This is a tragic case. The accused is on trial before me, sitting without a jury, for the murder of his 5 year old son. There is no issue that he killed the child. He relies upon the defence of mental illness, and there is no issue about that either.
[2]
Facts
In written submissions by the Crown prosecutor there is a summary of the relevant facts, which are agreed. They are, in any event, established by the substantial evidentiary material in the Crown bundle which is in evidence. My recitation of the facts is drawn for the most part from those agreed facts.
The offence occurred in the morning of 8 June 2018 at the home where the accused lived with his partner and the deceased child, their son. The accused attacked the child brutally, causing his death, in the course of a psychotic episode.
The accused has a history of mental illness, having been diagnosed with schizophrenia in late 2003. Over the ensuing years there were a number of admissions to hospital, voluntary and involuntary, and he was under the care of Community Mental Health Services. He was prescribed medication in various forms, with which he was not always compliant, and he has been subject to a community treatment order. A detailed account of his condition and treatment in the period leading up to the offence is set out in the agreed facts.
On 19 April 2018 the accused attended Hornsby Hospital and was assessed by mental health professionals. The accused described "feeling pressured to save the world, having delusional thoughts involving the devil and difficulty sleeping". He told the medical officers that "he wanted to sleep and pass away peacefully to save the world". A consulting psychiatrist who examined him noted that he was suffering from "a relapse of psychoses."
The accused was voluntarily admitted to hospital and he was prescribed an atypical antipsychotic, Aripiprazole. The first dose was administered on 1 May 2018. He had no side-effects and he consented to commencing a long acting injection. He had been on Quetiapine and his dose was increased to 300mg. During his admission his mental state improved.
However, his mental state deteriorated two days after his discharge. He expressed a "wish to die", and he was calling his father and his child "the devil". He was assessed by the Castle Hill Community Mental Health Team on 21 May 2018 and attended their Centre on 22 May, where he declined an appointment with a psychiatrist.
The accused's partner believed that his attitude towards his son had changed since his release from hospital on 19 May. She began sending their son to the accused's mother's home because she was "scared" for the child.
On 29 May 2018, the accused failed to attend his scheduled appointment at the Community Mental Health Centre at Castle Hill, but on 30 May, his partner contacted the Centre and arranged for the accused to attend later that morning. He did attend and said he was doing well. He was experiencing auditory hallucinations, but denied believing he was no longer in control of his own thoughts and actions and denied any thoughts or plans to hurt himself or others.
On that occasion the accused said that he had ceased his oral Aripiprazole seven days earlier as he had run out of prescriptions. He and his partner were advised to return home. The Mental Health Centre contacted them and faxed a prescription for the Aripiprazole to a local pharmacy.
On 1 June 2018, the accused told the Mental Health Team that he was having auditory hallucinations, was agitated and staying in bed. On 4 June, he, his partner and his mother attended the Mental Health Team, and he said that he was having auditory hallucinations that "were trying to control him."
On 5 June he and his partner again attended the Mental Health Team. He was anxious and restricted and he had deteriorated over the last few days. He was experiencing delusional ideation and auditory derogatory hallucinations, as well as bizarre delusional ideas involving the devil and religion. He was assessed as having ongoing psychotic symptoms and was relapsing. The level of risk was regarded as low to moderate, and it was determined that he required additional or alternative antipsychotic medication.
Aripiprazole Depot (400 mg) was administered to the accused that day. The management plan included cessation of oral Aripiprazole, commencement of 100 mg of Quetiapine in the morning and 300mg in the afternoon, and a further 100 mg of Quetiapine in the afternoon if required. He was to be reviewed in two weeks.
The accused's partner told the clinician that he was saying that the child was "a very bad kid". On return from this appointment the accused told his partner that he was having thoughts that the child was the devil. Arrangements were made for his mother to care for the child overnight.
On 6 June, the accused, his partner and his mother attended the Community Mental Health Centre at Hornsby seeking a voluntary admission for the accused due to his ongoing delusional thoughts. They conveyed their concerns about the child's safety as well as the accused's deteriorating mental state. During the meeting, the clinician recorded the following notes:
"Mother made statements such as 'how do I sleep at night? I worry that I will wake up and find my grandson dead as [the accused] has snapped overnight'."
