R v Blacka

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: This is a very tragic case, involving the death of a young boy aged two years, that occurred on Sunday 6 June 1999, at the home of his mother. It was occasioned by the act of the accused who was a boarder at those premises. Arising out of that act, the accused was charged with murder. 2 Shortly prior to his death, the young boy entered the room of the accused. While there, the accused picked up a ballpein hammer, which he was accustomed to carrying about his person for the purposes of protection. Tragically, he struck that child eight or nine times about the head with that hammer occasioning massive injuries which led to his death. Having carried out this act, the accused placed the hammer upon the lounge room floor and walked out to the front of the house to await police. On the way out he apologised to the mother of the boy stating that he had not meant to do it. 3 Upon arrival of police, he was initially cooperative but when asked to lie upon the ground he began to struggle violently, whereupon they attempted to arrest him. Capsicum spray was used, in an attempt to subdue him, but such was the extent of his disturbance that it appeared to have very little effect. Eventually he was overcome, but not before biting one police officer on the finger and assaulting two other police officers. 4 After being taken to hospital for treatment of the injuries sustained in the course of the arrest, a blood sample was obtained. He was later interviewed. The blood sample did reveal some traces of cannabinoids and also amphetamine, but it appears from the report of Dr Moynham that those substances were not present to any significant extent. In particular, the amphetamine traces were below therapeutic levels. To the significance of those findings I will return. 5 During his interview, the accused provided details concerning the attack which were consistently reproduced in the histories that were taken by the several psychiatrists who subsequently reviewed him. In broad substance, he reported that after the young boy came into his room, he experienced delusions, which were both auditory and visual. He said that the boy's voice changed and that someone began talking through him who he believed to be the Devil. In the course of the succeeding moments, he had a visual hallucination that the boy had grown horns in his head. According to him, his eyes started to flicker around and he felt funny. He asked the child not to do it and to leave him. For a time he had the impression that the child reverted to normal but he then re-emerged in the form of the Devil talking to him. It was as a consequence of those hallucinations and the voices that he heard in his head, that , the attack occurred which brought about the terrible death of the small boy. 6 The history that he gave in the ERISP was uniformly given to and recorded by the several examining psychiatrists. Additionally, it was noted that he had something of a troubled history commencing with a recourse to heavy drinking and cannabis use from a relatively young age. That cannabis use continued until the time of the matters which now bring the accused before the court. Additionally, it appears that from time to time the accused has used heroin and cocaine, as well as Ecstasy, but more significantly he has a long-standing history of significant amphetamine abuse in a binge form. It appears that recourse to that substance followed his treatment for alcoholism, and it was a habit which effectively destroyed his career in the horseracing industry leading him to become a displaced person living rough, but engaged from time to time in casual work within that industry. 7 At a time, which is somewhat inconsistently recorded in the histories but appears to have been during the period 1993 to 1995, he was admitted to Shellharbour Hospital and treated for an acute amphetamine induced psychosis which subsequently resolved. Thereafter, in 1996 during his reception into the prison system for other offences, he was found by a Dr Lewin to be paranoid. Whether or not antipsychotic medication was prescribed within the prison system is not entirely clear, but it does appear that in 1997 Dr Chandra did prescribe such medication for him. The accused continued to take it, at least during the currency of the prescription. 8 Thereafter, the history would suggest that from time to time he did suffer from auditory hallucinations, ideas of reference and paranoid experiences. His mother recalled two such occasions where he had the belief that people were lurking outside his house or otherwise determined to cause him harm. On one such occasion he reportedly jumped off a moving train as he thought that people in the carriages had guns. It was her impression that his mental health had deteriorated since the age of 20 and that such deterioration became significantly more noticeable after he reached the age of 30. 9 The medical evidence is all in one direction, both as to his fitness to plead and as to the presence of mental illness at the time of the killing. Each of Doctors Nielssen, Canaris and Wilcox have expressed the opinion that the accused suffers from chronic schizophrenia. Dr Cullen's diagnosis did not go quite so far. Although it appears that his review was somewhat provisional, he was satisfied that the accused suffered from a "paranoidal psychosis" at the time of the offence. 10 I am satisfied from the unanimous opinions of the reviewing doctors that this was not a case of a temporary drug induced response or of an outburst of anger attributable to difficulties that the accused was suffering in relation to his friendship with a strapper. 11 No doubt there was a complicating factor in the history of drug abuse, particularly in the use of drugs over the days preceding the offence. However, the blood sample would not suggest that he was subject to their direct influence at the critical time. I am satisfied that the accused's obsessive and jealous possessiveness concerning his friendship did help to cause him to be somewhat disturbed over the week or so leading up to the offence. It is clear that he had a long-standing infatuation with that man which was not necessarily returned, and that he was exceedingly jealous or troubled by that friendship which appeared to be having its problems. However, there is nothing to suggest that he was exhibiting obvious signs of anger when he returned home, let alone that he had any reason to take out that anger on the child, whom it would appear, he liked. 12 The matter of significance that establishes that this was not a transient, or a purely drug induced reaction, or outburst of anger, emerges from the opinion of Dr Nielssen where he notes that: "The persistence of symptoms of mental illness nine months after ceasing amphetamines, despite treatment with moderate doses of antipsychotic medication, indicates that the correct diagnosis is schizophrenia." 13 The reference, in that regard, is to the history of the accused while in custody, after the offence, it being the fact that although free of prohibited drugs he suffered a continuation of symptoms of hallucination, paranoia, ideas of reference and the like that characterises the illness diagnosed. It was not until there was a change of antipsychotic medication that any improvement in his condition emerged. Even now his condition has not fully resolved since he remains suspicious, fearful and prone to auditory hallucinations and fluctuating delusions. 14 In Dr Nielssen's opinion, the accused was: "acutely psychotic at the time of the offence. It is likely that the acute symptoms of mental illness were triggered by the drugs he took on the day of the offence. There was a history longstanding of amphetamine abuse, which is known to induce psychotic illness in susceptible individuals, and at least one previous acute psychotic episode for which Mr Blacka required treatment in hospital." Dr Nielssen continued,

