R v Aller

The police interview

1. The accused told police in the recorded interview that in the weeks leading up to Ms Aiton's death they had arguments about her cannabis use, its effect on her and the amount of money spent on it. (Qs 111-116) For his part, he acknowledged having begun to drink again on the very day he left Miracle Haven and for the few days thereafter. He stopped drinking for about a month, but began again a couple of days before 31 July. He said that he agreed with Ms Aiton that he could have a drink and she could have a smoke. (Qs 143-152) He did not take his anti-depressant medication on 31 July or the previous day. Asked how it affected him when he did not take his medication, he answered, "Anti-depressants, you run rough if you don't." (Qs 525-8)
2. Turning then to the fateful day, his account in the interview of his movements during the morning is supported by other evidence. Put shortly, he left the townhouse to buy milk and cigarettes, obtain some cash from an ATM, and buy some cannabis for Ms Aiton. He bought a six pack of Jim Beam and coke at a liquor store. (Qs 154-172) At around midday he had two schooners of beer at a hotel, and at some stage he also drank two cans of bourbon and coke at a toilet in an arcade. These were not from the six pack which he had bought at the liquor store. He said that he bought them from a different liquor outlet, sat on the toilet and drank them as quickly as he could. Asked if he was affected by alcohol when he arrived back at the townhouse, he said, "Starting to, maybe." (Qs 486-504)
3. The argument and the stabbing which ensued occurred in the bedroom. It was there, he told police, that he started drinking the six pack of bourbon and coke. Asked how many, he said that he was not sure. He added, "I was drinking them very quickly … . Bang, bang, bang." He drank them straight from the can. He was asked how he would normally be affected if he had drunk all six of them, noting that he was a seasoned drinker. He replied: "I haven't been drinking lately at all. Yesterday was my first drink in quite a while, quite a few weeks, and it was just bang, bang, bang. I smashed them." (Qs 188-192)
4. He went on to say that an argument started and that bad things were said. He could not recall all that was said, but remembered that Ms Aiton called him a "fuckin' dumb cunt" to which he responded, "You fuckin' bitch, don't speak to me like that." He said that the argument developed, "got way out of control." (Qs 193-197)
5. Earlier in the interview he said that, after he got back to the townhouse, he was drinking and Ms Aiton was smoking bongs for "a good part of the next few hours." Then an argument started "just out of the blue." He continued: "This argument just started out of nowhere, and Amy pushed it and pushed it. I told her to stop. I'd had a few drinks. She pushed it. The words that were coming out of her mouth, the insults to me, then the insults towards my mother. Like, what is your mother, a fuckin' … compulsive lying old so-and-so. Again, Amy, don't push it. There was a little knife on the table next to her bed that she'd use … to clean … the cone of the bong. I glanced at it and she saw me glance at it, and she said, Go on, fuckin' do it, I want you to do it. You either do it, or I'm going to fuckin' do it to you. A few more things were said. I snapped, I grabbed it, and I repeatedly stabbed Amy. I don't remember … doing it, I don't remember terribly well." (Qs 21-22)
6. Asked how long the argument went for, he said, "I guess it was fairly lengthy. Maybe half an hour or so?" (Q290) Asked what was going through his mind while he was stabbing Ms Aiton, he said that he did not remember a thing. He said that his mind was "blank, completely blank … not completely blank, but nothing up here." (Qs 449-51) He was questioned closely about the detail of the event, including the manner in which he stabbed Ms Aiton, but the answers to which I have referred sufficiently encapsulate his account.
