Supreme Court New South Wales Medium Neutral Citation: R v Clements [2016] NSWSC 1021 Hearing dates: 18 July 2016 Date of orders: 18 July 2016 Decision date: 18 July 2016 Jurisdiction: Common Law Before: Mathews AJ Decision: I find the accused David John Clements not guilty on the ground of mental illness in relation to the count on the indictment namely, that on 26 May 2015 at Springvale in the State of New South Wales did murder Roger Henderson Clements Catchwords: Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Hawkins v the Queen (1994) 179 CLR 500 Newbury [2012] NSWSC 1361) R v McNaghten (1843) 8 ER 718 The King v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina David John Clements Representation: Counsel: Mr T Thorpe (Crown) Mr M King (Accused) Solicitors: Solicitor for Director of Public Prosecutions Legal Aid (NSW) File Number(s): 2015/156782 Publication restriction: No Judgment 1. MATHEWS AJ: On 18 July 2016 David John Clements was charged by way of indictment with one charge, namely that on 26 May 2015 he murdered Roger Henderson Clements. The accused (as I shall call him in these reasons) pleaded not guilty. His counsel, Mr King, indicated that he was pleading not guilty by reason of mental illness. 2. An order had previously been made, by consent, that the trial be conducted by judge alone. As often happens in these cases, the trial itself was extremely short. A number of documents were tendered by the Crown, all of them by consent. Indeed, they included two psychiatric reports obtained by the defence team. No oral evidence was given. 3. Both counsel were in agreement that the appropriate verdict in all the circumstances was the special verdict of not guilty by reason of mental illness. All relevant documents, including psychiatric reports, had previously been provided to me by counsel. Having read those documents I was firmly of the view that this was the only appropriate verdict in the circumstances. Accordingly, I formally entered a verdict that the accused was not guilty by reason of mental illness. I made a number of ancillary orders, all of them by consent. I said that I would deliver the reasons for my verdict at a later date. 4. These, then, are my reasons for finding the accused not guilty by reason of mental illness. Circumstances of the Killing 1. The deceased, Roger Clements, was the natural father of the accused. He, the deceased and his wife June, had four children, of which the accused was the third. The accused was born on 4 March 1966 and was thus 49 years old at the relevant time. 2. The deceased and his wife lived at Springdale, via Wagga Wagga. On the morning of Tuesday 26 May 2015, the accused visited their home and accompanied his father to a medical appointment, returning home later that morning. Shortly afterwards the deceased told his wife that he and the accused were going to cut some wood at the rear of their property. About 45 minutes later June Clements, the deceased's wife, went out to the rear of the property. There she saw the deceased lying on the ground with a pool of blood around him. She ran to seek the assistance of a neighbour who was a nurse. The neighbour commenced CPR on the deceased. Shortly afterwards the police and ambulance arrived, but the deceased was unable to be revived. He was declared dead at the scene. Next to the deceased's body was an axe which was later found to have the deceased's blood on it. There was no sign of the accused in the area. 3. Police enquiries indicated that the accused had probably taken a Countrylink train from Wagga Wagga to Sydney. Accordingly, police boarded the train at Cootamundra where they found the accused sitting in a rail carriage drinking a can of beer. The accused was arrested and transported to Cootamundra Police Station where he was charged with murder. The accused at one stage said that he would like the charge to be changed to manslaughter because, as he put it, "I was under duress from what he was doing to me at the time." 4. A subsequent post mortem examination revealed a complex cluster of blunt force injuries with lacerations, abrasions, contusions and underlying skull fractures to the back of the head. These were consistent with having been caused by a heavy instrument with a cutting edge, such as an axe. Background of the Accused 1. The following information is derived from the psychiatric reports tendered at the hearing, particularly the report of Professor David Greenberg dated 3 April 2016. 2. As already mentioned, the accused was 49 years old at the time of the killing. He was born in Edmonton, Canada, and attended school there for six years. When he was 13 his family moved to Australia where he continued his schooling, finishing in Year 12 with an ATAR score of 60. By that time the family was living in Wagga Wagga. He reported having a good relationship with his mother, who is a retired primary school teacher. His father was a school principal and teacher, who later became an academic at Charles Sturt University in Wagga Wagga. He was retired by the time of his death. The accused said that he initially had a good relationship with his father, but he told Professor Greenberg that his father had been "emotionally punishing" him over recent years. 3. After leaving school the accused moved to Canberra where he worked as a mail clerk for a year. This was the longest period he has ever been in employment. He studied music at the Canberra School of Music for a while, and also at the Sydney Conservatorium of Music, but he dropped out of both courses. After an itinerant lifestyle in the 1980s and 1990s he ended up moving back to Wagga Wagga. In 2001 he was diagnosed as suffering from schizophrenia. He has been on a disability support pension ever since. 4. As to the accused's prior relationships, there is a conflict between what he told the two psychiatrists. He told Dr Chew that he had had no significant relationships, but he told Professor Greenberg that he had a girlfriend for a period of nine years. She suicided by throwing herself off a balcony at Wagga Wagga Base Hospital. 5. I now turn to discuss the issues to be determined in the present situation. Issues to be Determined 1. The accused having been charged with murder, it goes without saying that the Crown must prove beyond reasonable doubt the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first instance, are significantly reduced. 