They said that they were hoping for a voluntary admission at Hornsby Hospital, but were advised that there were no beds available there. They were told they could wait in Emergency until a bed became available, which was declined. The mother said she would take the accused to another hospital until he was admitted. Later that afternoon, the accused's partner was advised that he had taken some medication and had settled down.
On 7 June, the accused attended the Hills Community Centre, where he advised that his son was "safe". That afternoon, he collected the child from his school and then picked up his partner from her work at an Epping Nursing Home. They got fish and chips and returned home. Later that night they went to bed. The child initially slept in the same bed as the accused and his partner, but then he moved to a smaller mattress nearby.
[3]
8 June 2018
On 8 June 2018, the accused's partner awoke. He himself woke briefly but stayed in bed. At about 6.30am his mother arrived to take his partner to work at Epping. His mother saw the child asleep in the bedroom, wearing blue pyjamas and covered with a blanket.
The accused got out of bed and spoke to his mother. She told him to go back to bed as he looked "buggered", and that she would only be half an hour. She asked if he wanted some music on and he said that was a good idea. She asked him again if he was OK and he replied that he was. The two women left the home.
After they left, the accused got up and went to the kitchen, retrieved a brown knife, and returned to his bedroom. The child was asleep on the mattress beside the bed. The accused approached the child and, using his right arm, stabbed the child mainly in the chest area 76 times over a period of one to two minutes.
The child was saying "Daddy", and attempting to move away from the accused as he was stabbing him. The accused pursued him and the child rolled onto the floor. In a recorded interview with police after his arrest, the accused described getting down onto one knee when he was stabbing the child.
After stabbing the child, the accused could hear him struggling to breathe. He placed his hand over the child's mouth to stop him from breathing. The accused returned to his bed to get some sleep. He then heard more sounds from the child. He went back to him and held a hand across a wound in his back, and the other hand across his mouth and nose. The accused then dropped his knees onto the child's body six or seven times. He then returned to bed.
At around 7.00am the accused's mother returned, opened the front door and walked into the kitchen, then down the hall to check the accused, who was lying in bed covered with blankets.
She asked the accused, "How are you feeling, mate?", and the accused replied, "Yeah, I am fine, I will be right".
She then looked over to the child and saw him lying, face down on his stomach, about a metre from his bed. There was blood covering his bed and the carpet and there was the knife covered with blood on the bedside table. She said, "My God, what have you done?" The accused said, "I will open the door for you." He then opened the front door and closed it after she left, carrying the child.
She took him to her car, placed him in the front seat, drove down the street and called 000. She was instructed to pull over and commence CPR. She did so. Police and ambulance officers attended. She was asked, "Who did this?" She said it was the accused and that he was at home. She provided his address and added, "Please don't hurt him, he's calm".
The child was conveyed by ambulance to Westmead Children's Hospital, where he was pronounced deceased at 8.00am.
Police attended the accused's home and arrested him. There he said to police:
"I just murdered my son, I feel sick. I thought my son was the devil, well no, I know he is, but he's dead now. Well I think he is. I thought I could save the world, well no, I know I can save the world, I can".
In the recorded interview, the accused provided a graphic description of the manner in which he killed the child, which has been sufficiently set out above. He reiterated his belief that the child was the devil, and described himself as the Messiah. He said that the child was "trying to tear my soul apart". Later in the interview he said, "I knew it was the right thing to do but … I didn't know how much time we had … I didn't know how much time til Doomsday".
[4]
The issues
I am satisfied beyond reasonable doubt that the accused caused the death of the child by a series of deliberate acts. It is at this point that the defence of mental illness falls for consideration: Hawkins v The Queen (1994) 179 CLR 500; R v Minani (2005) 63 NSWLR 490, [2005] NSWCCA 226, at [32] (498).
It is unnecessary to refer to the development in the 19th century of the defence of mental illness, using the language of defect of reason from a disease of the mind. The only issue which I must decide is whether at the time of the offence the accused was mentally ill so as not to be responsible in law for his actions. He bears the burden of establishing that defence on the balance of probabilities. The defence is made out if I am satisfied that, more likely than not, at the time of the offence he was suffering from a mental illness such that he did not know that what he was doing was wrong.