7. After the stabbing he covered Ms Aiton with a blanket in the position on the bed where she lay, and took the various steps leading to his arrival in Sydney which I have outlined at [2] above. Asked whether he had checked whether she was ok, he said that he moved her head and looked in her eyes. They were open but "she was gone." He knew that she was dead. (Qs 280-2) Asked whether he thought about ringing anyone at that time, he said that he did not. He was asked whether there was a reason why. After a long pause, he replied, "It was just like I wanted it to happen." He added, "I didn't feel anything. I certainly wasn't showing a heck of a lot of remorse at that stage." (Qs 301-3)
8. That said, he did express remorse during the interview. At the outset (Q 22) he said: "Amy's gone. She, pretty high price for an argument. She's lost her life. I'll probably spend the rest of mine behind bars, and that's just the way it, I still can't believe any of this happened." Later (Q 285), he said, "… I tell you what … I've taken this girl's life, but don't you worry, mate, what goes around comes around, and I'll … get what's coming to me big time." Towards the end of the interview (Q 607), he said: "…I'm a dead man, and you know what, I don't have, right now, I honestly have no fear whatsoever about, I don't want to be around either anymore. Amy's gone. I'm … going to go as well. One way or the other, I'll do it." Generally, throughout the interview he displayed an appropriate measure of distress. He spoke quietly and appeared to be doing his best to be responsive to questions asked of him.

The psychiatric evidence

1. The accused maintained this account when describing the incident to the psychiatrists, but he also described psychotic symptoms at the time. He told Dr Furst that he remembered "bits and pieces" of what occurred, and "absolute anger." He described a build up inside himself and hearing voices saying, "It's time to do it … do it!" This, he said, was "coming from inside my head. It seemed real."
2. He told Dr Nielssen that on the morning of 31 July he was hearing voices and needed a drink straight away. He again said that he could recall only bits and pieces of the fatal incident. Asked about his state of mind, he said that he heard voices "putting me down and saying nasty things about Amy." When Dr Nielssen took him to his answers in the recorded interview, he said that he had given an honest account of what had taken place but added, "I don't think I delved too much into my psychotic episodes … I just tried to be as accurate as I could be … I probably wasn't in a good frame of mind to give an interview on that day."
3. Indeed, he gave a history of enduring psychotic symptoms commencing in his late teens. To Dr Furst he described paranoid thinking, believing that people were talking about him and "coming to get him." He said that intermittently he had been hearing voices. These were unfamiliar voices in his head saying "dirty things to do to myself and other people…dirty stupid stuff and to kill myself." He felt embarrassed by these experiences and had to "cover it up." He described a pattern of persistent low mood, with a "premonition that something bad is coming." He also described intermittent suicidal ideation, including two occasions on which he took steps towards killing himself.
4. To Dr Nielssen he said, "When I look back now I can say I was psychotic and in another world." He described the experience of voices telling him to do bad things to himself and others and saying things that were "quite horrible." He added that sometimes alcohol helped and sometimes it did not.
5. There is no doubt that the accused has been psychotic while in custody. In their reports both psychiatrists reviewed Justice Health records, the more detailed review being that of Dr Furst. An early note in August 2012 described him as experiencing alcohol withdrawal and having suicidal thoughts. He was placed on safe cell conditions with daily reviews. On 8 August, he told a doctor that when he stabbed Ms Aiton he heard voices telling him that he was doing the right thing. He was considered to be an unreliable historian. On 17 August he told a psychiatrist, Dr Elliott, that he was hearing voices, including that of Ms Aiton, and that he had been "hearing voices in my head for years." He said that he wanted to die. Dr Elliott noted that he was "emotionally labile" but was not convinced that he was psychotic. Other entries recorded his complaint of hearing voices.
6. In September 2012 he was assessed by Dr Samson Roberts, to whom he described a voice he did not recognise telling him to kill himself. He said that at the time of the offence he had been having thoughts of killing someone "from something in me". He described these thoughts as emanating from a voice which he did not recognise. He described being distressed that Ms Aiton was suspicious that he was drinking, he was angry that she could see "the real me", and that she was laughing at him, seeing "how I really am." Dr Roberts noted him to be "extremely paranoid about everyone and everything people say." The doctor observed him to be profoundly depressed, and noted a family history of schizophrenia. He believed him to be experiencing auditory hallucinations and paranoia. He diagnosed schizophrenia and saw him as a high risk of self-harm.
