Supreme Court New South Wales Medium Neutral Citation: R v O'Keefe [2015] NSWSC 89 Hearing dates: 11-12 February 2015 Decision date: 19 February 2015 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1)On the count of murder, I return a special verdict that the accused, Bruce Francis O'Keefe, is not guilty on the ground of mental illness. (2)The accused is to be detained at the Hamden Unit of the Metropolitan Remand and Reception Centre at Silverwater, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. (3)The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court. (4)The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide that Tribunal with the following documentation: (a)A copy of these reasons for verdict and orders; (b)A transcript of these proceedings, including of the mentions of 3 February 2015 and 11 February 2015; and (c)A copy of each of the exhibits tendered at trial. Catchwords: CRIMINAL LAW – particular offences – offences against the person – murder – trial by judge alone – consideration of the affirmative defence of mental illness – accused did physical act – accused suffering from disease of the mind that led to a defect of reason – accused did not appreciate the moral wrongfulness of his act – verdict not guilty on the ground of mental illness Legislation Cited: Criminal Procedure Act 1986 (NSW), s 132(2) Mental Health (Forensic Provisions) Act 1990 (NSW), ss 37, 38, 39(1), 43(a) Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 McNaghten's Case (1843) 8 ER 718 R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Category: Principal judgment Parties: Regina Bruce Francis O'Keefe Representation: Counsel: J Crespo (Crown) A Djemal (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Hudson Lawyers (Accused) File Number(s): 2013/317464 Judgment 1. On 12 February 2015, Bruce Francis O'Keefe ("the accused") was arraigned on an indictment before me. It contained a single count alleging that, on 16 October 2013 at Lake Haven, he murdered Jennifer Lynne Dowell (to whom I shall refer as "the deceased"). No jury panel was present because, immediately before the arraignment, I had ordered, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW), that the trial on the indictment was to proceed without a jury and by judge alone. I had made that order because a document had been filed that established that the accused elected to have the trial conducted in that way, and the Crown consented to that election. 2. The accused pleaded not guilty on the ground of mental illness. Thereafter, the Crown Prosecutor opened his case. That opening, I respectfully consider, provided a way for members of the community, and in particular persons who were close to the deceased and persons who are close to the accused, to understand the evidence that was to be tendered in the proceedings. Defence counsel briefly opened in reply to the same effect. 3. It was clear after the openings that each counsel was contending that the appropriate verdict for me to return would be the special verdict that the accused is not guilty on the ground of mental illness. It was also clear that that joint contention was based largely, though not exclusively, upon the unanimous opinion of three highly experienced forensic psychiatrists with regard to the mental state of the accused on 16 October 2013. 4. A large number of documents were tendered in the Crown case. None of them was the subject of objection by defence counsel. It was also made clear by him that, although no document setting out formal admissions was filed, nevertheless there was no dispute about the Crown case. Included in those documents was a report of Dr Adams, forensic psychiatrist, of 6 October 2014, and which became Crown exhibit GG. 5. The defence case was also limited to documents. It featured reports of Dr Westmore of 14 December 2013, of 31 January 2014, and of 16 June 2014, which collectively became exhibit 5; and a report of Dr Nielssen of 15 June 2014, which became exhibit 4. As well as that, defence counsel tendered statements of two civilian witnesses and a number of police witnesses. The evidence of the civilian witnesses was not in contradiction of the Crown case, but rather in supplementation of it. The evidence of the police witnesses was simply to provide a typewritten transcript of some of the handwritten material that was already before me by way of the Crown case. Summary of evidence 1. It is in those circumstances that I turn to provide a brief chronological summary of the events that the undisputed evidence establishes. I have been very much assisted in my analysis of the evidence by way of a "chronology of agreed facts" with which I was provided by counsel before the final addresses commenced. 2. The deceased was born in January 1951, and accordingly on 16 October 2013 was aged 62 years. The accused was born in February 1960; accordingly, as at the date in question, he was aged 53 years. They had met in the early 1990s whilst working for a large Australian trade union. At the time, they were each married to other persons. In the year 2000, the deceased separated from her partner, and in 2007 she and the accused commenced an intimate relationship. At that time, the accused was still married to his wife, Ms Sharon O'Keefe. 