R v Colin Maxwell FARROW

Supreme Court of NSW|2015-02-27|Before: Rothman J

JUDGMENT

HIS HONOUR: Colin Maxwell Farrow (the accused) is charged that on 11 April 2013 he murdered Linda Stevens. The accused applied for a trial by judge alone, which, despite the non-agreement of the prosecutor, was ordered: see R v Farrow [2014] NSWSC 1781.
It is necessary to deliver a verdict, being a finding that could have been made by a jury, and including in it the principles of law I have applied and the findings of fact that form the basis for the verdict.
Apart from the duty of the Crown to prove guilt of the offence beyond reasonable doubt, the accused also raises insanity as a defence and, as a consequence, the accused is required to prove, on the balance of probabilities, that he is not guilty by reason of mental illness.

Events Prior to 11 April 2013

Between July and October 2012, the accused was introduced to the deceased by Victoria Cade, who initially would attend at the deceased's premises with the accused to buy and to use drugs. Later, the accused attended either unaccompanied, or in the company of others.
In or about February 2013, the accused attended the deceased's premises with Wayne Rogers. The deceased sold drugs to Mr Rogers on credit, but refused to sell drugs to the accused on credit.
At or about the same time, the accused moved into his premises at Wentworth Street, Port Kembla.
The accused had what he perceived to be a "falling out" with Victoria Cade, who remained a good friend of the deceased.
On 2 April 2013, the deceased sent a text message to the accused in or to the effect that if he, were to continue "to be like that, don't come back".
On 6 or 9 April 2013, the accused met Katrina Cade, Victoria's mother, while she was having morning coffee. He expressed the view to Katrina Cade that he was upset at his "falling out with Victoria".
On 9 April 2013, the accused purchased a number of items: 1. At 11.19am, the accused bought rope, pliers, superglue and a sharpening stone from VNH Dollar Shop on Crown Street, Wollongong; 2. At 12.18pm, the accused bought gaffe tape and electrical tape from the Reject Shop at Westfield in Warrawong; 3. At 12.30pm, the accused attempted to withdraw money from an ATM in Cowper Street, Warrawong.
On or about 5.45pm on 9 April 2013, Victoria Cade sent a text message to the accused asking him not to contact her anymore.
At around lunchtime on 10 April 2013, Victoria Cade went to the deceased's premises and bought drugs. When she attended at the premises, the deceased and Kerry Iles were there. Victoria Cade told the deceased and Kerry Iles of her "falling out" with the accused and that Victoria Cade had requested the accused to delete her contact details from his mobile.
In response to the above information, the deceased informed Victoria Cade that the accused had been at her premises earlier in the morning, when the deceased was not home. The deceased remarked that the accused "should have waited". Apparently, the accused did not obtain drugs on 10 April 2013, at least not from the deceased.
On or about 5.15pm on 10 April 2013, in Cowper Street, Warrawong, the accused again attempted to withdraw money from an ATM. At 10pm that night, at Crown Street, Wollongong, the accused attempted for a third time to withdraw money from an ATM.