7. In February 2013 Dr Furst himself assessed the accused. He described him as severely depressed in mood with evidence of auditory hallucinations. He was "internally preoccupied and appeared acutely psychotic." Dr Furst noted that his diagnosis was "unclear", but issued a certificate under Schedule 2 of the Mental Health Act 2007. Dr Roberts saw him again in that same month. He noted "clear presence of first rank symptoms of psychosis". He added, "I am not of the view that these symptoms could be feigned so proficiently." The accused had been on an anti-psychotic medication, and he increased the prescribed dose.
8. In February 2013 he was noted to have a serious mood disorder associated with severe behavioural disturbance, including banging his head against the walls of his cell and smearing the walls with his faeces. He was described as both "pacing and agitated." He stated that he wanted to kill himself and reported being "tormented by his voices."
9. In August 2012, he had tried to hang himself with a bed sheet in his cell. He was admitted to an acute care unit, and it was then that he was commenced on the medication. On 3 March 2013, while in that unit, he made a much more serious suicide attempt when he managed to hang himself. He was unconscious and had the lowest Glasgow Coma Scale. He was taken to Prince of Wales Hospital, where he had a 2 minute generalised tonic seizure. There he was stabilised, and on 7 March he was admitted to Long Bay Hospital as an involuntary patient under the Mental Health Act.
10. Thereafter he remained depressed, expressing guilt about the death of Ms Aiton and upset that he was still alive. He continued to exhibit paranoid beliefs and to report hearing voices. As Dr Furst put it in his second report, he "was not coping." His condition had noticeably improved when he was assessed in June 2013. Dr Furst saw this as the result of ongoing psychiatric treatment, albeit involuntary, and his anti-psychotic medication. Nevertheless, even at that time he reported voices telling him to kill himself.
11. In his first report Dr Furst diagnosed the accused as suffering from major depression with psychotic features, together with alcohol dependence. He added that a review of the available medical records, including his admission to the hospitals in the Orange area and the Hunter area to which I have referred and his period of rehabilitation at Miracle Haven, was consistent with his "suffering from a primary mood disorder, with a tendency towards depression, when under stress." Dr Furst continued: "He appears to cope poorly in his close personal relationships, with previous marital problems, likely domestic violence and various forms of threatening behaviour towards his former partners. Alcohol is likely to have been a significant factor in his past behaviour."
12. Dr Furst noted that this review did not support his reported history of hearing voices and of paranoid ideation throughout the majority of his adult life. He added that there was no indication that the accused was psychotic at the time of the police interview, noting that he said nothing about voices or paranoid thoughts at the time of the offence.
13. Dr Nielssen in his report diagnosed alcohol use disorder and psychotic illness, both in remission. He continued: "The diagnosis of alcohol use disorder is based on Mr Aller's account of regular heavy drinking, the salience of drinking over other activities, the experience of severe withdrawal symptoms, including withdrawal delirium and seizures, and the numerous complications of alcohol use, including its effect on his physical and mental health, the effect on relationships and employment, and the role of alcohol in this offence. The condition is described as being in remission on the basis of Mr Aller's detention in an alcohol free setting. The diagnosis of psychotic illness is based on the history of distressing auditory hallucinations that were first noted in the period immediately after his reception to prison and became more intense and distressing over the next six months, culminating in a serious suicide attempt by hanging. Factors contributing to the onset of psychotic illness include an inherited vulnerability to psychotic illness, past exposure to drugs known to trigger psychosis and brain damage from heavy drinking, which is evident in the history of episodes of withdrawal delirium and seizure. The diagnosis is probably one of chronic alcoholic hallucinosis, rather than an illness such as schizophrenia, because it seems Mr Aller was always aware that the experiences were hallucinations rather than providing a delusional explanation, and there were no other symptoms of schizophrenia or objective features of that disorder."

Substantial impairment

1. The defence of substantial impairment is articulated in s 23A(1) of the Crimes Act, as follows: "(1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter." By subs (8), an underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind. The accused bears the burden of establishing this defence on the balance of probabilities. His case is that a mental condition substantially impaired his capacity to control himself.
2. Important for the purpose of this case is subs (3), which provides: "(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section." The meaning of "self-induced intoxication" is clear enough, and it is unnecessary to refer to s 428A of the Act.