3. In 2007, the accused was in Lismore for work with a female colleague. At the time he was under a great deal of stress, chiefly as a result of his responsibilities at work, and also his personal relationships. It is clear that, whilst in the Northern Rivers of New South Wales, the accused suffered an acute mental illness sufficiently serious to be described as a psychotic episode. His work colleague noted a number of aspects of his beliefs and behaviour. They included: imagining things that were, in truth, not there; believing that the government was seeking to murder the two of them; believing that food and drink was contaminated; smashing her mobile phone for fear that it contained a transmitter; placing the television in his motel room outside the door, because it was making "noises in his head"; and ensuring that a car be hired in a false name so that it could not be traced. 4. Eventually, the accused insisted on driving from Lismore to Rockhampton in Queensland, a not inconsiderable distance. At the least, he pressured his colleague to accompany him; at worst, he had kidnapped her. It was in Rockhampton that the parents of the accused resided. Once there, he continued to exhibit some very bizarre behaviour, including insisting that the motor vehicle that had been used on the journey be wiped down with bleach in order to remove fingerprints, and at one stage barricading himself inside a cupboard. 5. The accused ended up living in Rockhampton for six months with his parents. He was incapable of working. A general practitioner referred him to a psychologist, who diagnosed him as having suffered a major mental illness; namely, a psychotic disorder. He also expressed the opinion that the accused was suffering from paranoid, delusional beliefs. The psychologist was of the view that the accused was delusional, irrational, and no longer able to distinguish what was real from what was not. 6. The accused returned to Sydney in around March 2008. Although suffering from anxiety and depression, it seems that he was free from symptoms suggesting that he was divorced from reality. He returned to work. 7. The accused and the deceased moved into a house together in Jamisontown near Penrith. By that time their romantic relationship was well-established. By 2009, the general practitioner of the accused was Dr Dowsett in Cranebrook. The accused and the deceased moved into a house in that latter suburb in 2010. The accused and his wife, Ms O'Keefe, formally divorced in July 2012. The accused and the deceased became engaged that same year. 8. In October 2012, Dr Dowsett diagnosed the accused as suffering from anxiety and depression. As a result, the work hours of the accused were reduced to being a three day week. At around the same time, the accused commenced to see Ms Hatfield, clinical psychologist. She diagnosed him with an adjustment disorder with mixed anxiety and depressed mood. He saw her every two weeks for an extended period. 9. By February 2013, it seemed that the treatment of Ms Hatfield had been effective, in that the depression, anxiety and stress levels of the accused were in the normal range. By March 2013, the accused had returned to work, and a part-time officer had been appointed to assist him in managing his work load. 10. In April 2013, the accused and the deceased purchased a house at Lake Haven on the Central Coast of New South Wales. That was intended to be a home in which they would enjoy their retirement years together. Indeed, the deceased was not far from retirement, and there were no real problems with respect to their financial position. They moved into the home a short time later. 11. In late June 2013, Ms Hatfield closed her treatment file with regard to the accused, because it appeared that his mood disorder had abated. However, in September 2013 Dr Dowsett referred the accused to Ms Hatfield again, on the basis that his anxiety and depression had returned. That seemed to have occurred because he had been informed that there would be no further funding to permit his assistant at work to continue. On 17 September 2013, the accused saw Ms Hatfield again. She diagnosed him as having suffered a return of his adjustment disorder. The accused stopped working. 12. Ms Hatfield saw him again on 4 October 2013, and spoke to him by telephone on 9 October 2013. On the former occasion the accused was reported as thinking that he could not cope. It is also noteworthy that she recorded him as having said "I can't stop thinking… at pool from childhood something's going wrong [sic]". 13. On Friday 11 October 2013, the accused attended upon a general practitioner on the Central Coast. The general practitioner gave the accused a referral to see a psychiatrist, and suggested that he attend Wyong Hospital if his symptoms worsened. Later that day, the accused did indeed attend that hospital, seeking to have his medication changed. It is noteworthy that the accused was open about his previous psychotic episode, and expressed the fear that he may have another one soon. The accused agreed to being referred to the Mental Health Community Treatment Team for follow-up in the short term. He was also advised to make an appointment with a psychiatrist, and to continue with the therapy designed by Ms Hatfield. 14. On Saturday 12 October, the Wyong Home Based Mental Health Treatment Team made contact with the accused. On Sunday 13 October, the same team made a home visit to the accused. The accused was anxious and agitated, and remained concerned about changing his medication. He expressed feelings of helplessness. On the other hand, he denied any thoughts of suicide and any intention of harming others. 