A time honoured expression of the test is to be found in Sir Owen Dixon's summing-up to the jury in a murder trial in Canberra in 1933: The King v Porter (1933) 55 CLR 182. Speaking of the accused in that trial, his Honour said (at 189-190):
"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."
On this issue I have the benefit of the reports of two seasoned and respected forensic psychiatrists: Dr Olav Nielssen, engaged on behalf of the accused, and Dr Adam Martin, engaged by the Crown. Both experts were supplied with information about the Crown case and about the accused's psychiatric history. Both of them interviewed the accused in custody. Both confirmed the long standing diagnosis of schizophrenia and arrived at the same conclusion, that is, that the accused has the defence of mental illness available to him.
It is not necessary to go to the detail of the reports. Dr Nielssen provided two reports, but it is sufficient to set out the conclusion expressed in the first of them:
"[The accused] has a disease of the brain in the form of schizophrenia, which in its typical form is a neurodegenerative disorder affecting the frontal lobes of the brain. Schizophrenia produces a pattern of abnormality of mind that is recognized in law to be a disease of the brain. At the time of the offence he had a defect of reason in the form of an acute exacerbation of the illness that appears to be related to treatment with a less potent form of antipsychotic medication, during which he had disorganized thinking, perceptual disturbances and developed the delusional belief that his son was the devil.
From his answers during the recent interview, it seems likely that [the accused] was aware of the physical nature and quality of his actions in stabbing his son. However, at the time I believe he was deprived of the capacity to recognize that his actions were wrong, because of the effect of the delusional belief that his son was the devil, and that somehow by killing his son he would ascend into heaven.
He was also deprived of the capacity to reason with any sense or composure about the nature of his delusional beliefs or the alternate courses of action open to him because of the severe impairment in the capacity for logical thinking associated with acute forms of schizophrenia."
Dr Martin put it this way:
"…schizophrenia is considered to be a serious mental illness affecting a person's belief systems and thought processes and associated with disordered behaviour.
[The accused] would have had knowledge of the quality and nature of the alleged actions and apparently admitted to killing his son deliberately and intentionally. However, his motivation for doing so was directly connected to his disordered belief system where he had been experiencing sustained thoughts of his son being the Devil and of needing to kill him and go to Heaven, and believing that he would be reassembled by God. The offending occurred in direct nexus to delusional thinking.
In my opinion, the alleged murder of his son occurred for psychotic reasons and [the accused] would have had a highly distorted appreciation of the wrongfulness of his actions. He would not have been able to reason with a moderate degree or composure. The offending occurred in the morning and does not appear to have been associated with intoxication. The motivation for the alleged offending appears to have been entirely psychotic, in the context of schizophrenia, which was not adequately managed by anti-psychotic treatment."
The position is clear. Apart from the persuasive reports of the two psychiatrists, I have reviewed the other evidence and have been assisted by helpful written submissions by the Crown prosecutor and by Mr Johnston SC for the accused. The Crown prosecutor supports Mr Johnston's submission that the defence of mental illness has been made out, and I am satisfied on the balance of probabilities that it has.
Accordingly, I find the accused not guilty by reason of mental illness. Of course, this does not entitle him to immediate release. He will remain detained for an indefinite period, subject to an enforceable regime of treatment and rehabilitation under the supervision of the Mental Health Review Tribunal. Upon his release he would remain subject to supervision and monitoring, with periodic review by the Tribunal, for a further significant period.
I shall consult the parties about the formal order to be made.
I express my deepest sympathy to the unfortunate child's mother and to other members of the family in their loss.
[5]
Amendments
24 July 2019 - coversheet - anonymised party
26 August 2019 - 26 August 2019 - Pursuant to UCPR r 36.17 "Hills Community Centre" replaces "Community Health Centre at Hornsby"
27 August 2019 - Pursuant to UCPR r 36.17, at [17] "Hills Community Centre" replaces "Community Mental Health Centre at Hornsby"
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 August 2019