Dr Stephen Allnutt
268Dr Allnutt prepared three reports which were, in large part, read to the jury. The first report was dated 26 July 2011 and was prepared following a clinical evaluation with the appellant on 23 June 2011. On that occasion Dr Allnutt took the following history regarding the offending (commencing at T362 L6):
"The alleged offence occurred on or about 18 December 2009. At that stage he was 45, living at home with his parents. He'd been living there for the prior 6 months. Before that he was living in Brisbane and had been there for 2 years. He got tired of sharing with people and thought he should come down to New South Wales. At the time he was on a disability support pension. He'd been on a disability support pension for about 5 to 6 years, secondary to a serious bike accident wherein he had suffered a fractured pelvis, wrist and ankle and subsequently had fused vertebra in his neck.
At the material time that the alleged offending occurred, he was not seeing a mental health worker, he had had no contact with a mental health worker and denied prior contact with a mental health worker. He was not taking medication and had no history of previously taking medication. He had taken painkillers in the past, but could not recall the name, but he was not taking any painkillers at the time of the alleged offence.
In the time leading up to the alleged offence he was utilising cannabis, half an ounce once a week for the prior 2 to 3 years. He was drinking Grappa in the morning; three to four shots; a 6-pack of beers, a 6-pack of bourbon; and a bottle of wine at night and had been doing this for about a year. He was suffering back pain, but otherwise was not suffering any major medical illnesses at the time.
In Brisbane he was unhappy with his housemates: They were not cleaning, they were damaging his property. He was not sure why they were doing this. He said they used to scrape the pots and pans and never cleaned up.
He came back from Brisbane in about July 2009 and lived with his parents. In August 2009 he had an argument with a person who took his credits and started playing his machine. This person then went and sat down with a group of bikies; he explained he had been in a bikie club between the age of 21 and 29. At age 27 he was bashed by a rival gang who threatened to harm him if they ever saw him again. At the time that this person took his credit, that is August 2009, he watched the person and he noticed this person sat with a group of bikies. He said he was always paranoid about bikies since his assault. He subsequently decided to leave.
After this incident he began to think that he was being followed. In September 2009 someone approached him in an RSL and told him someone, with many contacts was 'pissed of' with him and they were after him. He assumed it was the President of the bikies club. He said he was not sure ... now if this was a real meeting that he had had with this person who gave him this information or whether he dreamed it. In October 2009 he thought he met with the President. He now thought this was also a dream. He said the President told him that he was going to extort his parents, family and friends. He could not recall the time or the date or the venue where this occurred. He said the President told him he was going to kill him and his father if his father did not give them what they wanted. He said he was going to torture his mother if his father did not give them the money and the house.
...
He said the president also told him that he would save his mother if the accused killed his father and saved the rest of his family and friends if the accused killed himself. He believed that the president knew where everybody was. He believed that they were tapping his phone. He would hear noises on the phone when he answered the phone and so he believed that the president knew where everybody was - everyone was. He also believed that they were following him. He would see cars up in front of his house and his brother's place, he would hear bikies coming into the street. He said he was having conversations in his head. He said the president told him that he could save two families by giving them a purple flower.
In the time leading up to the alleged offence he was hearing voices of the president outside his head. The voices were saying that he had until Christmas and that Boris was coming after his family to make him pay for what ... he had done. He said he had previously almost caused a breakup in the marriage of Boris and other bikie gang members 15 years previously when he was 30.
He was unsure whether or not he was receiving any messages from the TV, radio or the newspaper. In the week prior to the alleged offence he gave his sister-in-law a purple flower. He was told to do this by Boris and that if he did this he would save two families.
Around the time he had started to carry a knife with him. He thought the bikies might kill him. Boris told him, if he went to the police, more people would die and would kill his family so he could not go to the police. He felt trapped; he saw no options for himself.
On the day prior to the alleged offence, he told his brother that people were after his family. He said he had spoken to his mum the week before; and his brother had inquired what was wrong. His brother wanted to know but he could not tell him because he was worried they would be killed if his brother knew.
The next morning he woke up feeling anxious and nervous. He wanted to speak to his father to tell him he had to give the bikies what they wanted. He did not know how to tell his father he was going to die, that the bikies were going to kill him. He decided he needed to tell his father, however, to save his mother and he intended to tell his father that the bikies were coming to the house and if he did not give them what they wanted they would kill him and torture his mother. This was about 1 week prior to Christmas and time was running out.
He went and spoke to his father; he told him people were going to come to the house demanding his mother. His father did not believe him. He showed his father the knife to prove he was serious. He told him it had to do with Boris and they were coming after the family.
...