15. On Monday 14 October 2013, the accused telephoned his former wife. He was rambling. Ms O'Keefe became concerned about his welfare, and called the work superior of the accused to obtain the phone number of the deceased. Eventually she decided to drive to Lake Haven from Sydney, because she was concerned that the accused could harm himself. 16. On that same day the accused rang Ms Helen Lynch, a close friend of the deceased over many years. He claimed that he was well, but that the deceased was unwell. He said that his own daughter was coming to retrieve him, and asked Ms Lynch to look after the deceased. Ms Lynch and her husband commenced to drive from Sydney to Lake Haven. On arrival, they saw the accused in the front yard. Both of them noted that he appeared to have lost a great deal of weight, and indeed seemed to have the appearance of a demented old man. Once inside the home with the accused they noted that he was highly agitated, twitching, and moving his hands and feet. He spoke of hating the new home, and that he was "living a lie". He also told Ms Lynch that he was worried that the deceased would not be able to look after him "this time". 17. Meanwhile Ms O'Keefe and her daughter arrived at the house at about 12:30 pm. Ms O'Keefe also noticed that the accused was very fidgety and twitchy. As well as that he was vacant, and was referring obsessively to problems with the new home. At the time of her arrival, the accused was on the telephone to Ms Hatfield. The psychologist noted that her patient was complaining of very little sleep, and a failure on his part to deal with past issues, including an assertion that he had been sexually assaulted as a child. He told her that that morning he had woken up and felt that he needed to go to hospital. He also remarked to Ms Hatfield that he thought that he was "someone else that isn't there". 18. Ms Lynch and her husband had gone to find the deceased, having become concerned about her absence from her home. After they located her, she explained that she had gone to a shopping centre because she needed a break from the accused. She reported that he was imagining things. 19. At about 4:30 pm Mr Lochens, a registered nurse from the Wyong Hospital Acute Care Team, attended for a scheduled home visit with the accused. He found the accused sitting on the front lawn with his ex-wife and his daughter. The deceased was inside. At the time the accused was on the phone to Ms Hatfield. After completing the call, the accused was rambling and wandering around aimlessly. Out of the blue, he asked whether he could return to Sydney with his ex-wife, who expressed her agreement. The accused became excited and began packing. Mr Lochens left. 20. When the accused informed the deceased that he was intending to return to Sydney with his ex-wife, she expressed her surprise. A short time later the deceased was able to tell Ms O'Keefe privately that the accused had been in his current state for quite some months. She also explained that doctors had assured her that the accused would not harm himself, and that she, the deceased, was taking time off work in order to care for her partner. 21. The final noteworthy event of that day is that the accused informed his former wife that he had been molested as a child by a family friend. By this time he had announced that he preferred to stay in Lake Haven. Eventually, Ms O'Keefe and her daughter departed, leaving the accused with the deceased. 22. The following day was Tuesday 15 October 2013. At about 9:40 am, the deceased contacted the Wyong Mental Health Community Treatment Team. She reported that the accused had had a "bad day" the day before, and had not slept well the previous night. She reported that the accused was not making sense, and was expressing concern about children having drowned in the pool of their home. She sought advice about medication that could calm him down. She was referred to a general practitioner in that regard, and was advised to bring the accused to Wyong Hospital or call emergency services if her concerns developed. 23. During that day, Ms O'Keefe was unable to reach the accused on his phone. Again, she was sufficiently concerned about the situation to drive from Sydney to Lake Haven. Their daughters accompanied her. A short time after the arrival of that party at the home, the accused and the deceased arrived. The accused was physically and emotionally unresponsive to his daughters. Nor did the accused respond to his former wife, with whom he had proposed to return to live the day before. He did nothing but fiddle with his clothing and fidget. Ms O'Keefe and the two daughters left shortly thereafter. 24. At 4:42 am on the following day, Wednesday 16 October 2013, the accused phoned emergency services. He made it clear that he had stabbed the deceased and himself. Indeed, he was aware that he had killed her. He stated that he had stabbed the deceased "multiple times". He requested that a Catholic priest be arranged for him. He stated that those violent acts had by no means occurred immediately before the telephone call; indeed, they had occurred about one hour previously. 25. Uniformed police arrived at about 5 am. They found the accused lying on the floor badly injured. Photos in the Crown case suggest that he had adopted the posture of a person who had been crucified, in that his arms were outstretched, with his legs generally together, but one of them at a slight angle. The police also found the deceased. Her face had been the subject of a brutal assault. There were multiple stab wounds apparent to her body. Her clothes were in a bizarre state of disarray. 