3. Dr Furst, in his first report, noted the accused's account that he had relapsed into drinking after leaving Miracle Haven and had stopped taking his anti-depressant medication. He also noted the answers in the recorded interview in which the accused had described drinking a six pack of bourbon and coke fairly rapidly and becoming angry, and his account that after "a few things were said" he "snapped" and repeatedly stabbed Ms Aiton.
4. Dr Furst concluded as follows: "The issue in question appears to relate to Mr Aller's capacity to control himself. He presents as a man who has suffered from depression for a number of years, struggles to cope under stress, and has a tendency towards violent or threatening behaviour when his close personal relationships are strained. It is possible that he lost control at the time in question and "snapped," as a consequence of his underlying mental disorder. Given his presentation in custody over recent months, his depression has been relatively severe. The question as to whether his impairment was so substantial as to warrant the charge of murder being reduced to manslaughter is a matter for the trier to fact to establish; however, he may have the partial defence of substantial impairment by abnormality of mind available to him."
5. Dr Nielssen questioned the availability of the defence in the light of s 23A(3), because of the accused's consumption of alcohol on the occasion in question. He expressed his conclusion in this way: "Mr Aller's psychotic illness is…an underlying condition within the meaning of Section 23A of the Crimes Act. The condition produced an abnormality of mind at the time of the offence in the form of distressing auditory hallucinations. However, it is unlikely that the effect of Mr Aller's psychiatric disorder alone would have led to the attack on Ms Aiton, without the disinhibiting effects of a quantity of alcohol.
6. Dr Furst's second report was prepared in response to Dr Nielssen's report. In that report he had regard to the observations of the accused's mental illness in custody, noting a dramatic deterioration between September 2012 and March 2013, with "evidence of a severe depressed mood and persistent auditory hallucinations." He thought that he probably had "a psychotic depression, with both melancholic and psychotic features." He expressed a differential diagnosis of schizophrenia or schizoaffective disorder. Again, he had regard to the evidence of auditory hallucinations when the accused was admitted to the hospital in the Hunter area in 2011, and the fact that he had stopped taking the medication prescribed for him at Miracle Haven before the offence.
7. Dr Furst expressed his opinion in this report upon the assumption that the accused had consumed up to eight alcoholic drinks and was intoxicated at the time of the killing of Ms Aiton. Upon the assumption, which I am prepared to make, that he drank all six cans of bourbon and coke which he had brought back to the townhouse, and having regard to his account to police that before returning to the townhouse he had drunk two other cans of that product and two schooners of beer, it would appear that he had consumed ten alcoholic drinks. However, I do not believe that anything turns on the difference.
8. Dr Furst concluded: "In my opinion, Mr Aller now presents with more evidence of major mental illness, with signs of severe depression and probably a prodromal presentation at the time of the offence in question before the Court. Schizophrenia, schizoaffective disorder, and psychotic depression are all substantial mental disorders, not mere transient disorders. His mental illness progressed in custody to the point that he nearly killed himself on two occasions by hanging and remains a mentally ill person. Although there is still some doubt about his self-report of 'hearing voices' at the time of the offence in question, numerous psychiatric assessments over the last 10-months make it highly likely he has a serious mental illness, which had its onset prior to the offence. I am now of the opinion that Mr Aller's impairment at the time of the acts causing the death of Ms Aiton was substantial, even if one disregards the effects of his self-induced intoxication at that time."
9. In oral evidence, Dr Furst explained the expression "prodromal presentation" in that passage of his report. He said that a person suffering from schizophrenia may for a time exhibit symptoms which could appear to be no more than depression, but that period may be a "prodrome or a pre-emtive phase before the more florid symptoms of schizophrenia."
10. Asked about his doubt about the accused's self-report of hearing voices at the time of the offence, he said that that did not concern him. Even if the accused had not been hearing voices, there was still "evidence of depression, treatment for depression at Miracle Haven, previous psychiatric admissions and then these ongoing more florid symptoms after his arrest." Yet again, he noted the report of some psychotic symptoms before the offence, in the hospital admission of 2011.