11 April 2013

On 11 April 2013 between 8.45am and 8.50am, the deceased was driving her child to school. A witness, Melissa-Anne Cruickshank, saw her. There is no evidence of what other tasks, if any, the deceased performed that morning or whether she stayed at school for a long or short time.
On the morning of 11 April 2013, at approximately 9.30am, the accused left the railway station at Wollongong, walked along Crown Street turning north along Dennison Street in the direction of Throsby Drive and towards the deceased's unit. It takes about 10-15 minutes to walk from the station to the deceased's unit.
At 10.43am, the accused was seen by a witness, Hannah Bereyne, in the vicinity of the deceased's unit. The accused was in Bligh Street, with a "backpack over his left shoulder" and "looked like he had no emotion in his face…walking quite fast and…very determined to get somewhere".
Sometime shortly before 11.43am on 11 April 2013, Kachina Bereyne knocked on the door of the deceased's unit but there was no response. She heard what she considered was movement inside the premises, including what she thought was someone searching through the tool box. At the time, the deceased's car was in her garage and the garage door was open. Kachina Bereyne returned home (her unit is upstairs from the deceased's premises) and sent the deceased a text message. The message was sent at 11.43am. Ms Bereyne received no reply.
Shortly after Ms Bereyne sent the above text, Victoria Cade arrived at Ms Bereyne's premises. Ms Cade had sought to visit the deceased, had also heard noises from inside the premises, received no response to her knocking and came upstairs to see what was happening. Ms Cade had also tried to contact the deceased by phone, but there was no response.
Victoria Cade's evidence was that these events occurred between 10.30am and 11.00am on 11 April. There is a minor inconsistency in timing. The only reliable independent evidence is the telephone record of the message sent at 11.43am. For some reason, no record of Victoria Cade's attempt at telephone contact was adduced. It may be that Ms Bereyne's recollection of the relative timing may be inaccurate. On the other hand, Ms Cade's timing may be wrong. The difference, ultimately, is not of great significance.
At 2.22pm on 11 April 2013, the accused purchased a pick and shovel at Bunnings. The CCTV footage shows the accused in seemingly different clothes to those worn by him in the morning.
At 2.40pm on 11 April 2013, the accused was driving the deceased's car. Witnesses observed him driving in a most erratic manner. The front tyre had blown, the tyre had disintegrated and the wheel rim was gouging the road. Further, the accused drove the car, "sideswiping" or colliding with parked cars and did not stop.
At 2.45pm, a witness observed the accused driving in a north direction along Foothill Road, Corrimal when the car mounted the kerb, proceeded down a grass hill and came to a halt just before a creek. The accused alighted the car and walked up the hill, carrying a backpack and wheeling a purple and black suitcase.
Between 3.00pm and 3.30pm, the accused went to Darren Leatham's home and borrowed his bicycle in exchange for drugs. The accused then had possession of more drugs than he could have used in the short term.
The accused's erratic driving had caused a number of otherwise independent people to call the police, who located the car, identified the address of the registered owner and attended at her premises.
In the meantime, at about 4pm on 11 April 2013, Kerry Iles went to the deceased's apartment and did not receive a response to her knocking. Ms Iles left a note under the deceased's door. Ms Iles noticed blood on the floor of the stairs. The deceased had not collected her child from school.
When police attended the deceased's premises, they too noticed blood on the stairs and were told that the deceased had not collected her child from school. The police gained entry to the premises and observed what looked like blood inside and outside the unit.
The police returned to the deceased's car and discovered her body in the boot of the car with what seemed like, and were later identified as, stab wounds. The police thereupon established a crime scene around the car and at the deceased's premises. The accused's mobile telephone was found in the deceased's car, as was the pick and shovel purchased by him earlier that day.
The accused's body was bound with duct tape and rope identical to that purchased by the accused on 9 April. An "Aldi" bag was found behind the driver's seat. The bag had the accused's palm print, in blood, on it. The accused's palm print was also on the shovel (as one would expect if it were the same shovel purchased earlier).
The accused's finger prints or palm prints were located in the car, at and around the steering wheel and elsewhere, including the console, on the rear passenger window (driver's side) and the internal rear vision mirror.