26. When spoken to by police, the accused freely admitted that he had stabbed the deceased and himself. When asked why he had done so, the accused replied "I dunno, I just did". 27. Paramedics arrived but, tragically, the deceased passed away in her own home. 28. The accused was taken to a hospital for urgent treatment. Whilst there, the police had a brief conversation with him at about 6:30 am. He recalled screaming and said "it was like I wasn't there". When asked why he had stabbed the deceased, he replied "I don't know". He spoke of having had a "vision" of a murder/suicide. On the other hand, when asked "Do you know it's wrong to stab someone?" the accused replied "Of course". 29. The accused was airlifted to a hospital in Sydney. He underwent emergency surgery for what were serious wounds. On 17 October 2013, the accused was found to be so mentally ill that he was "scheduled"; that is, involuntarily detained on the basis that he could constitute a danger to himself or others. 30. During the period that the accused was being treated in hospital immediately after 16 October 2013, he was being guarded by police officers. They made a "Guard Duty Log" containing notes of things said by the accused. Some of them were notably bizarre. They include the following (the extracts are taken from the transcriptions contained in the defence exhibits): "I tried to kill myself and my partner, I am Roman Catholic, I had to because I was going to tell my family…" "This is how it started I got hypnotised by a priest paedophile by that woman". "To many brain washes for me, they are all friends now brain washes everywhere too late to be re-programmed again". "I can't forgive her this time, why won't they let me go". 1. When spoken to by a psychiatrist, the accused made a number of other noteworthy comments: "I thought she was going to kill me over the speakers; the speakers were the paedophile; I felt a connection between the priest paedophile and sepakers [sic] I thought Jennifer was going to cut my head off; I'm frightened I might hurt someone…" "A baby drowned in the pool, when I was near the pool I collapsed, it was me I nearly drowned in the pool". "I have been trying to get help for weeks, nobody fucking helped. Too late for help now". 1. On 23 October 2013, the accused was discharged from Royal North Shore Hospital. The discharge summary stated that the accused was "severely psychotic with marked agitation on admission. His speech was incoherent and he had delusions of guilt, such as a baby's death in his house and fear of being killed. He was diagnosed with a brief Psychotic Disorder…" 2. On 24 October 2013, the accused was seen by a psychiatrist at Long Bay Hospital. At that stage he was, of course, in custody bail refused with regard to a charge of murder. Dr Smith, Psychiatry Registrar, observed that the accused had "disorganised thought form, incongruous affect and auditory hallucinations… hearing his thoughts loudly in his daughter's voice". Dr Smith diagnosed the accused as suffering from a psychotic disorder with depressive symptoms. 3. On 8 November 2013, Dr Oowise prepared a report for the Mental Health Review Tribunal with regard to the accused. He expressed the view that the accused was suffering from moderate to severe depressive symptoms, and required care in a mental health facility until his symptoms resolved. 4. On 21 November 2013, the Mental Health Review Tribunal determined that the accused was a mentally ill person who should be detained in the mental health facility at Long Bay Hospital, and an order was made to that effect. On 7 February 2014, Dr Chan expressed the opinion that the accused no longer required inpatient treatment. 5. On 12 March 2014, the accused exercised his right to silence when the police sought to interview him about the death of the deceased. 6. An autopsy had been conducted upon the deceased on 17 October 2013. The cause of death was determined to be multiple stab wounds to her chest and abdomen. She was found to have twenty-one separate wounds to her neck, upper left arm, back and torso. There were also defensive wounds to her hands. Blunt force trauma was seen to a number of locations of her face. The pathologist expressed the opinion that that trauma could well have been inflicted by a fist. 7. Finally, to conclude my review of the evidence placed before me, there was no suggestion that, before the events of 16 October 2013, the accused had ever been aggressive, let alone a person prone to acts of ferocious violence. Indeed, his brother described him as a person who had always been gentle. Psychiatric evidence 1. Dr Westmore saw the accused on 13 December 2013, having been qualified to do so by the solicitor for the accused. It is to be noted that that date is less than two months after the alleged offence. The accused provided Dr Westmore with a history generally consistent with the evidence that I have outlined above. When asked about the events of 2007, the accused stated that they included "believing that I was Jesus Christ, invasions or something like that". 2. As for his relationship with the deceased, the accused said "I loved my partner, I'm completely at a loss with what I've done to her". He informed Dr Westmore that, about two days before the alleged offence, he formed the view that the bathroom had leaked, and that he could smell something pungent which, to his mind, confirmed that fact. The following day he came to believe that a baby had drowned in the pool of the home, and that was why the home had been sold by its previous owners. 