He and his father started arguing. His father was blaming him. His
father thought he was organising the extortion. ... He told his father he had to give him what "they", the bikies, wanted. At this, his father hit him. He said he reacted. He lost his temper and knocked him out. He believed he had no choice. ... His father was not going to to listen and give the bikies anything. He thought his mother was going to die. He decided he had to kill his father to save his mother. He hit his father in the throat and suffocated him. At the time he was scared for his mother. He did not know what else to do. He had to kill his father to save his mother.
Afterwards he felt scared his mother might find the body, have a heart attack and a nervous breakdown. He put the body in the car and took it to the shopping centre. He left the car there. He thought the police might find the car. He did not want his father to be in the car for too long. He was hoping they would find him. He did not want to kill himself. At the time he thought bikies were coming after him and he needed to kill himself to save family and friends. He thought, if he came to gaol, the bikies would kill him in gaol.
He thought of an alibi. He walked back home. He went to the
neighbours and told them his car had broken down and he needed to use their phone. On the way to the neighbours he thought he was being followed. He knocked on the neighbour's door with the intention of making a phone call to his father to establish an alibi. He believed he had to get away. The bikies were coming after him.
...
As the neighbours let him into the house he noticed that there was a blue car he saw following him and turn into the street. He rushed into the house hoping that they did not see him. He was distressed at having just killed his father and was anxious. He went to the toilet and borrowed a phone. He felt nervous and scared. He was unsure what to say. He said the lady came up and grabbed him. He panicked and reacted. He hit her in the face. The lady and the girl started screaming. He thought the girl pushed him in the back. At that time he thought it was the people from the car who had come to kill him. ... He grabbed the knife, swung around and lashed out with the knife. He recalled he was slashing. At the time he thought he was slashing people from the car. He was scared for his life. The girl and the mother stopped screaming and he noticed there was blood and realised what he had done. He then ran out of the house and went to his sister-in-law to grab his wallet and things. He drove to a camping spot to hide from the police. He stated, 'I thought they'd put me in gaol and I was going to get killed.'"
269Dr Allnutt said (at T366 L41-L48) that the appellant's reference to driving to a spot to hide from police indicated an understanding on his part that what he had done could be considered by others as being wrong.
270Dr Allnutt's report continued (commencing at T366 L50):
"He was unable to sleep at night. All he could see were images of what he had done, they haunted him.
On the Saturday, he decided he was going to kill himself. He left the camping spot on the Saturday afternoon. He wrote a letter to the police. He stayed on the side of the highway. He did not sleep that night. He was nervous and anxious at having to kill himself.
He handed a note to the hospital in the morning, he gave it to a nurse at the front desk, a note saying how sorry he was. He went and got petrol, he came back to the hospital afterwards, he doused himself with petrol, he said a prayer and torched himself. He recalled being dragged out of the car by police. He was taken to hospital. He spent 3 months in the Burn Unit and then admitted to Long Bay Hospital for 1 month before coming to the MSPC. At the time he said, 'I was saving my mother' and he did not think that at the time that he attacked the other victims that they were the victims and he had no intention to kill them."
271Under the heading "Current Clinical Issues" Dr Allnutt reported in the following terms (commencing at T367 L26):
"At the time that I saw him, he was feeling better. He was not experiencing any voices. He had last heard a voice at the time of the alleged offence and for a brief period afterwards. He had last heard voices in hospital where he continued to think the bikies were after him. He denied any visions, tastes or smells. He now did not think bikies were after him and he saw it as having occurred in his dreams. He denied that he was receiving any messages from the TV, the radio or the newspaper. He had an anxious mood. His sleep was adequate on the Avanza. He had reasonable appetite, energy and motivation and good concentration. His self-esteem was poor and he was depressed about what he had done. He maintained an interest in reading. He found pleasure in some things. He denied suicidal ideation plan or intent. He was not experiencing any panic attacks. He had last used drugs the night before the alleged offence when he had used alcohol. On the night before the offence he had used cannabis to try to get to sleep. He had smoked a fair bit, he was not sure how much, he had done this to reduce his anxiety.
He had not suffered any new medical problems. The most significant stressor impacting on him was the Court case. He denied at the time that he saw me he was experiencing irritability or short-temperedness. There had been no conflicts or aggression. He accepted that he had a mental illness, schizophrenia, and needed medication. He said he would continue to take the medication. He understood the risks of substances that had increased his anxiety and the voices and that he needed to avoid substances. With regard to the alleged offence, he said he was very sorry for what had happened. He had difficulty living with what he had done and he said he did not mean to harm the girl or the mother."
272Dr Allnutt noted (at T368 L22) that the only occasion on which the appellant had indicated an attempt to kill himself was on the day of his arrest when he set fire to himself and cut his wrist. The appellant also denied any knowledge of family history of mental illness.