The accused's palm print was found on the outside of the door to the deceased's premises and a partial match of the accused's shoe print was also found nearby. The palm print cannot be used to add to the circumstantial evidence relied upon by the Crown as there would have been many occasions, unrelated to the deceased's death, when a print may have been deposited. One must also be careful in using the shoe print in support of the Crown case. It too may have a reasonable explanation consistent with events other than a murder. It has some weight if taken with other circumstantial evidence, but given its lack of probative value and its potential prejudice to the accused, I propose to ignore the shoe print in either reasoning to guilt or to explain the conduct of the accused.
The medical and scientific evidence establishes that the deceased died from multiple knife wounds and was killed on her bed in her premises. She suffered a number of blunt force injuries, at least some of which were defensive, to the back of the hands, and to the arms and legs. There was also a blunt force injury to the back of her head.
The most significant wounds were three of the knife wounds: one to the chest and one to each side of the neck. Any one of those three wounds could have caused death. The combination certainly caused death. The force of the wound to the chest was substantial, piercing the sternum (the breastbone), the heart and entering the lung cavity. It seems that the force of the blow caused the bruising around the wound.
The wound to the left side of the neck, just below the ear, severed the internal jugular vein and the wound to the other side of the neck, severely damaged the larynx, the right jugular vein and the common carotid artery. The wounds caused severe bleeding.
There was a pool of blood on the bed and some minor smearing of blood or spots of blood in a few other locations in the deceased's premises.
Despite his apparent lack of memory of any real events occurring after arrival at the deceased's premises, the accused claimed to have had visions of looking in a mirror and seeing blood stains being sprayed on him and "side-swiping" a car. After the death occurred, the accused had in his possession an abundance of drugs beyond his immediate personal needs, money and the deceased's jewellery.
The evidence leaves me in no doubt that the accused killed the deceased between approximately 10.45am and 2.22pm on 11 April 2013, with a knife inflicting numerous wounds that caused death and also inflicting one or more blunt force injuries.
I am also certain that the accused cleaned most of the deceased's premises, bundled the deceased's body into bed linen and placed her body in the boot of the car.
The severity of the wounds and their number establishes that he inflicted them with an intention to kill or, at least, an intention to cause really serious injury. The accused, according to each of the psychiatric experts who gave evidence, understood the nature and quality of his acts and he understood that he was inflicting the injuries and that they would cause death. I will return to the psychiatric evidence in dealing with the mental illness defence raised by him, although separation of the issues can be somewhat artificial.
As can be seen from the foregoing, I have concluded that the Crown has proved, leaving aside the defence of mental illness for the time being, the elements of this murder. The Crown has satisfied me, beyond reasonable doubt, that the accused stabbed the deceased on 11 April 2013 and that the act of the accused was deliberate, caused the death of the accused, and was inflicted with an intention to kill or cause grievous bodily harm.
For those unfamiliar with the foregoing phraseology, I recite that that the term 'deliberate' is not synonymous with 'planned' or 'intended'. An involuntary act, such as a reflex action, is not deliberate because it is a spontaneous and unintended reflex action, and therefore not willed by the accused. It is the act that must be voluntary and willed, not the consequences.
Further, 'intention' in the phrase 'intention to kill or cause grievous bodily harm' must be the subjective intention of the accused (in this case inferred, at least in part, from the conduct) and is to be differentiated from the notion of a deliberate act, or premeditation, or lack of regret at the eventual result.
As can be seen from the evidence I have referred to, in concluding that all of the elements of murder to be proved by the Crown have been proved beyond reasonable doubt, I have had no regard to the accused's handwritten notes, found by police on his premises. Nor have I, thus far, had regard to the conduct of the accused after 11 April 2013 (except for his explanation in the Electronically Recorded Interview (ERISP)). Further, I have accepted the explanation or version of events given by the accused as to his state of mind and lack of memory as not disproved by the Crown. Nevertheless, the explanation does not exculpate the accused or, in other words, the accused's version of events, even if accurate, is not inconsistent with proof of the elements of murder to the actual standard.
Nevertheless, the handwritten notes and the conduct of the accused after 11 April 2013 are relevant to the defence of mental illness and I will now set out my findings on those matters.