3. As for the incident itself, he said that he had fallen asleep on the lounge. He recalled the deceased coming out of the bedroom. He reported hearing a voice that said "hit me" and hitting the deceased on the chin with his elbow. He went on to say that "after Jenny fell, I had this panic that she was going to get up and kill me". He could remember thinking, after having stabbed the deceased, "if you're going to die, I'm going with you". He confirmed that, eventually, he had positioned himself on the floor of the home "as if I was going to be crucified". 4. The accused provided Dr Westmore with an unremarkable family history, though it included his use of cannabis at the age of 17 years, and a suggestion that his father had an issue with alcohol and his mother suffered from anxiety. 5. He claimed that, some days before the incident, he had been told to stop his medication suddenly by a medical professional; I interpolate to say that the other evidence placed before me does not support that assertion. 6. Dr Westmore diagnosed the accused as suffering from a depressive disorder with psychotic symptoms in partial remission. The psychiatrist expressed the view that: "Mr O'Keefe was suffering from a Major Depressive Disorder with psychotic symptoms at the time he killed his partner. He reports that at the time of the incident he heard voices, specifically his partner's voice telling him to hit her. Mr O'Keefe would have available to him a mental illness defence. He was suffering from a disease of the mind (Major Depression with psychotic symptoms) at the time of the homicide. His mental illness would have totally deprived him of the capacity to know that what he was doing was wrong, both in a moral and legal sense". 1. On 31 January 2014, by way of addendum, Dr Westmore confirmed that he had received further material from the solicitor for the accused, but none of it caused him to alter his opinion. 2. Dr Nielssen saw the accused at the request of his solicitors on 31 October 2013, and again on 23 January 2014. He was provided with a large amount of material. He obtained a history from the accused that was broadly consistent with the evidence that I have summarised earlier in this judgment. Dr Nielssen engaged in a detailed document review that was very similar to that engaged in by Dr Westmore, and which does not require further elaboration by me. 3. Dr Nielssen diagnosed the accused as suffering from a "major depressive illness with psychotic features". That diagnosis had a number of bases, including but not limited to "perceptual disturbances and mood congruent delusional beliefs", and "the history of a typical pattern of treatment for the disorder, including for a previous similar episode". 4. As for the defence of mental illness, Dr Nielssen expressed the following opinion: "Mr O'Keefe was thought to have the defence of mental illness open to him, as at the time of the offence he was affected by a severe form of depressive illness with psychotic features, which is a mental illness that provides a pattern of abnormality of mind that is recognised in law to be a disease of the mind. At the time of the offence itself he was affected by a defect of reason, in the form of the delusional belief that the house was unsound and that a baby had drowned in the pool. He reported being in a confused state at the time of the offence itself and may have experienced hallucinations he took to have come from Ms Dowell, urging him to hit her. As a result of his acute mental illness, I believe that at the time of the offence he was unable to reason with sense or composure about the moral wrongfulness of his actions". 1. Dr Westmore provided a further report of 16 June 2014. It records the receipt of more material above and beyond that which was available to the psychiatrist previously. Dr Westmore placed emphasis upon the bizarre contents of the Guard Duty Log. He also referred to material that suggested that, at the time of the episode in 2007, the accused believed that "supermarket chains" meant to do him harm, and that he possessed "special powers and increased levels of energy". None of the new material caused Dr Westmore to alter his opinion. 2. Finally, Dr Adams saw the accused on behalf of the Crown on 10 September and 26 September 2014. Again, he obtained a history broadly consistent with that obtained by the other two psychiatrists, and consistent with the evidence that I have summarised above. The accused raised the possibility that his father had suffered from depression. 3. The accused confirmed to Dr Adams that he had formed the belief that a baby had drowned in the backyard pool of the home at Lake Haven. He also explained that he had no evidence for that belief, but "just decided, it just hit me". He also described an odd phenomenon whilst living on the Central Coast whereby he felt that wind commenced blowing through trees as a result of him opening a car door. At the time, he had brooded about it, and had felt it possible that God was interfering with his situation. 4. In describing the stabbing itself, the accused said "thinking back on it it's like I was in a trance" and "I can remember looking down and seeing my arm going like that [that is, moving to his side]". The accused described "watching it happen". He recounted that he at first believed that the deceased had said to him "hit me", but by the time of the consultation had come to regard that as an "overbearing thought". Once the deceased was on the ground, he described experiencing a "wave of paranoia". He confirmed that he himself lay on the floor "like I was dying on the cross". 