R v Villalon [2014] NSWSC 725

Supreme Court New South Wales

Medium Neutral Citation: R v Villalon [2014] NSWSC 725 Hearing dates: 23 May 2014 Decision date: 23 May 2014 Jurisdiction: Common Law - Criminal Before: Price J Decision: Evidence admitted Catchwords: Criminal law - Application to exclude evidence - Substantial impairment - Undiagnosed mental illness - Research Legislation Cited: Evidence Act 1995 (NSW) s 55, s 97 Category: Procedural and other rulings Parties: Crown Michael Villalon (Accused) Representation: Counsel: Mr G. Tabuteau (Crown) Ms J. Manuell SC (Accused) Solicitors: Ms P. Jazzy (Director of Public Prosecutions) Ms K. Robinson (Accused) File Number(s): 2012/67960

EX TEMPORE Judgment 1HIS HONOUR: At the heart of this trial is the partial defence of substantial impairment by abnormality of mind. The accused is charged with the murder of Keith Chaney and the onus of proof of establishing that partial defence falls upon the accused on the balance of probabilities. 2The accused anticipates that the evidence of Dr Allnutt, Dr Westmore and Dr Furst will be to the effect that at the time of the killing the accused was likely to have been suffering from an undiagnosed and, therefore, untreated paranoid schizophrenia; that is, that he was in the first episode or prodromal stage of psychotic illness. All three witnesses are psychiatrists. 3The matter of controversy that has arisen is that the accused seeks to adduce expert evidence of a significantly increased risk of irrational violence during the first episode of, untreated psychotic illness. 4The Crown objects to the proposed evidence. The Crown referred to the anticipated evidence of Dr Nguy that the first episode of psychosis was eight weeks after the deceased was killed. On the other hand, the accused says that Dr Nguy, when he made that assessment, did not have the benefit of the evidence of the members of the accused's family. 5The accused submits that when Dr Nguy's evidence is considered as a whole, it will be clear that Dr Nguy will assess the accused as suffering from a mental illness at the time he killed the deceased. 6The Crown submits that the accused is attempting to adduce evidence that is statistically based, that people like the accused with his history of symptoms are much more likely to commit violent crime and, therefore, it supports a causal connection between the presence of symptoms and the likelihood of committing violent crime. The Crown contends that the proposed evidence puts forward an argument that there is a higher tendency with people with those symptoms to commit violent crime which is likely to mislead the jury from the focus of their task. 7The Crown submits that the anticipated evidence invites the jury to reason that if the accused has committed a violent crime then episodes of illogical thinking should be interpreted to have been psychotic symptoms rather than irrational thinking. The Crown submits that the anticipated evidence invites the jury to reason backwards. 8Furthermore, the Crown argues that it is an invitation to the jury to engage in tendency reasoning that if the accused belongs to a category of persons with those symptoms, they have a higher tendency for, or a higher likelihood to commit violent crime. 9The proposed evidence is founded upon two papers, Nielssen, Ryan, Large and Hayes, "Legal implications of the increased risk of homicide and serious violence in the first episode of psychotic illness" (the first paper) and, Nielssen and Large, "Rates of homicide during the first episode of psychosis and after treatment a systematic review and meta analysis" 2010 Schizophrenia Bulletin 36 pp 706-712 (the second paper). The lead authors of these research papers are well-respected psychiatrists who hold academic positions, in addition to carrying out private practice. Dr Nielssen regularly gives expert testimony in trials where an accused is charged with murder. 10In the first paper the authors state, at p 288: "There is a greatly increased risk of homicide during the FEP compared to subsequent episodes. A recently published study from New South Wales and two recent studies from the United Kingdom show that the risk of a patient committing a homicide during the FEP is in the order of one in 500 new cases. By contrast, the annual risk of homicide by patients who have received treatment is only about one in 10,000 per year." 11The authors state at p 292 that "Case linkage data showing an increased rate of violent offences by people who develop Schizophrenia prior to the emergence of symptoms of psychosis, or before the symptoms are detected, suggest that the prodrome of mental illness is also associated with an increased predisposition to irrational violence." 12The authors conclude at p 294: "The emerging scientific evidence and increased risk of violence and serious harm during the first episode of psychotic illness has significant implications in civil, criminal and mental health law, as well as effecting conditions and treating agencies." 13In the second paper, the authors conducted a meta-analysis of ten studies that reported details of all the homicide offenders with a psychotic illness within a known population during a specified period, and reported the number of people who had received treatment prior to the offence. The authors found that the ratio rate of homicide in the first episode of psychosis in the studies was 15.5 times the annual rate of homicide after treatment for psychosis. The authors conclude at p 711: "The findings of this study suggest that the rate of lethal violence by patients with previously treated schizophrenia is lower than previous estimates. In contrast, the rate of homicide prior to treatment of psychotic illness is higher than has previously been recognised." 