The Handwritten Notes

Police found a series of handwritten notes in the accused's premises. I shall not recite the full contents, but will refer to some. The notes are found in the evidence in a number of exhibits. In original form, they are Exhibits GG, HH, JJ, KK, LL, MM and NN. Photographs (or copies) of some of these notes form part of other exhibits. The police showed the accused photographs of some of the pages during his interview (See ERISP, Exhibit G, and Photographs, Exhibit H).
Photographs 28 and 29 of Exhibit H contain a list of equipment and the advantages and disadvantages seemingly related to three different persons. The list of items (Photograph 28) includes bumbag, mask, "gaffer" tape, pliers, knife, gloves, garbage bags, hacksaw and blades, 5lb hammer, "spade/entrenching tool", bottle of ammonia. The list also includes other items that seem to have been added later, being, batons, "mini blow torch", scarification tools and claw hammer. It is not clear whether the reference to scarification tools was a reference to tools for gardening or maintenance or to something else. (The better location of a legible copy of the note is in Exhibit QQ Tab 86, Photograph 141 of 224).
Importantly, the note ends with the following comment: "Be THOROUGH; Be METHODICAL; And most of all BE CAREFUL". It is a reasonable inference that the list was for equipment to be used in a criminal venture, particularly when taken with other notes. However, it is as consistent with a robbery as it is with a murder.
The qualification to the foregoing is the reference to the knife and the bottle of ammonia, but it is reasonably possible that the list (and those two items) were wholly innocent. Of interest in the notes is that the accused distinguishes between "Equipment" and "Tools". The contents of the note recited above is under a heading "Travel Pack".
Under the heading "Equipment" in other notes, the accused refers to similar goods and also includes axe, sledgehammer, parachute cord, rope, rucksack or large back pack and fishing line (Exhibit QQ, Tab 86, Photograph 151 of 224). The notebook containing the page, the contents of which are recited at [55] and [56], is a notebook entitled "Plans" (the Plans Notebook).
The accused also draws a distinction between "toiletries", "equipment", "tools" and "things for home" (see Exhibit QQ, Tab 86, Photographs 147 of 224 and following).
The Plans Notebook also contains another relevant page (Exhibit QQ, Tab 86, Photograph 140 of 224). It is divided by two hand drawn lines horizontally across the page. The bottom of the page contains the notation "K? Le? Ly?". Each of the three sections of the page above that notation deals respectively with "K", "Le" and "Ly". It is, in part, in the following terms: "If Ly has drugs, has car, but there are time constraints."
Each of the three sections of the notebook page deals plainly with a different person's premises. The premises of "K" has alcohol, allows time and is secluded. The premises of "Le" is near the police station, hard "to get in", but allows time to be taken.
The notebooks are in the accused's handwriting. An expert so testified. The accused accepted these notes were his during the ERISP (at least in relation to the Plans Notebook) and I accept it as his handwriting.
The Crown sought to use the notebooks as proof of planning of the murder or, at least, of a robbery of the deceased. In order to do that, the Crown would need to prove, in my view, beyond reasonable doubt, that "Ly" referred to the deceased. In his ERISP, the accused rejected that proposition by referring to the correct spelling of the deceased's first name as "Linda", not "Lynda".
There is a reasonable hypothesis open inconsistent with "Ly" in the Plans Notebook being a reference to the deceased and I do not accept the Crown's use of the evidence for that purpose. On the other hand, the accused must prove his mental illness of the balance of probabilities. I will return to that issue later in this judgment. It should be noted that the "K", "Le" and "Ly" note is the last page of the notebook and the list is on the back of that page. It looks as if the accused has commenced writing from the back of the book. It follows that it is likely the "K", "Le" and "Ly" note were written first and the list was written for that purpose.
Exhibit GG is relevant to the accused's explanation as to why "Ly" is not a reference to the deceased. Exhibit GG is another notebook. There are many. Each of the notebooks were found in the accused's premises. He has only lived there for about 10 weeks. While the accused could have written the notebooks before he commenced living in those premises, he would then have been required to bring them with him, rendering the notes of continuing relevance to him. Some of those notes are necessarily of recent origin. Exhibit GG is in that category. It consists of two pages of writing.
The first page of Exhibit GG refers to "Thursday night" and in a later entry on that page refers to the falling out with Victoria to which reference has already been made in these reasons. The evidence discloses only one such falling out, which, given the reaction of Victoria Cade and the accused to each other before, after and during her evidence, has been resolved (She blew the accused a kiss and wished him well.)
The next (and only other) page of Exhibit GG is a list of payments or budget items. The list contains a series of entries with corresponding amounts, all of which seem to be subtracted from a total of $540. None of it is particularly relevant except that there is a reference to the name "Lynda" with an amount of $10.00 and to the name "Linda" with an amount of $100.00. There is also an amount seemingly for "Pot" of $50.00. The total of the specified amounts is $385.00 and there is a reference to a need to account for $120, not allocated to a name or an item, and "Tickets" for $5.00, totalling $510.00 (i.e. within budget).
There is no evidence that the accused knew more than one person with a first name pronounced Lynda. The deceased's first name was spelt with an 'i', as Linda. Further, the list seems to bear the hallmarks of an attempt (or an original but altered intention) to add $100 to the $10 originally allocated for "Lynda", which is the amount noted alongside the name "Linda", spelt as the deceased spelt her first name, immediately under the entry "Lynda". Alternatively, the altered intention to add $100 to the amount alongside "Lynda" may be a notation associated with the process of manual addition, namely, "carrying over" a "100" from the "10s" second column in the decimal system.

Events after 11 April 2013

I can be relatively brief in dealing with the events after 11 April 2013. The Crown relies on some of it as evidence of guilt in proof of the elements of the murder. I reject that use. It is akin to consciousness of guilt evidence in circumstances where there is another reasonable hypothesis available inconsistent with the conduct being for the purpose of avoiding detection or detention for this particular offence: Edwards v R (1993) 178 CLR 193 at 211, per Deane, Dawson and Gaudron JJ, relying on Tripod v R (1961) 104 CLR 1 at 10 and Broadhurst v R [1964] AC 441 at 457; and see also FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 at [39] per Hayne J and at [93], [95]-[97] per Crennan and Bell JJ.
Nevertheless, it is also used legitimately by the Crown to undermine the defence of mental illness for which the accused bears the onus. I will discuss that issue later in these reasons. It is necessary to recite some of the facts.
After borrowing Darren Leatham's bike, supra, it seems that the accused "lived rough" and did not return home. On 12 April 2013, the accused visited Thomas Robertson at about 7:00pm or 8:00pm for two to three hours. They both injected "ice" and "hung out together".
On 13 April 2013, the police searched the accused's premises, the results of which are recited elsewhere in these reasons. The accused visited Thomas Robertson again, about the same time as the day before and they again consumed "ice". Mr Robertson, who claims his consumption of drugs did not affect his perception (a claim I regard with incredulity), described the accused as dirtier and more agitated. In each case, it is the accused who supplied the drugs. I accept Mr Robertson's evidence, notwithstanding the caution I have expressed in relation to accepting all his evidence.
The accused requested Mr Robertson to turn the television off when the news began.
On 14 April 2013, police issued a media release in relation to the death of the deceased, identifying the accused as a suspect (or the only suspect).
On 17 April 2013, police saw the accused on the bicycle borrowed from Darren Leatham. They followed him to a set of stables, where he was arrested. There was a struggle during which the accused wielded a knife. On initial questioning at the scene, the accused denied that he was Colin Farrow and said his name was Peter. He suggested that he believed he was being stopped for not wearing a helmet.
The police escorted the accused to the police station and he participated in an ERISP. There was also a less formal interview before the ERISP that was sound recorded.