"At the time of the offence Mr Blacka was suffering from an acute exacerbation of chronic schizophrenia, which is recognised to be a 'disease of the mind'. The illness produced a defect of reason, that is the belief that the boy he killed had become possessed by the Devil, on the basis of auditory hallucinations he took to be coming from the boy. He also reported auditory hallucinations at the time of his arrest by the police, which he said caused him to believe that he was about to be killed. As a result of his acute symptoms he would not have been able to know that what he was doing was wrong, as he believed he was protecting himself from the Devil, who he took to be attempting to enter his body." 15 Dr Canaris similarly expressed an opinion as follows:

"1. I believe that your client suffers from severe chronic schizophrenia which has been present in florid form since at least the day of the killing. He killed a child with no sensible motive for doing so saying that he believed that the child turned into the Devil taking on the appearance of a demon. He says he heard voices telling him to hurt the child and at the same time felt under the control of an external agency. Immediately afterwards he felt enormous remorse yet struggled fiercely with the police when they arrived despite waiting for them to apprehend him. In the ERISP interview, he presents in a disorganised fashion described above. Subsequently, he is found to have a persistent psychotic illness in gaol which has been contained but not totally suppressed by medication.

"2. There are furthermore numerous features consistent with at least a prodromal schizophrenic illness over many years prior to the killing. These were exacerbated by drug use. It is possible that the florid psychosis which finally emerged on 6/06/99 was triggered either by his drug use, his inability to accept that his infatuation with Daniel was most unlikely to be consummated or both. It is also possible that he would have become unwell at that time irrespective of any external precipitants. The fact that his florid illness has been present continually since 4/06/99 if not before indicates that he suffers from an inherent disorder of the mind as opposed to merely a transient drug or stress induced illness.

"3. There is no doubt in my mind as to the diagnosis of schizophrenia. This man has suffered bizarre delusions, auditory and visual hallucinations, formal thought disorder and shows the gross psychosocial decline typically seen in severe variants of this illness. There is evidence of a lengthy prodromal phase in which most of his psychosocial decline takes place. His history of chronic drug abuse was more than likely a feature of this decline and possibly also an attempt to self medicate the dysphoria characteristic of this illness. It would probably have accelerated the emergence of his illness but is unlikely to have been its fundamental cause.

"4. I believe your client at the time of the killing knew the nature of his actions but had his will overborne by the overwhelming nature of his psychosis at the time. He was suffering from command hallucinations, visual hallucinations and believed that the boy was the Devil. He felt an irresistible impulse to strike him. He felt as though his body had been taken over by an alien force. Thus, while he retained a modicum of contact with reality which allowed him to perceive the horror of what he was doing, his capacity to comprehend in any meaningful sense the wrongness of his actions was virtually non-existent." 16 Dr Wilcox, as I have observed, was of like opinion, observing in her report: "I believe that for many years Mr Blacka experienced intermittent episodes of drug induced psychosis characterised by ideas of reference (a feeling that people were talking about him) and a well formed persecutory delusional structure. However it is also my belief that in addition to having had periods of drug induced psychosis he also had an underlying primary psychosis. Since coming into custody his underlying psychosis has developed in a more florid schizophrenic illness and he now presents with a range of symptoms that are typical of paranoid schizophrenia including auditory hallucinations and delusions of reference, passivity and persecution.

"There are a number of reasons for believing that he had an underlying psychosis. He reported that he had felt paranoid even during periods where he was not abusing amphetamines. In addition he was more of a binge user than a chronic user and amphetamine psychosis does not usually develop unless the person is a chronic heavy user or has an underlying vulnerability. He did smoke cannabis on a consistent basis and it is generally accepted that those who develop a psychosis due to cannabis have an underlying vulnerability and will eventually present with symptoms of schizophrenia. If his condition was purely drug induced it is unlikely that he would have had persistence of symptoms despite several months of abstinence from both cannabis and amphetamine." 17 Dr Wilcox concluded: "On the basis of the information available to me and my examination of Mr Blacka I believe that at the time of the homicide he was suffering from a disease of the mind and although he would have been aware of the physical nature and quality of his actions - after all he waited for the police and ambulance to arrive with no real attempt to flee - it is most probable that at the time of the offence he was unable to reason with a moderate degree of sense and composure about the wrongness of his actions." 18 Having regard to the unanimity of this opinion, I am satisfied that the M'Naghten Rules are satisfied and that the proper verdict to be found in this case is one of not guilty by reason of mental illness. 19 I accordingly find the accused not guilty by reason of mental illness. In accordance with section 39 of the Mental Health (Criminal Procedure) Act 1990, I order that he be detained in a psychiatric hospital gazetted under the Mental Health Act 1990, in accordance with the provisions of that Act.

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