5. In the consultations that took place with Dr Adams in September 2014, the accused said things that amply demonstrated that he had come to appreciate the enormity and wrongfulness of what he had done. Of course, by that stage one is well entitled to infer that he had been appropriately medicated for almost a year. 6. Dr Adams engaged in a thorough review of the documents that is reflective of my own summary earlier in this judgment. 7. Dr Adams expressed the opinion that as at 16 October 2013, the accused was suffering from "a major depressive illness with psychotic symptoms prior to and at the material time of the offence". Dr Adams expressed the understanding that such a condition is commonly accepted as being a "disease of the mind". 8. Dr Adams regarded the incomplete amnesia on the part of the accused with regard to the alleged offence as psychiatrically plausible. 9. Dr Adams considered that, at the relevant time, the accused was suffering from an "impaired capacity for rational thought". 10. Finally, Dr Adams expressed the opinion that "it is reasonable to conclude that the accused would not have been able to reason about the wrongfulness of engaging in the alleged offence with a moderate degree of composure". As well as that, Dr Adams considered it possible that the accused was not fully aware of the nature and quality of his alleged acts. Having said that, Dr Adams immediately noted the things said by the accused in the 000 phone call, which were to opposite effect. The offence of murder 1. In ordinary circumstances, in order for a verdict of guilty of murder to be properly returned in this Court, the Crown must persuade the tribunal of fact beyond reasonable doubt that the accused voluntarily did an act within the state of New South Wales that caused the death of the deceased and, at the time of the commission of that act, the accused possessed one of three states of mind, or the doctrine of constructive murder applied. 2. However, when the defence of mental illness is relied upon by an accused person, the authorities establish that special rules apply. In particular, the elements that the Crown must prove in the first instance are more circumscribed: see Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517; R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 at [32]. In those circumstances, the Crown must prove merely that the accused voluntarily did an act that caused the death of the deceased. And in determining whether a voluntary act has been established beyond reasonable doubt, the tribunal of fact is to disregard any evidence of mental abnormality that could found the affirmative defence: see Hawkins v The Queen at 510, 512-13, 517; R v Minani at [32]. It is only if that affirmative defence fails to be established that proof of the mental elements of murder need to be considered. 3. In this case, on the evidence placed before me, and bearing in mind the joint position of the parties, I am satisfied beyond reasonable doubt that the accused did an act that caused the death of the deceased; namely, stabbing her repeatedly. The evidence is overwhelmingly to that effect, and is, to my mind, incontrovertible. 4. As for the question of whether or not that was a voluntary act, I have already noted the things said by the accused to Dr Adams that were suggestive that perhaps his actions were not voluntary in the sense that the law understands that concept: see Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205. But I repeat that that question needs to be determined without reference to any evidence of mental abnormality. Because I consider that the symptoms described by the accused to Dr Adams fall into that category, I put them to one side. Having done so, I am satisfied beyond reasonable doubt that the Crown has established that the acts of the accused in bashing and repeatedly stabbing the deceased were willed movements of his muscles. Again, defence counsel did not seek to persuade me to the contrary. 5. In short, I am satisfied that, in the circumstances of this case, the necessary elements of murder have been established by the Crown beyond reasonable doubt. The defence of mental illness 1. I turn to consider the affirmative defence of mental illness. In doing so I remind myself of the contents of s 37 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), which calls upon me as the tribunal of fact to reflect upon the consequences of a special verdict of not guilty on the ground of mental illness. 2. Although referred to in s 38 of the Act, the defence is a creature of common law and not statute. Its elements were set out well over 150 years ago in McNaghten's Case (1843) 8 ER 718 at [722]. The defence is established if it is more probable than not that: "at the time of the committing of the act, the party 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 what he was doing was wrong." 1. In The King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J (as his Honour then was) elaborated upon the latter portion of that test. In summing up to a jury, his Honour said: "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". Since then, criminal courts on countless occasions have accepted that that passage is a correct explanation of the latter part of the defence of mental illness. 