11. Asked in evidence-in-chief whether the accused's alcohol intake changed his view in any way, he gave this evidence: "A. It doesn't change my view. I'm allowing for the fact that he was probably intoxicated to a degree from the alcohol that he consumed, on the background of his alcoholism and tolerance. I still think he has a underlying impairment by way of either a severe depression or the prodrome phase of schizophrenia at that point in time. Q. And that was substantial, affecting his ability to control himself? A. Yes."
12. In cross-examination Dr Furst agreed that the accused did not appear psychotic, or show any signs of his underlying condition being active, during the police interview.
13. He gave this evidence: "Q. If there are no voices, or voices commanding him to do the acts he did, what was there about his underlying condition which either would create an abnormality of mind, or, if having an abnormality of mind, would affect a capacity to control what he was doing? A. Well, I think the words he used in the police interview were that he 'snapped', he used the term 'snapped' and what one sees in cases of first onset schizophrenia or where people are developing psychotic illnesses per se is a higher risk of violent and aggressive behaviour, or capacity in a global sense, to manage themselves and control themselves. And I don't think there was ever any indication that he was driven by voices to act in that way, as I understood his police interview and there (sic) version he gave to me. But because of the severe depression and the underlying mental illness, I thought that his capacity for self-control was impaired."
14. He agreed that alcohol could well have been a significant factor in the incident, and that a person who has developed a tolerance for alcohol may still have "heightened emotions, such as anger, or quick to anger" as a result of consuming alcohol.
15. As to the hearing of voices, he expressed the view that the accused's initial account to police was likely to be more reliable that his subsequent accounts to medical professionals. He said that, in any event, he did not think that the accused was driven by voices and that, for that reason, he did not consider the defence of mental illness to be available. It was put to him that, accepting that there was an underlying condition, the accused was not affected by it and that this was a case "more consistent with him having consumed some alcohol, there being an argument, got angry and determined to take that anger out on Amy." Dr Furst maintained his opinion that the underlying condition affected his capacity to control himself.
16. In answer to a question by me whether, discounting the effect of alcohol, the accused's behaviour was still attributable to loss of self-control as a result of his underlying condition, he said, "In my opinion, yes … ."
17. In his oral evidence, Dr Nielssen noted that the "distressing auditory hallucinations", which he saw as an abnormality of mind, emanated from the history given by the accused. He said that there was some question about the reliability of that history, because it changed over the period he had been in custody and he made no mention of it in the police interview. However, he said that a person who had experienced auditory hallucinations might not disclose them to police because they did not appear relevant. He added that chronic heavy drinkers do experience alcoholic hallucinosis. This is how he characterised the experience of voices which the accused described. He did not see features of schizophrenia at the relevant time, as the accused did not report delusional ideas arising from hallucinations. He appeared to recognise that they were hallucinations.
18. Asked in cross-examination whether, putting the alcohol to one side, he accepted that the accused was substantially impaired in the control of his actions, he said, "No, I don't think so. I think without alcohol he would have been able to control his actions." He was asked to consider how affected the accused might have been by the pattern of drinking he described to the police, given the tolerance he would have developed as an alcoholic. Dr Nielssen said that the determining factor would be the degree of his impairment, not his blood alcohol level. He added that, as a chronic drinker, he may have had some underlying brain injury over that time, "especially if he has had repeated withdrawal deliriums, seizures, the effect of very heavy drinking on his brain."
19. It was suggested to him that alcohol played no part in driving the accused's conduct, given the extent of his memory of the fatal incident when questioned by police, even though prior to the interview he had had a long drinking session at the hotel in Sydney. As to that his evidence was: "A. He certainly wasn't severely intoxicated to the point of having a black out. I could do a rough calculation of his blood alcohol level, but it probably was somewhere in the mid-range for drinking is my guess, you know, at the time. So he was not severely intoxicated. Q. But really the blood alcohol level is really not relevant, is it, in relation to an alcoholic? A. No, probably not given perhaps the tolerance to the effects of alcohol."