273Dr Allnutt then conducted an examination of the appellant's mental status and reported (commencing at T370 L13):
"He presented as cooperative and fairly well-groomed; his speech was clear, coherent, soft and monotonous; his affect was restricted; he was clearly anxious during the interview and upset; he spoke in a clear and coherent manner; he maintained good eye contact; he did not manifest behaviour suggestive of either side effect psychiatric medication or neurological illness; he did not endorse any significant new or anxiety symptoms; and he denied any overt psychotic symptoms; he did not manifest significant intellectual impairment; his capacity for insight and judgment was adequate."
274Dr Allnutt then proceeded to express a number of opinions concerning the appellant. The first was an opinion in relation to psychiatric illness which was in the following terms (commencing at T370 L38):
"At the time that I saw the accused, he was not manifesting significant active symptoms of psychosis. He did, however, provide a history of cannabis for 2 to 3 years prior to the alleged offence as well as a relatively significant abuse of substances over a fairly lengthy period of time consistent with probable substance abuse disorder.
He lived a relatively unstable lifestyle, commuting between Sydney and Brisbane. In about August 2009, while playing pokies, he described developing a belief that bikies were in some way plotting to harm him and his family. He described and recalls being approached in September 2009 and October 2009 by members of this bikie group, in particular, the president named Boris, who said he was going to kill him and his father and torture his mother if his father did not give them what they wanted, namely money and the house.
He described these two meetings in interview with me as being a dream. He described subsequently becoming aware of people following him in the street and holding the belief that if he did not do what Boris had told him to do by Christmas, then his mother was going to suffer. There was evidence that he had disclosed these beliefs to a number of people in the time preceding the alleged offence and evidence to suggest that while he was a member of a bikie gang this had happened more than 15 years ago and that the gang had subsequently disbanded.
The symptoms described would be consistent with symptoms of a systematised persecutory delusional system probably due to paranoid schizophrenia. He derives from a relatively loving and supportive familial environment. He appears to have been relatively dependent on his parents for a number of years. He achieved sixth form at school and denied behaviour consistent with conduct disorder and was able to pursue gainful employment until he suffered a motor vehicle accident in about 1990, whereupon he was essentially on a disability support pension which likely aggravated his dependence on his parents. He has
been capable of interpersonal relationships but has not pursued a relationship for a fairly lengthy period of time. At this stage he does manifest, in my view, some evidence for dysfunctional personality traits. But I would not, at this stage, conclude a personality disorder.
He provides a history of substance abuse since age 18, including cannabis and speed which continued to date with periods of rehabilitation but no maintenance, but most predominantly alcohol, consistent with a likely alcohol dependence disorder. He was not manifesting any major medical problems when he saw me but I did not formally physical examine him. The most significant stressor impacting on him at the time that he saw me related to the current charges. His functioning appeared to be reasonable at the time that he saw me."
275Dr Allnutt then proceeded to express his opinion regarding the appellant's mental state at the time of the offending (commencing at T371 L42):
"He describes the onset of a belief that he was in some way being
persecuted by bikies in the context of witnessing certain interactions between individuals that occurred when he was playing pokies in August 2009.
He describes then having had an interaction with a person called Boris and members of a bikie gang in September and October 2009 which, in retrospect, he describes as a dream. He went on to describe developing a belief that his phone has been tapped, that cars were following him and that he was having conversations in his head. These symptoms would be consistent with a persecutionary delusional belief and, as such, there would be reasonable grounds to conclude that he was suffering from a psychosis and thus a disease of the mind at the material time that the alleged offending occurred.
It seems that in the context of his persecutory belief system he started carrying a knife.
...
He became increasingly anxious that if he went to police more
people would die and Boris would kill his family so he did not go to
the police and subsequently saw no options for himself feeling
trapped. He formed the view that people were coming for his family
and believed that time was running out for him and he needed to act
in order to protect his mother."
276Dr Allnutt then dealt with the death of the appellant's father and stated (commencing at T372 L31):
"He stated he went to see his father on the day of the alleged offence in an attempt to have his father comply with the bikies' demands. In the context of this he had an argument with his father. After hitting his father to the ground, he determined that the best
thing to do to save his mother would be to kill his father. Thereafter he took his father's body in the car to a shopping centre hoping it would be found and then further determined he would try and establish an alibi.
With regard to the behaviours leading to the death of his father, in
my opinion at the material time that the alleged offence occurred he was suffering a disease of the mind which was of a nature and severity that it severely impacted on his capacity to make rational decisions with regard to his father and was thus experiencing a defect of reason. With regard to the behaviours leading to the death
of his father, it is unlikely that the defect of reason was such that it significantly compromised his capacity to know the nature and quality of his actions."
277Dr Allnutt agreed (commencing T372 L50) that his opinion was that there was a defect of reason because the appellant was suffering a disease of the mind which severely impaired his capacity to make rational decisions regarding his father. He said (commencing at T373 L6) that despite holding that view, it was his opinion that the appellant nonetheless appreciated the nature and quality of the physical act in relation to the death of his father, in the sense that he had the capacity to understand that if he hit somebody or strangled them or stabbed them, that he could potentially seriously harm, if not kill, them.