1. It can be seen therefore that, in order for the defence to be made out, the accused must prove on the balance of probabilities that, at the time of the act causing death, he was suffering from a disease of the mind which led to a defect of reason, and that that defect of reason led him to fail to appreciate the nature and quality of his act, or to fail to appreciate the wrongfulness of his act, not only in a theoretical or legal sense, but also in a deeper, moral sense. 2. Turning to the question of whether the accused was suffering from a disease of the mind at the time of his acts, I accept the unanimous psychiatric evidence that the accused was suffering from a major depressive illness with psychotic symptoms. To be clear, it is not merely a matter of accepting that the accused was down, or sad, or unhappy with his new home. The expert opinion of the psychiatrists and the surrounding circumstances established by the other evidence go far beyond that. To my mind, as part of his severe depression, the accused had become divorced from reality. To repeat: the accused had come to believe, thoroughly irrationally, that a young child had drowned in the pool of his home. At the time of his fatal actions, the accused had come to believe that the deceased could harm him. And in the days after the death of the deceased when the accused was detained in a hospital, and detailed notes were being made by police officers of what he was saying, he said a number of things that amply demonstrate that he had become separated from the real world. 3. In short, I consider that the first leg of the affirmative defence has been made out. 4. As for the second leg; namely, whether the accused was suffering from a defect of reason, founded upon the evidence that I have summarised above, and again upon the unanimous decision of three psychiatrists (one of whom was qualified on behalf the Crown) I am amply satisfied that the accused's thoughts were irrational, and his beliefs were not founded in reality. I am satisfied that that state of affairs constituted a defect of reason. 5. As for the first part of the third leg, I am not satisfied that, at the time he attacked the deceased, the accused did not understand the nature and quality of his act. To the contrary, I believe that the accused well understood, in an objective sense, the nature and quality of what he was doing – that is, attacking the deceased and seriously wounding her – and, immediately afterwards, what he had done. That understanding, after all, informed his decision to try to kill himself. As well as that, it is quite clear from the transcript of the Triple 0 call that he well understood the nature and quality of his attack on the deceased. In that respect, I accept the opinion of Dr Westmore and Dr Nielssen that implicitly rejects that leg of the defence. To the extent that the opinion of Dr Adams raises it is a possibility, so much may be accepted; however, I do not consider that it has been established on the balance of probabilities. 6. The final question is whether the accused has established that, at the time of his acts, the defect of reason from which he was suffering led him to fail to appreciate the wrongfulness of his actions. Again, all three psychiatrists were unanimous in the opinion that the accused did fail to possess that appreciation. 7. I give those opinions great weight. But there are other aspects of the evidence, not founded upon expert opinion, that support the proposition as well. It is to be recalled that the accused is a man who has not demonstrated violent conduct, or even an aggressive disposition, in the past. And yet it is clear that the deceased was severely wounded multiple times. It is also the case that there was no motive whatsoever for the accused to inflict fatal violence upon the deceased. To the contrary, it seems that she was prepared to tolerate his mental and emotional difficulties, and indeed to do her best to care for him and help him. Whatever other things were going wrong in the life of the accused, his relationship with the deceased was not one of them. The evidence from all sources, including people who were much closer to the deceased than they were to the accused, is that they were a happy, loving couple. 8. I consider that the commission of these acts inherently demonstrates, to a degree at least, that the accused at the time was incapable of appreciating the wrongfulness of what he was doing, and indeed did not do so. I repeat that, to my mind, the severity of the attack, its irrationality, and the lack of any motive for it, support the proposition that the person who inflicted it did not appreciate its profound wrongfulness. 9. I have not overlooked what the accused said to the police officer at hospital; namely that "Of course" it is wrong to stab someone. That speaks against the establishment of this leg of the defence. But it needs to be recalled that that was quite some time after the fatal acts, and at a time when the accused was in a hospital and being treated. One also needs to consider the depth of moral understanding that stood behind that curt, almost dismissive, statement. I regard that statement by the accused as significant but not determinative of the question. 10. Speaking more generally about the psychiatric evidence, I have not failed to consider the question of whether or not the accused could have been feigning his symptoms, and lying to the psychiatrists, in order to obtain some sort of advantage, having been charged with murder. After all, the accused is a mature man who has not suffered from a chronic mental illness such as schizophrenia. He had been able to hold down a responsible job, and to enjoy satisfactory intimate and family relationships. As well as that, the time taken by the accused between the attack and calling Triple 0 gives one pause for thought. Those factors have led me to reflect carefully on the question. Having done so, I have satisfied myself that the accused has not been dishonest about his mental state. That is based upon the following aspects of the evidence. 