R v Aller [2015] NSWSC 178

Supreme Court New South Wales

Medium Neutral Citation: R v Aller [2015] NSWSC 178 Hearing dates: 01.12.14 – 04.12.14 Date of orders: 24 February 2015 Decision date: 24 February 2015 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: On the limited evidence available the accused person committed an offence available as an alternative to the offence charged. The accused is found not guilty of murder but guilty of manslaughter. Catchwords: CRIMINAL LAW – special hearing – murder – issue of substantial impairment Legislation Cited: Crimes Act 1900 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Potts v R [2012] NSWCCA 229, 227 A Crim R 217 Category: Principal judgment Parties: Regina (Crown) Michael John Aller (accused) Representation: Counsel: Mr K McKay (Crown) Mr C Bruce SC (accused)

Solicitors: S Kavanagh – Solicitor for Public Prosecutions (Crown) SE O'Connor – Legal Aid Commission (accused) File Number(s): 2012/240127

REASONS FOR VERDICT 1. The accused, Michael John Aller, was committed to this court for trial upon a charge that he murdered Amy Aiton at Narara on 31 July 2012. Because of mental illness he is unfit to stand his trial. A special hearing, pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990, has been conducted before me, sitting without a jury. My task is to determine whether, on the limited evidence available, it has been proved beyond reasonable doubt that he committed the offence charged or, alternatively, the offence of manslaughter. 2. About 2 months before Ms Aiton met her death, she and the accused commenced an intimate relationship and he moved into her townhouse in Narara, near Gosford. It is not in dispute that in the afternoon of 31 July 2012 he killed her by stabbing her repeatedly with a kitchen knife during an argument. He placed the bloodstained knife into a knife block in the kitchen, changed his clothes, and drove to Gosford in Ms Aiton's car. He travelled by train to Sydney, where he spent the night drinking at a hotel in the CBD. 3. At about 9.45am on 1 August, he rang his mother, who lived in Orange, on a payphone and asked her to call the police and direct them to the townhouse as he had "just stabbed Amy to death." His mother did so. Towards the middle of the day he made another call to his mother's home, which was answered by his step-brother. He repeated to his step-brother that he had killed Ms Aiton, asking whether he should give himself up. His step-brother said that he should. At about 2pm he approached a uniformed police officer at Central Railway Station, saying that he needed to speak with someone and that he was wanted for the murder of his girlfriend. He was arrested and conveyed to Surry Hills Police Station. 4. At about 10am the same day police attended Ms Aiton's townhouse, where they found her lying on her bed facedown, covered with a blanket. They located the bloodstained knife in the knife block and saw a jumper and a pair of jeans, both bloodstained, which the accused had been wearing the previous day. 5. Post-mortem examination of Ms Aiton's body disclosed numerous stab wounds, mainly to the upper left area of her chest and her upper back. There were numerous injuries to the heart and lungs. The pathologist who conducted the examination concluded that the attack was of a very violent nature, possibly occurring over several minutes, and that severe force would have been required to inflict some of the injuries, particularly where a number of ribs had been penetrated. Defence injuries were located on Ms Aiton's arms and hands, leading the pathologist to conclude that she was conscious during the attack and had tried to defend herself. 6. It is also not in dispute that the accused stabbed Ms Aiton with the intent at least of causing her really serious bodily injury. On the material before me I am, in any event, satisfied beyond reasonable doubt that he stabbed Ms Aiton with that intent, causing her death. Accordingly, the elements of the crime of murder are established. The only issue I must determine is whether he has established the partial defence of substantial impairment, pursuant to s 23A of the Crimes Act 1900, so as to characterise the killing as manslaughter rather than murder. 7. On that issue I received psychiatric evidence in the Crown case and the defence case. The other evidence in the Crown case, which is undisputed, was presented in documentary form. It is helpfully summarised in the Crown case statement, which was read onto the record as the Crown prosecutor's opening address. The hearing focused upon the accused's account to police in a lengthy recorded interview, together with the psychiatric evidence. 8. I received in evidence reports of two respected forensic psychiatrists, Dr Richard Furst and Dr Olav Nielssen. Dr Furst, engaged by the accused's legal representatives, interviewed him on six occasions, for forensic purposes and also in his capacity as a consultant psychiatrist with Justice Health. His forensic task was to assess him for considering the defences of mental illness and substantial impairment, and his fitness to stand trial. He provided two reports relevant to the issue at hand, the first of 30 October 2012 (exhibit 1) and the second of 15 June 2013 (exhibit 2). 