278Dr Allnutt (commencing at T373 L20) went on to consider the question of whether, as a result of a defect of reasoning due to a disease of the mind, the appellant was capable of knowing that his actions in relation to his father were wrong. In this regard he reported (commencing at T373 L28):
"However, with regard to the death of his father, given that he incorporated his father and other members of his family, most
prominently his mother, into his delusional system, he would have
been compromised in his capacity to make rational decisions in relation to both of them. In addition to that, it appears that he had irrationally determined, due to his delusions of persecution, that he had no option but to kill his father in order to save his mother and
that given his circumstances, having regard to his delusional world, this was the better option, from his perspective, and in that sense the right thing to do.
In my opinion, under these circumstances he would have been
unable to reason about the matter of wrongfulness in relation to his
behaviour towards his father with a reasonable degree of sense of composure, and in regard to the behaviour leading to the death of his father is available as a defence of mental illness [sic]."
279Dr Allnutt was then asked (at T373 L45):
"Q. In that regard, in your opinion as to his suffering disease of the mind which results in a defect of reason, that is on the basis of what he has believed about bikies is all a delusion, it's not real, it's a delusion; is that right?
A. That's correct.
Q. So on the assumption that it is a delusion and was not real, then you come to the view he has a disease of mind; correct?
A. Yes."
280Dr Allnutt gave evidence (T374) that in his opinion not wanting to be arrested and put in gaol was consistent with an understanding on the part of the appellant that what he did was wrong. He also expressed the view that intending to create an alibi or divert attention from himself as being the perpetrator of his father's death was consistent with the appellant having such understanding.
281Dr Allnutt expressed the view that the appellant's defect of reasoning in respect of wrongfulness was that on the basis of his delusions, he felt that he was morally right to do what he did to his father because it would save his mother (such that because he was saving someone else, he believed that what he did was not wrong in his own mind).
282The evidence of Dr Allnutt then moved to the circumstances surrounding the death EW and the injury inflicted to VW. Dr Allnutt (commencing at T374 L36) set out the history that he had been given in this regard. Dr Allnutt was then asked (commencing at T375 L38):
"Q. You noted, however, that the evidence suggests the behaviour that led to the death of [EW] and the attack on [VW] was in some way impulsive or reactive to circumstances?
A. Yes.
Q. Did you come to an opinion that if it was accepted that when he entered the house he believed he had been followed and that at least a person had pushed him in the house, or he was pushed and he believed that person was from the car, then he has in some way incorporated those persons into his delusion, is that the situation?
A. Yes.
Q. And as part of that delusion, do you consider the issue of mental illness is a live issue then?
A. Yes.
Q. Would it be though in relation to considering that that he still knew the nature and quality of the physical act when he was attacking the two persons in the house?
A. Yes.
Q. But are you saying if he believed they became incorporated into the delusion by in some way being associated with those that were attacking him, then that would affect his ability to know or rationalise what he was doing was wrong?
A. Yes.
Q. Can your opinion vary if there is consideration of some other rational explanation to the way he acted, that is, an explanation of someone trying to divert attention from themselves or what he had done to his father?
A. Yes, there can be a rational explanation.
Q. And that can affect the opinion?
A. Yes.
Q. So again it depends on what facts are accepted or assumed for this purpose, is that right?
A. Yes.
Q. At least in relation to the death of [EW], depending on the facts assumed, did you then consider whether the defence of substantial impairment, or at least that part of it where his delusions, if he was suffering them, in any way affected his capacity to understand events or judge whether his actions were right or wrong or to control himself?
A. I put that as an option. I thought that it was a difficult determination to make because the facts weren't entirely clear as to what actually occurred at that time.
Q. In effect in your first report there was some issues because of concerns about the facts relating to the neighbours, is that correct? A. Yes, I think that was relatively less clear to me than the first series of events."
The second report of Dr Allnutt
283Dr Allnutt carried out a second evaluation of the appellant on 22 September 2011 and provided a report of 30 September 2011. On that occasion, the appellant had provided him with some further detail in relation to the relevant events which were set out by Dr Allnutt (by reading from the report) in the following terms (commencing at T377 L12):
"I undertook a further interview of the accused on 22 September
2011. The purpose of this was to further clarify his thought
processes around the material time of the killing of the second victim and the injuring of the third. He said that after killing his
father he put the body in the car; he was worried that his mother would have had a nervous breakdown if she found the body.
He went to Stocklands and parked the car. On the way there he was thinking that people were going to kill him in gaol. He parked
the car. He was thinking about an alibi. He decided he would make
a phone call to his father. At that point I asked him to explain how
this might provide him with an alibi. He said at that point he could
not explain but that was his thought at the time. He felt he had to get away.