20. It was again put to Dr Nielssen that the accused's conduct was driven by an underlying psychotic illness and that the alcohol played no part at all. He replied, "I think the alcohol had an uninhibiting effect over and above his underlying personality and any symptoms he might have had at that time."
21. Plainly enough, the evidence on this issue points in different directions. I have conflicting opinions of two experienced forensic psychiatrists, both well versed in the relevant law.
22. The Crown prosecutor's primary submission was that the evidence does not establish an abnormality of mind in the accused at the relevant time. He did not suggest that the accused's account to the various health professionals that he was hearing voices was a fabrication, but he did argue that that assertion is unreliable. He noted that the accused made no such claim in the course of a lengthy police interview, during which he had ample opportunity to recount his state of mind. Indeed, there was nothing in what he said or in his demeanour to suggest psychosis of any kind. In truth, the Crown prosecutor submitted, this was not a case of substantial impairment: this was a killing in a drunken rage by a man with a longstanding dependence on alcohol and a history of domestic violence.
23. Alternatively, he argued that Dr Nielssen's evidence should be accepted. The only abnormality of mind the doctor propounded was the hearing of voices, which he saw as the product of alcoholic hallucinosis rather than severe depression or a nascent schizophrenic illness. In any event, Dr Nielssen was firm in his opinion that the accused's undoubted lack of self-control would not have occurred but for his intoxication at the time, so that the defence of substantial impairment failed by virtue of s 23A(3).
24. The Crown prosecutor's final submission was that even if the elements of the defence, that is substantial impairment by an abnormality of mind arising from an underlying condition, were made out, I would not be satisfied that that impairment was so substantial as to reduce the crime from murder to manslaughter: s 23A(1)(b). That, of course, is a matter for my assessment, applying community values.
25. I have given these arguments careful consideration, but I am persuaded by the submissions of Mr Bruce SC, for the accused, that the defence is made out. On balance, I accept the evidence of Dr Furst. He had the benefit of considerably more contact with the accused than Dr Nielssen, contact for therapeutic as well as forensic purposes. He observed the development in the accused of serious mental illness from his admission to custody and over the period thereafter. It is apparent that he arrived at the conclusion expressed in his second report only after a careful examination of all the material, including the history provided by the accused and the records of his treatment prior to the offence and of his psychiatric intervention in custody. As Mr Bruce put it, his evidence was "very considered."
26. I find it unnecessary to decide whether the accused did hear voices at the time of the killing. What is apparent is that he mounted a ferocious attack upon the unfortunate Ms Aiton, clearly the product of a loss of self-control. While the evidence before me of his alcohol fuelled domestic violence in the past is scant, there is nothing in it to suggest violence of the extreme order exhibited on this occasion. It was entirely disproportionate to the heat which his exchange with Ms Aiton might reasonably have generated. It bespeaks an abnormal state of mind, one which is satisfactorily explained by the underlying condition identified by Dr Furst. Putting aside the hearing of voices, it is consistent with this condition that he neither described nor exhibited overt psychotic symptoms during the police interview.
27. I am also persuaded by the evidence of Dr Furst that the accused's psychiatric illness was the operative factor in his loss of self-control, putting aside the effect of the alcohol he had consumed that day. In any event, there is force in Mr Bruce's submission that he might not have been markedly impaired by that consumption, which appears to have begun in the late morning and then resumed during the afternoon. While drinking of that order would stop most of us in our tracks, its effect may have been limited on a chronic alcoholic with the tolerance engendered by long term excessive drinking.
28. For these reasons I am satisfied on the balance of probabilities that the accused killed Ms Aiton while he was substantially impaired by an abnormality of mind arising from an underlying condition. I am also satisfied that that impairment was so substantial as to warrant his liability for murder being reduced to manslaughter, given the marked effect of his condition upon his capacity for self-control and its significant bearing upon his culpability. A helpful reference to authority on this question is to be found in the judgment of Johnson J in Potts v R [2012] NSWCCA 229, 227 A Crim R 217, at [33].
29. Accordingly, I find that the accused is not guilty of murder but that, on the limited material available, he committed the offence of manslaughter.

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