14The general thrust of the papers was that there was a twenty-fold decline in the risk of homicide after treatment. The converse of that finding is that the untreated prodromal phase or first episode of a psychotic illness is associated with "an increased predisposition to irrational violence". 15In a report dated 13 May 2014, Dr Furst considers both papers and notes the findings of Dr Nielssen et al, that include a twenty-fold decline in the risk of homicide after treatment. He provides a summary of the meta-analysis by a scatter plot on p 3. Dr Furst concludes at p 4: "Given that patients with first episode psychosis often do not recognise their thoughts and symptoms as part of emerging illness. Dr Nielssen expressed an opinion that such individuals should be regarded as having a lower level of criminal responsibility. I would concur with that opinion, both generally in offenders facing the Courts in New South Wales and elsewhere for homicide and serious violence offending specifically in the case of [the accused]." 16In a report dated 9 May 2014, Dr Westmore refers to the first paper and concludes at p 2: "The article you have provided me with indicates that there is increasing research evidence to suggest that the prodromal phase of a psychotic illness is also associated with 'an increased pre-disposition to irrational violence'. It is possible that [the accused] fits into the category of patients described in the article." 17Both Dr Furst and Dr Westmore have many years experience as treating psychiatrists and forensic experts. They have given expert evidence in murder cases for many years. Their specialised knowledge, based on their training, study and experience, enables them to give expert evidence in the trial concerning the findings of Dr Nielssen et al, s 97 Evidence Act 1995 (NSW). 18I am told that Dr Allnutt, Dr Westmore and Dr First in the accused's first trial gave evidence to substantially the same effect; namely, that the accused was suffering from untreated prodromal schizophrenia at the time he killed his stepfather. The anticipated evidence of Dr Westmore and Dr Furst as to the increased risk of irrational violence during the untreated prodromal stage of a psychiatric illness could rationally effect, directly or indirectly, the assessment of the probability of the existence of two facts in issue in the trial; namely: (1) whether the accused's capacity to understand events or judge whether his actions were right or wrong, and/or his capacity to control himself were substantially impaired by an abnormality of mind from his undiagnosed mental illness; and (2) whether his impairment was so substantial to warrant his liability for murder being reduced to manslaughter. 19It appears to me that there is ample evidence from the family members for the psychiatrists to find that the accused, at the time that the deceased was killed, was in the prodromal stage of schizophrenia. 20The accused bears the onus of establishing these matters on the balance of probabilities. 21I do not agree with the Crown submission that the proposed evidence invites the jury to reason backwards. The anticipated evidence, as Ms Manuell SC for the accused submits, could have the effect of explaining to the jury, "in expert psychiatric terms the lack of understanding, insight and control that is significantly more likely to be experienced by a person in the untreated prodromal stage of a psychotic illness, compared to a person who suffers from the illness, but who is treated; or, to a person who does not suffer from the illness" (AWS at par 14). The evidence is relevant: s 55 Evidence Act. 22I do not consider that evidence of research findings that a person who is in the untreated prodromal stage of a psychotic illness is at a significantly increased risk of irrational violence is tendency evidence. The anticipated evidence is not "evidence of the character, reputation or conduct of [the accused], or a tendency that the accused has or had": s 97 Evidence Act. The evidence is not specific to the accused but it is generic evidence based on research applicable to a particular class of person. 23As Ms Manuell points out, the anticipated evidence is similar to evidence that is regularly given in criminal trials by pharmacologists as to the likely effect of alcohol consumption on a person's behaviour. The "evidence derives not from the expert's assessment of the particular accused at the time of the alleged offence, but from the results of studies, where the behaviour of a number of intoxicated people has been observed and documented" (AWS at p 22). 24Section 135 of the Evidence Act is as follows: "The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 25The evidence sought to be adduced is relevant to a core issue in this trial, the partial defence of substantial impairment. 26The evidence has significant probative value. The Crown has been served with the reports of the psychiatrists and the research papers. The Crown has had a reasonable opportunity to obtain the views of Dr Allnutt who is to be called in the Crown case. In my view there is no unfair prejudice to the Crown, nor is the evidence misleading nor confusing, nor will it result in undue waste of time. 27I do not propose to refuse to admit the evidence.