At the shopping centre he thought the bikies were coming to kill him: that they had told him before that if he did not kill himself they would go after his family and friends. He believed that the bikies wanted him dead and they wanted his father dead.
He decided to go to the neighbours to ring his father. The neighbours were the first people who came into his head which is why he chose them. He had not really met them before. It was a
thought that came straight to his head. He walked to the neighbours. On the way he was trying to think about what to say. He decided he was going to say his car broke down and he needed to call his father. He thought by ringing his father this would establish a view that at the time he rang him, he did not know he was dead. There was nobody at his home who could witness him making the phone call so he went to the neighbours.
On the way to the neighbours he was anxious, nervous, agitated,
because he had just killed his father. He also thought he was being followed on the way to the neighbours. He saw cars driving slowly behind him. He said there was a blue car.
Arriving at the neighbours he knocked on the door. ... He told [VW] that he needed to use the phone to ring
his father. She opened the door and he thought he saw the same
blue car turning into their street. He panicked and rushed into the
house. His recollection was that he made a phone call. He said there was a mobile in his hand. She must have given him the mobile. He made a call and the phone just rang.
He thought he was either in the kitchen or the lounge with the
deceased or [VW]. He recalled the deceased sitting in the lounge watching TV. He had no particular thoughts about her at the time. He was standing in the kitchen or the lounge thinking about what to say to [VW].
...
He believed that she went to grab him but then added that it was
possible that she did not grab him but went to grab the phone. At
the time, however, he panicked and hit her in the face.
...
After he hit VW the thought came to his mind to tie
them up. He needed to get away. He was scared of getting caught
for his father's murder. He was thinking of tying them up and taking
money to get away. This was the first time that this thought came to his mind. He needed money to leave the city and get away from the bikies and the police.
...
He thought at this point he felt pushed from behind. At the time he
thought this was people in the car coming to kill him. The last time
he saw the girl - that's [EW] - she had been sitting on the lounge. He grabbed his knife and started slashing anything that
moved. He said at the time he was scared for his life. He denied at
the time that he was being aware that he was slashing the girl,
[EW], until the screaming stopped and he saw blood.
Until then he thought they were screaming because there was someone coming in the house, the people following him. He realised then what he had done.
He went back to his car and drove to his brother's place and grabbed things and then left for Karuah. This is a place outside Newcastle, he drove there. On the way he felt panicky and scared. He thought he did not mean to harm [E] and [VW]. He knew he had done wrong then but at the time of the killing and the assault of [E] and [VW] he thought he was protecting himself. He went to the camping spot and hid there for a day.
On the Saturday he drove back to Sydney. He felt sorry for having
killed the neighbour. He continued, however, to feel that he had no
choice but to kill his father and continued to feel justified in this. His killing his father had been able to keep his mother alive and he had no choice at the time and continued to feel justified in that regard.
At that time he did not continue to feel justified in having attacked
[E] and [VW]. He did not need to kill them, he said. He killed [EW] because he thought he was killing people who were following him. He bashed [VW] because she wanted to grab him or she grabbed him and he just panicked.
He went back to Sydney and went to Fairfield Hospital instead of the
police because he thought the police would stop him. He handed a
note in to say he was sorry and his friend Danny had nothing to do
with it. He went and got petrol. He came back to the hospital and
set himself alight. He felt he had to kill himself. He was hoping that
by killing himself he would save his family and friends. He was sorry he had killed people.
I put to him that he had told people that [EW] had ran
past him. He said that when he told people these things after the
offence, his recollection was that it was something that he had assumed."
284Dr Allnutt's opinion as to the appellant's mental state at the time of killing his father remained the same as it was at the time of his first report.
285Dr Allnutt's second report then turned to the circumstances surrounding the death of EW and the injury to VW as follows:
"Following the death of his father he decided to find a phone so he
could call his father's phone in order to set up an alibi. By calling his father's phone he could give the impression that he was unaware of his father's death. This led him to entering the home of the second set of victims.
He described on the way to the house believing that he was being
followed by people who were going to kill him and entering the
house believing that he saw them turning into a street in which [E] and [VW] lived, at that stage feeling panicked.
He describes that upon engaging with [VW], he was
scared and, having used a phone to make a phone call to his father, she gestured towards him that he interpreted as an attempt to grab him and he reacted to this and hit her in the face.
Soon after this he thought he felt someone hitting him in the back which he deduced were people from the car that were following him coming to harm him and potentially kill him and, in response to that, he reacted and slashed. At the material time that he did this, he was not aware that he was attacking [EW] but believed that he was protecting himself against people that he thought had come to harm him and that the screaming that he heard, he thought were the victims screaming about people coming to the house rather than him attacking someone.