11. First, it is clear that the accused suffered a serious psychotic illness in 2007. That is soundly established by evidence from doctors and laypersons. 12. Secondly, it is clear that, between 2007 and 2013, the accused continued to suffer from mental and emotional difficulties. So much is amply documented in the evidence before me from objective sources. 13. Thirdly, many persons saw the deterioration in the mental (and indeed physical) state of the accused in the weeks leading up to the death of the deceased. Some of those people were closer to the deceased than they were to the accused, and therefore have no motive to give evidence that tends in his favour. 14. Fourthly, none of the highly experienced forensic psychiatrists who saw the accused and expressed expert opinions in this matter came to the view that the accused was feigning his symptoms, or even expressed a note of caution about it. Nor did any of the psychiatrists who saw the accused after he was hospitalised and subsequently incarcerated. 15. Fifthly, there has been very substantial consistency in the histories that the accused has given to a large number of medical experts. 16. Sixthly and finally, the truth is that the disposition of the accused if the special verdict of not guilty on the ground of mental illness is returned – that is, mandatory indefinite detention – is hardly advantageous to an accused person, even one charged with the most serious offence known to law. 17. In short, having considered the question, I accept the truthfulness of the histories that the accused has given, and the symptoms that he has described. 18. Finally, it is true that, as the tribunal of fact, I am not compelled to accept expert evidence, even unanimous evidence from eminent experts in their field, and tendered by opposing parties. But having said that, I should be very slow to reject such evidence unless I have a sound reason for doing so. To my mind, not only are the reports that were placed before me cogent and persuasive, they are also soundly consistent with all of the surrounding circumstances established by the evidence. 19. I am satisfied of the second aspect of the third leg of the defence; namely, that at the time the accused committed the fatal acts, he did not appreciate the moral wrongfulness of what he was doing. Indeed, I am satisfied on the balance of probabilities that he was incapable of considering the question "with a moderate degree of sense and composure". 20. In short, I am satisfied beyond reasonable doubt that the Crown has proven the necessary elements of murder in the circumstances of this case. But I am also satisfied on the balance of probabilities that the accused has made out the defence of mental illness. It follows that I accept the joint submission of the parties that the appropriate verdict is "not guilty on the ground of mental illness". Explanation of meaning and effect of verdict 1. There are three aspects of that verdict that I wish to emphasise for the understanding of the community generally, and in particular for those who loved the deceased. 2. First, although the accused will not be held criminally responsible for the death of the deceased due to his mental state in the early hours of 16 October 2013, there is no question but that his acts directly caused her death. 3. Secondly, that verdict does not lessen this tragedy for a moment, and the enormity of the taking of the life of a fellow human being, Jennifer Lynne Dowell. 4. Thirdly, nor should that verdict be taken as lessening the recognition by the criminal justice system of the pain that the loss of the deceased has caused. I extend my condolences to all of those who have suffered, and will do so long into the future, as a result of the events of 16 October 2013. 5. Fourthly, although s 39(1) of the Act permits the immediate release in limited circumstances of persons found not guilty on the ground of mental illness, there is not the slightest question of that being appropriate in the case of this frenzied and fatal attack. To the contrary, the effect of my verdict will be that the accused will be committed to the long-term care of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, that Tribunal must not release the accused into the community unless and until it is satisfied that the accused will not seriously endanger any person, including himself. Orders 1. On the count of murder, I return a special verdict that the accused, Bruce Francis O'Keefe, is not guilty on the ground of mental illness. 2. The accused is to be detained at the Hamden Unit of the Metropolitan Remand and Reception Centre at Silverwater, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 3. The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court. 4. The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court, and to provide that Tribunal with the following documentation: 1. A copy of these reasons for verdict and orders; 2. A transcript of these proceedings, including of the mentions of 3 February 2015 and 11 February 2015; and 3. A copy of each of the exhibits tendered at trial. ********** 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: 20 February 2015