2. The Crown must prove in all cases that it was a voluntary or intentional act of the accused which caused the death of the deceased. A "voluntary or intentional act" is to be contrasted with an involuntary or accidental one. In determining this matter, the Court is to put to one side the evidence as to the underlying mental condition of the accused. If this first matter is proved beyond reasonable doubt the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the relevant time. However when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen (1994) 179 CLR 500. In that event, the next matter for consideration is whether the elements of that defence have been established by the accused on the balance of probabilities. If so, there is no need to consider the accused's intention at the time (see also R v Newbury [2012] NSWSC 1361). The accused is to be found not guilty on the ground of mental illness. It is only if the defence is not made out that the Court needs to return to consider whether the Crown has proved that the accused had the requisite intention for murder. 3. In the present case, there can be no doubt that it was the accused who inflicted the fatal injuries on the deceased. Nor can there be any doubt that his actions in this regard were voluntary and intentional ones in the relevant sense. Indeed, no one has sought to suggest to the contrary. Accordingly, the next significant matter for consideration relates to the accused's mental state at the time of the killing, and particularly whether the defence of mental illness has been made out, thereby leading to the special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). The Defence of Mental Illness 1. There is no statutory definition of the defence of mental illness. It has long been established that, once the defence has been raised, it is to be resolved in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 ("the McNaghten Rules"). Under these rules the accused must prove, on the balance of probabilities, that at the time of inflicting the fatal injuries he was labouring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his actions; or, if he did know it, that he did not know that what he was doing was wrong. 2. As to this last requirement, that the accused not know that what he was doing was wrong, it is now firmly established that this does not relate to his understanding of the illegality of his actions, but rather to his appreciation, in a deep or moral sense, of the wrongfulness of his conduct. As Dixon J (as he then was) said in The King v Porter (1933) 55 CLR 182: "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." 1. At this point I turn to discuss the psychiatric evidence given at the trial. The Psychiatric Evidence 1. The accused has been assessed by two forensic psychiatrists for the purpose of these proceedings: Professor David Greenberg at the request of the Crown, and Dr Gerald Chew at the request of the defence. Both had provided written reports which were tendered by the Crown at the hearing. I shall briefly describe the reports and conclusions of each of them. 2. Professor Greenberg had interviewed the accused at the Metropolitan Remand Centre at the Silverwater Complex on 23 March 2016. He had also been provided with a great deal of documentation about the accused's medical history and the circumstances of the current offence. He wrote a lengthy report on 3 April 2016. In it, amongst other things, he detailed the accused's numerous hospital admissions arising from mental health issues. The first of these was in 1992 when the accused was 26 years old. Between 2001 and 2010 the accused was admitted to mental health units on no fewer than ten occasions. Professor Greenberg considered that the accused had a disease of the mind at the time of the killing, namely a relapse of his chronic schizophrenia, as a result of which he was experiencing auditory hallucinations and delusional beliefs about his father. This followed a 24 year history of impairment from his chronic paranoid schizophrenic disorder. The evening before the offence he told his mother to "tell his father to get out of his head." His father, he claimed, was emotionally abusing him "from the other side." The professor considered that the accused was therefore labouring under a defect of reason caused by his disease of the mind. He probably did know the nature and quality of his actions at the time of the killing, and that what he did was legally wrong. However the professor expressed the view that the accused lacked the capacity for rational thought due to his mental disease, and believed that he was acting in a morally justified manner. Accordingly the accused did not understand the moral wrongfulness of his actions at the time. 3. The professor was therefore of the opinion that,- on balance, the accused probably had the defence of mental illness available to him. 4. Dr Gerald Chew wrote two reports, dated respectively 4 January and 23 April 2016. These followed interviews with the accused on 3 January and 22 April 2016. He also had been provided with extensive written material about the accused's history and the circumstances of the killing. In his first report the doctor addressed the various issues raised by the defence of mental illness. He considered that the accused had a clear diagnosis of chronic schizophrenia. This was treatment resistant, as the accused had showed ongoing symptoms over the years despite treatment with a number of different antipsychotics. He considered that at the time of the killing the accused was suffering from a disease of the mind, namely schizophrenia, and that he was acutely psychotic, harbouring a delusional belief that his father was torturing him on the "other side", namely in the spirit world. This delusional system constituted a defect of reason which was caused by his disease of the mind. While Dr Chew thought that the accused probably knew the nature and quality of his actions at the time, and understood that they were legally wrong, he felt morally justified in order to escape the torture being inflicted upon him by his father. 5. In this report Dr Chew did not directly address the question of whether the accused qualified for the defence of mental illness. However it is clear from the above summary of his findings that he considered that the accused met each of the McNaghten criteria. 6. Dr Chew's second report, dated 23 April 2016, addressed only the issue of the accused's fitness to stand trial. It must be assumed therefore that there was nothing in the accused's presentation on that occasion to cause the doctor to reconsider his earlier findings as to the defence of mental illness. Conclusion 1. The whole of the psychiatric material therefore pointed in one direction only, namely that when the accused fatally injured the deceased he was suffering from a mental illness as defined in the McNaghten Rules. It was for this reason that I entered the special verdict that the accused is not guilty by reason of mental illness. The other orders were consequential upon that verdict. ********** 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: 25 July 2016