9. Dr Nielssen, engaged by the Crown, saw the accused twice, in April and again in August 2013. He prepared a report of 4 September 2013 (exhibit C). Both experts gave oral evidence. 10. It is necessary to sketch relevant aspects of the accused's background, disclosed in the reports and, to a limited extent, in the recorded interview. He was 46 years old at the time of the killing of Ms Aiton, and is now 48. He described a disturbed upbringing. He was an only child. His father was a violent man, given to alcohol abuse. His parents divorced when he was 11 and he never saw his father again. His mother formed a relationship with a man who had a daughter and son of his own. His step-father was violent towards him and towards his mother. 11. He had a relationship with a woman for a period of 13 years, for the last 8 of which they were married. The marriage broke down in 2008. It seems that he was violent towards his wife during that relationship. He was controlling and threatened to kill her if she tried to leave him. He subsequently formed a relationship with another woman, who described him as jealous and threatening. In the recorded interview he admitted having assaulted her on an occasion in 2011. I should note that Dr Furst's first report refers briefly to statements by both those women. However, the tender of their statements was objected to and was not pressed. 12. Important for present purposes is his long history of alcohol dependence. He had been a heavy drinker since his mid-teens. He drank mainly spirits, but also beer. He told Dr Furst that throughout his twenties, thirties and forties his daily consumption was either a case of beer or a bottle or more of bourbon whiskey. He experienced episodes of delirium tremens, with confusion and hallucinations. He had an early history of the abuse of cannabis and amphetamine, but abandoned those drugs in his twenties. His drinking was sometimes associated with violence. He acknowledged as much in the recorded interview (Q 461 ff), as he did his drinking problem generally. He said, "I just can't stop when I start, and I black out." He added that he normally drank Jim Beam and coke. As well as affecting his relationships, his drinking also compromised his employment. 13. Over the years, his abuse of alcohol led on occasions to admissions to hospital and to rehabilitation programs. The two psychiatrists had access to records of his admission to hospital in the Orange area in 2008, following the breakdown of his marriage. He described feelings of distress at the end of the relationship, symptoms of amotivation, increased drinking, suicidal thoughts and thoughts of harming his wife and a person described as his ex-girlfriend. (Who that person was is not clear). He was diagnosed with an adjustment disorder with depressed mood, alcohol abuse and dependent personality traits. He was prescribed anti-depressant medication. He was re-admitted a month later after allegedly throwing a brick through his ex-wife's house, in breach of an AVO. He had been acting in a threatening manner prior to that incident, mainly when intoxicated, and had ceased using his medication. There were no indications of psychosis and he was referred to a rehabilitation centre. 14. In 2011 he was admitted to hospital in the Hunter area. He described feeling "betrayed" by the woman with whom he had formed the later relationship, who had taken out an AVO against him. He appeared to be thought disordered, describing auditory hallucinations and persecutory delusions, symptoms which Dr Furst considered to be consistent with his being depressed and psychotic at that time. Diagnoses of schizophrenia and alcoholic hallucinosis, but also of malingering, were considered but apparently not confirmed. Again he was discharged with the diagnosis of adjustment disorder with depressed mood and alcohol dependence, and prescribed anti-depressant medication. 15. In October 2011, he was admitted to the Miracle Haven Rehabilitation Centre at Morisset, where he remained until June 2012. He was depressed at the time, describing recent thoughts of harming himself and his then ex-partner when he was heavily intoxicated. While at the Centre he engaged in therapy, acknowledged being an alcoholic, sometimes struggled to concentrate, and expressed a lack of self-esteem. No hallucinations or other signs of a major mental illness were recorded. Yet again, he was prescribed anti-depressant medication. 16. It was shortly after he left Miracle Haven that he met Ms Aiton and commenced his relationship with her. She had suffered serious injuries in a car accident in 2004. She also suffered depression, and after her discharge from hospital she developed a serious dependence on cannabis.