The idea of staging some sort of robbery entered his mind after he
entered the victim's home. Thus the two motives for entering the
victim's home, to stage a robbery and to establish an alibi, seemed
to relate to a progression of his decision-making from the time that
he left the car.
After the incident he persisted in maintaining a strong sense of justification about killing his father but did not feel justified in his
attack on [E] and [VW]. This was because he had
not incorporated [EW] and [VW] generally into his delusional system as he had his father. However, at the material time that the alleged offending occurred he was in an aroused emotional state, felt trapped, fearful and panicked and
believed that others were intending to harm him."
286The above history was recorded by Dr Allnutt based on what he had been told by the appellant. Based on an assumption that such an account was correct, Dr Allnutt expressed the following opinion regarding the appellant's mental state at the time of the death of EW:
"In relation to [EW], when he felt pushed from behind he
temporarily believed that [EW] was someone, or people,
coming to kill him; that he reacted in a violent manner believing
himself to be justified in acting in that manner at the time as a
consequence of his delusional belief that he was being attacked by
others and, on this basis in relation to the death of [EW], I believe, on balance, he would be regarded as having available to him a defence of mental illness."
287Dr Allnutt went on to explain (commencing at T381 L50) that EW had become part of the appellant's delusion. She was perceived by him as somebody who was attacking him and as a consequence of his delusional beliefs, the appellant misconceived what was occurring between the two of them and reacted to those events impulsively, potentially acting in self defence. In this sense the appellant had, according to Dr Allnutt, temporarily and erroneously incorporated EW into his delusional thinking and had made decisions based on that interpretation (at T382 L10-12). Dr Allnutt explained that his use of the term "temporarily" in that context arose from the fact that even on the appellant's own account, he understood that these persons were not in any way associated with this thinking.
288Dr Allnutt then moved (commencing at T382 L26) to express an opinion regarding the appellant's mental state at the time of the injury inflicted to VW:
"In relation to [VW], while it does not appear he misperceived her as he had [EW], that is somebody out
to kill him, he appears he reacted to a gesture towards him without thought. He was prone to react without thought, that is impulsively, as a consequence of his delusional experiences derived from his disease in the mind and defective reasoning.
On balance, I believe it would be reasonable to conclude that, on
balance, he has a defence of mental illness in relation to this charge because his disease of the mind caused him to be unable to reason about the matter of the wrongfulness in attacking [EW] [sic] with a reasonable degree of sense and composure as a person with a rational mind would.
Thus, on balance, I believe he would have available to him a
defence of mental illness in relation to the offences related to all
three victims."
289Dr Allnutt again explained that this opinion was based upon an acceptance of the appellant's account to him, and the symptomatology that he described. He explained (commencing at T383 L4) that there was a "question" as to whether the appellant met the test for a mental illness, in the sense that he would probably have had the capacity to think about things. However, Dr Allnutt went on to explain that the appellant was so pre-occupied by his delusional experience that he never applied that thought. He concluded (at T383 L7) that whilst it was "marginal", the appellant "probably would have available to him a defence of mental illness".
290Dr Allnutt explained (at T383 L22) that at the time of his second report he remained of the view that the appellant appreciated the nature and quality of his physical acts committed on E and VW. He explained (at T383 L31) that it was the second part of the test, namely whether he knew that those acts were wrong, which was the predominant issue.
The third report of Dr Allnutt
291Dr Allnutt was asked to provide a third report and, in doing so, to consider a scenario which was in some respects different to that which had been provided to him by the appellant. In particular, he was asked to assume the following (commencing at T383 L41):
(i)that the appellant attended a neighbour's house to divert suspicion from himself in relation to the death of his father;
(ii)that he did so by trying to make it appear that there had been a home invasion;
(iii)that included in his thinking at that time was to obtain money so that he could leave the area and not be arrested by the authorities in respect of what had happened to his father;
(iv)that the attack on E and VW was consistent with that intention;
(v)that he took steps after the attack to disturb things in the house to make it appear like a home invasion had taken place;
(vi)that the attacks on E and VW were more than momentary "slashing type" attacks;
(vii)that it was open to reject the appellant's assertion that he believed that he had been followed to the house by persons who had made threats previously; and
(viii)that it was open to reject that he mistook EW for an attacker or someone out to harm or kill him.
292Based on these matters, Dr Allnutt expressed the following opinion (commencing at T384 L46):
"You've asked me to consider another scenario. If it is accepted
that at the time of the alleged offence involving his father he was
suffering from symptoms of psychosis in the form of a delusional
belief that he and/or his family were under threat, then it would be reasonable to conclude that at the material time of the alleged
offence involving [E] and [VW], that there's evidence of delusional beliefs of this nature preceding the offence involving his father."
