although seizures usually only last for about 1-2 minutes, there are well described post-ictal (after-seizure) phenomena that have psychiatric relevance, including ongoing altered states of consciousness and awareness, headache, and post-ictal psychosis. About 30-50% of all people with epilepsy have psychiatric difficulties, the most common of which are changes in personality, psychosis, violence, and depression." 26Dr Furst noted that the accused's anticonvulsant medication had changed only two weeks before the incident because his epilepsy was persisting, and that he had seizures after the event. He considered it likely that he was having a seizure either at the time of the incident or shortly before it. He referred to the observations of Dr Anand and Dr Ghaly at Westmead Hospital, describing their findings of post-ictal confusion or delirium with psychotic features as "a form of organic psychosis, which is often associated with cognitive impairment, mood instability and aggression." Referring to the records of previous treatment with which he had been supplied, he said: "The medical files were consistent with Mr Stables suffering from temporal lobe epilepsy, complicated by post-ictal aggression, which is a neurological disorder often associated with mood disturbance, cognitive impairment, and psychotic symptoms. This is the most likely explanation for his apparent paranoid thoughts and hallucinations at the time of the offence in question before the Court." 27Dr Westmore had the report of Dr Furst when he prepared his own report, and his conclusions are to the same effect. In the light of the accused's background and his behaviour on the night in question as described by his father and his brother, the fact that he had not taken his medication that night, the fact that he had poorly controlled epilepsy and that he suffered subsequent seizures, Dr Westmore concluded that he was "at the time he stabbed his mother, on the balance of probability, suffering from a psychotic episode due to a general medical condition (neurofibromatosis and related epilepsy)." The law 28Of course, in most cases murder is a crime of specific intent, that is, an intent to kill or to inflict grievous bodily harm. In helpful written submissions Ms Loukas SC, for the accused, drew my attention to R v Minani [2005] NSWCCA 226, 63 NSWLR 490, 154 A Crim R 349. In that case the Court of Criminal Appeal had occasion to consider the approach to the defence of mental illness in the trial of an offence of specific intent, in the light of the decision of the High Court in Hawkins v The Queen (1994) 179 CLR 500. The offence in question in Minani was malicious wounding with intent to inflict grievous bodily harm. Relevantly for present purposes, Hunt AJA, with whom Spigelman CJ and Howie J agreed, said at [32]: "Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent." 29Applying that analysis to the present case, I must determine firstly whether it was a deliberate or willed act of the accused which caused the death of his mother. On the evidence, clearly it was, and Ms Loukas made no submission to the contrary. I am satisfied beyond reasonable doubt that that element is made out. However, in the context of the present case I must determine whether he was criminally responsible for doing that act. It is that question which raises the defence of mental illness, to which I shall turn shortly. It is only if I were to reject that defence that I would have to consider the requisite intent. 30Whether the reasoning based on Hawkins v The Queen is applicable to the offence of reckless wounding is not so clear. Neither the Crown prosecutor nor Ms Loukas addressed this question. While reckless wounding is not an offence of specific intent, it has a mental element. It must be established that the accused realised that by his actions he might possibly cause actual bodily harm to his brother: s 35(4) of the Crimes Act 1900. In the light of medical evidence from Blacktown Hospital about Mark's condition after the incident, I am satisfied beyond reasonable doubt that there was a wounding. I am also satisfied beyond reasonable doubt that it was caused by a deliberate, willed act of the accused. Again, Ms Loukas did not suggest otherwise. 31It may be that it is at that point, before considering the requisite state of mind, that I should determine the accused's criminal responsibility for his act by considering the defence of mental illness. However, if that is not the correct approach, I should record that I am in any event satisfied that the element of recklessness is established. Yet again, Ms Loukas put no argument to the contrary. In that event, the defence of mental illness remains to be considered. 32Ms Loukas' submissions reveal that in murder cases where the defence of mental illness arose a number of judges of this court, perhaps in ignorance of Minani, have continued to approach the issue in accordance with the law as it stood before the High Court's decision in Hawkins. I must confess to having been one of them. That approach, enshrined in R v S [1979] 2 NSWLR 1, was to determine whether, absent the mental illness, all the elements of the offence had been proved before considering the defence. If I were to adopt that approach, I would find beyond reasonable doubt that the accused had the intention to kill his mother or, at least, to cause her grievous bodily harm. Again, the defence of mental illness would remain to be considered. In this case either approach would lead to the same result because, as I said at the outset, the real issue is whether the defence has been made out. 33The accused bears the burden of establishing that defence on the balance of probabilities. The defence is made out if I am satisfied that, more likely than not, at the time of the offences he was suffering from a mental illness such that he did not know that what he was doing was wrong. 34The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. Although couched in the language of a past generation, it would be difficult to find a more lucid explanation of it. Speaking of the accused in that trial, His Honour said (at 189-90): "... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." Verdict 35From their forensic experience, both Dr Westmore and Dr Furst are familiar with the legal test for the defence. Both were of the opinion that it had been met. Dr Westmore, after the passage from his report which I have quoted above, continued: "The epilepsy and the associated psychosis are diseases of the mind and Mr Stables would, in my opinion, have available to him the defence of mental illness in relation to the death of his mother. These conditions would have totally deprived him of the capacity to understand that what he was doing was wrong." Dr Furst concluded: "In my opinion, his acute confusional state and psychosis may well have prevented him from awareness of his actions at the time of the offence. He was probably also unaware of the wrongfulness of what he was doing, as his psychosis prevented him from reasoning about his actions with a moderate degree of sense and composure. He has the mental illness defence available to him." 36I am not persuaded that the accused was unaware of his actions at the relevant time, but I am satisfied that he did not know that what he was doing was wrong. I am satisfied that the defence has been established in respect of both charges. The psychiatrists did not address in terms the wounding of Mark Stables but, clearly, that was an inextricable part of the incident, affected by the state of mind in which the accused had killed his mother. The Crown prosecutor responsibly accepted that the defence was made out, agreeing with the submissions of Ms Loukas on this issue. As to the killing of his mother, I am fortified in this conclusion by the fact that there appears to have been no rational motive for the accused to do so. His relationship with his father and his brothers had been characterised by conflict, but that was not the case with his mother. He told Dr Westmore that he thought of her "all the time", adding that she "used to do everything for us, everything for me." It is particularly distressing that, because of his mental condition, he killed the woman who was dear to him and who had always supported and cared for him. 37Accordingly, in respect of both counts in the indictment I find the accused not guilty by reason of mental illness. I shall consult the parties about the form of the consequential order which I must make. 38The verdicts are, of course, inevitable. The accused's management and future are now in the hands of the appropriate authorities. It is, however, appropriate that I should recognise the harrowing experience of Mr John Stables and his son, Mark. No doubt, the injuries which Mark suffered are overshadowed by the emotional scars which both of those men must continue to wear. I express my deepest sympathy to them, as I do to Steven Stables, his wife and their son, and to all those affected by this tragic death. Order 39I direct that the accused, Mr Luke Stables, be detained at the Parklea Correctional Centre or such other place as may be directed by the Mental Health Review Tribunal until released by due process of law. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2014