293In evidence, Dr Allnutt was asked to clarify that and he said (commencing at T385 L10):
"If it is accepted that at the time of the alleged offence involving his
father he was suffering from symptoms of psychosis in the form of a delusional belief that he and/or his family were under threat, then it would be reasonable to conclude that at the material time of the alleged offence involving [E] and [VW], that he was suffering from psychosis."
294He continued (at T385 L22):
"That there is evidence of delusional beliefs of this nature preceding the offence involving his father and following the offences involving [E] and [VW], given that delusional beliefs, by their nature, usually tend to persist, then it would be reasonable to be of the view that no matter what the scenario was at the time of the alleged offences involving [E] and [VW] was, he would have met criteria to reach the legal definition of disease of the mind and/or underlying condition causing abnormality of mind at the time of the alleged offences involving [E] and [VW]."
295Dr Allnutt expressed the view (at T385 L37) that if it were accepted that the appellant was psychotic at the time that he killed his father, then he likely would have been psychotic at the time of the offences involving E and VW.
296Dr Allnutt then set out the various assumptions that he had been asked to make (set out above) and reported as follows (commencing at T386 L17):
"Under this scenario, if it is accepted that he was, notwithstanding this, experiencing psychosis and thus a disease of the mind, he would be regarded as having a defect of reason because psychosis is a mental condition that, by its nature, causes a defect of reasoning. The issue would be whether or not the defect of reasoning was, specifically in relation to [EW] and [VW], of a nature and severity that it significantly impacted on his capacity to know the wrongfulness of his actions as it pertained to [E] and [VW]. This is because it is clinically feasible that a person with psychosis can reason defectively about one situation of a person and not another and thus it's reasonable to consider the issue separately from the offence involving his father.
In my view it is unlikely that under the scenario, his defect of reason was of a nature and severity that it significantly impaired his capacity to know the nature and consequence of his actions."
297He explained that this opinion was applicable equally to the circumstances surrounding the offences committed on both E and VW.
298Dr Allnutt then addressed the issue of wrongfulness (commencing at T386 L44):
"The issue here is whether or not his defect of reason was of a nature and severity that he was unable to know the wrongfulness of his actions at the time of the offence involving his father, he was of the delusional belief that he and his family were under threat and had had beliefs that he was being followed by his persecutors. The propensity to continue to hold this belief would still have been there at the time of the offence involving [E] and [VW].
While he was aware that what he had done to his father was wrong at the time that he entered the home of the second set of victims, in my opinion this was in a sense that he understood it to have been wrong in the eyes of others and in the legal sense that the evidence suggests that he remained of the view that he had done the right thing in a moral sense and this is the basis for my argument that he had, on balance, a defence of mental illness in regard to his father.
This difficulty in reasoning about wrongfulness would have persisted at the time that he entered the home of [E] and [VW]. His reasoning capacity, at least as it pertained to the death of his father, remained impaired by his on-going delusional beliefs and thus he was still vulnerable to impaired reasoning at the time of the alleged offences involving [E] and [VW].
There is, however, evidence of thoughts, actions and feelings of guilt and regret, in particular to [E] and [VW], which suggests some degree of awareness of wrongfulness. If the
scenario was that he attended the neighbour's house to divert
suspicion from himself in relation to the death of his father in trying to make it appear to be a home invasion for the purposes of obtaining money so he could leave the area and not be arrested by authorities in respect of his father, and that the attack on [E] and [VW] was consistent with that intention and that he took steps to make it appear that there had been a home invasion, and that the accused inflicted significant injuries on both victims other than slashing of their throats, and that the attack was more than momentary, and it is rejected that at the time the accused actively believed that he was being followed to the house and it is rejected that the accused mistook [EW] to be the attacker out to kill him, then I do not believe that a defence of mental illness would be available to him.
While he was probably anxious, emotionally aroused and paranoid
about his situation, the motive was rational to avoid recognition, detection and arrest by police. The behaviour planned [sic]. He would not be regarded as having involved the victims directly into his delusional belief system and that was thus likely to have known the wrongfulness of his actions in a legal sense and, having regard to his strong sense of guilt about events afterwards, likely had knowledge of moral wrongfulness of his actions.
This scenario would also support the conclusion as it pertained to
[E] and [VW], that he likely retained capacity to
understand events as it pertained to those victims, judge right from wrong in regard to those victims and control his actions, given the pre-planning, and the defence of such substantial impairment would be unlikely to be available to him.
And that's, in particular, substantial impairment to [EW], not [VW]."
299Dr Allnutt then continued (at T388 L28):
"If the scenario was that he attended the neighbour's house to divert suspicion from himself in relation to the death of his father in trying
to make it appear to be a home invasion and for the purposes of
obtaining money so he could leave the area and not be arrested by authorities in respect to his father, that it is rejected that at the time the accused actively believed that he had been followed to the house, and it is rejected that the accused mistook [EW] to be the attacker out to kill them, that the accused inflicted significant
injuries on both victims other than the slashing of their throats, and that the attack was more than momentary but that killing the occupants was not part of his initial plan at the time he entered, that it was only after he entered the home that the idea of the attacking or killing them occurred, then the issue is less clear.
A defence of mental illness is raised in a manner described in my
prior report, that is, not being able to reason with a reasonable
degree of sense of composure due to panic derived from delusions, but in relation to [EW] the defence of substantial impairment may also be applicable, his mental state could have impaired his capacity to control his actions because he could have acted impulsively in a panic due to his delusions.
...
If the scenario was that he attended the neighbour's house to divert suspicion from himself in relation to the death of his father in trying to make it appear to be a home invasion and for the purposes of obtaining money so he could leave the area and not be arrested by authorities in respect of his father, that the accused inflicted significant injuries on both victims other than the slashing of their throats, and the attack was more than momentary, that it is rejected that at the time that the accused actively believed he had been followed to the house, and it is rejected that the accused mistook [EW] to be the attacker out to kill him, but that the underlying motive was he was seeking a way to avoid further harm to his family by others and thought he was going to be killed in gaol, if arrested, due to delusional beliefs and thus an irrational motive, then a defence of substantial impairment is raised in that he entered the home with the impairment in his capacity to understand events and, to some degree, felt justified-
...
Determining the threshold of the applicability of a mental illness or
substantial impairment can be challenging. The accused has
provided varied accounts, at times less detailed than others, which scenario, and there are likely others, is factually acceptable and which defence is acceptable, is applicable, is a matter for the Court."
Cross-examination of Dr Allnutt
300Dr Allnutt agreed (commencing at T396 L47) that it was not uncommon for people, when recovering from, or even when still in, a state of psychosis, to have difficulty in providing an explanation for their actions. He also explained that it was not uncommon for people, when they found themselves in difficult positions, to try and rationalise such positions in a way which was more palatable to the listener. He agreed that the appellant was psychotic but took the view that he could fall into either of the categories which had been described.
301He agreed (commencing at T397 L30) that going to a neighbour's house right next to where the crime had been committed to make a phone call, in order to set up a scenario that he was trying to telephone his father, did not make sense. He took the view that wanting to establish an alibi was a relatively rational decision, but that trying to establish an alibi by killing other people, was irrational.
302Dr Allnutt accepted (commencing at T398 L5) that at the time that he approached the neighbour's premises, the appellant was vulnerable to the symptoms of his disease of the mind, that he was suffering from a defect of reason, and he was vulnerable to being deprived of a sensible appreciation and understanding of the unreality of his situation.
303He explained (commencing at T400 L14) that psychosis was characterised by hallucinations and delusions causing a person to see and hear things which did not exist and leading to a perception of reality which was non-existent. He also agreed (at T401 L29) that a person labouring under an acute psychosis can behave in ways that are altogether uncharacteristic and that they perceive the actions of others in a way which is not reality based and are prone to misinterpret the actions of others.
304Dr Allnutt also explained (commencing at T403 L40) that expressions of remorse post the event were not inconsistent with a mentally ill person who was unable to reason with sense and composure at the relevant time.
305Dr Allnutt said (commencing at T404 L30) that the evidence established that the appellant was psychotic both before and after the offences. He explained that his opinion that the appellant was psychotic did not arise from the fact the appellant had killed his father a short time before he attacked the Ws. He explained that there was a long history of mental illness and that in stating his opinion that the appellant was psychotic at the time the offence occurred, he was talking about a period of days weeks or months before hand. He explained (at T405 L3) that having regard to that opinion he accepted that the defence of mental illness was available to the appellant in relation to the acts giving rise to the offences concerning E and VW.
306Dr Allnutt also explained (commencing at T405 L12) that in making a determination of whether or not the appellant knew what he was doing was wrong at the time of attacking E and VW, it was relevant to consider what his other actions were at or about that time. He explained that those actions would include:
(i)the whole of his activity over a number of hours surrounding the attacks;
(ii)the killing of his father;
(iii)putting his father's body in the car and taking it away from the premises;
(iv)any explanation he gave for taking his father's body away;
(v)the fact that he visited his neighbours;
(vi)the suggestion that he thought that he was being followed by a blue car;
(vii)his actions from the time that he first arrived at the neighbours premises up until he struck the first blow;
(viii)the details of his assault on E and VW;
(ix)his actions while he was at the neighbour's premises; and
(x)what he did in the hours after he left the W premises.
307He also said that it would be relevant to take into account the circumstances in which the appellant attended upon his sister-in-law and that her observations (which included a description of the appellant presenting in what she thought was a paranoid state) would give rise to a reasonable conclusion that the appellant was manifesting a continuation of the psychosis which had been described.