The ERISP

Some minor aspects of the ERISP have already been the subject of mention in these reasons. The ERISP commenced on 17 April 2013 at 8.15pm and concluded on 18 April 2013 at 1.34am. The electronic recording was played in Court and is therefore known to those members of the public who were in attendance. The recording and the transcript thereof is Exhibit G in the proceedings and it is unnecessary to reproduce lengthy sections of it.
There are a number of matters however that do require comment. Notwithstanding its length and the time at which it ended, the accused did not seem to be under any disadvantages as a consequence. The accused was accompanied at all times by a support person and, ultimately, was capable (and did) indicate when he wanted to end the interview.
As to the events on 11 April 2013, the accused maintained that he had no recollection of being in the deceased's unit or what occurred in the unit. Nevertheless he recalled (Q. 60-66) that he went to the deceased's premises six days earlier (i.e. on 11 April) and volunteered that he had been "feeling a bit paranoid about her" (Q. 64).
His feeling of what he says was paranoia related to his falling out with her, described earlier in these reasons, and the suggestion made to him that "they might give me a hotshot and…I've been a bit wary about going to Linda's". When asked, upon giving that answer, what happened, the accused replied in the following terms: "Honestly, honestly, this is what I'm gunna say. I think I did it. I really do. I think I did it, eh. I'm not, I don't know for sure but I really do think I did it. I had um, I had cuts on places that I couldn't explain. I've had, I've had stuff that I shouldn't have had and some of it was stupid stuff that I threw away the other day, stuff that I know Linda would never give me willingly, never. I know she wouldn't…Um, I remember going to um, see I remember, I remember getting a pushbike off someone, borrowing a pushbike off someone and I remember riding to…my mate's in town and that's it. I'm pretty sure I did it. I'm sure I did it."
The foregoing is not an admission of the fact that the accused had committed the murder. Rather, it is an acknowledgment or conclusion based upon what the accused knew. I have so treated it in relation to the murder. As will be seen from the discussion later in these reasons, I consider the answer of some significance, albeit not conclusive, that the alleged feelings of paranoia and the conclusions reached are volunteered at the very outset of the ERISP.
Further, on 17 to 18 April, during the ERISP, the accused displays a demeanour which is wholly rational and not the least delusional. Notwithstanding his lack of memory as to the whereabouts of the clothing that he was wearing earlier in the day on 11 April, he has a distinct recollection that he took no weapons to Linda's house (Q. 136, 137).
During the course of the ERISP, the accused complains about his shoulder, which is eventually treated. I am satisfied that his shoulder was hurting, although I am not convinced that he was in quite as much pain as he sought to indicate. At Q. 209 and 212, the accused answers a question asking for more detail about what he was saying with the following words: "I don't know O.K…Like the flashbacks or nightmares or whatever they were coupled with being arrested for her murder today means that that stuff was real. That stuff that I was dreaming and all of that stuff and thinking that I wasn't sure if it was real, it was real. I did it. It was real. I wouldn't be here if it wasn't real…I have what I thought were nightmares and flashbacks of being covered in blood. I have…recollections…of sideswiping a car in somebody's car and nobody lends me their car to drive. I have in my bum bag full of jewellery that Linda I know owned and would not give me, would not sell to me and would not swap for me and the only way I could either take it would be to steal it which I would not have an opportunity to do so because I'm always in her presence from the moment I walk into her house so there's only one way I could logically have gotten hold of that jewellery. That is by killing her and taking it."
As earlier stated, apart from the apparent loss of memory, the accused was totally rational during the course of the whole of the interview, so much so that at Q. 234, having admitted that he went and bought pot he volunteered that he was not going to tell the police where from. He had a keen appreciation of what he could and could not say.
The accused informed the police that he would have gone to the deceased's house to buy drugs and that he knows two crystal dealers (a reference to sellers of crystal methylamphetamine or ice). The other dealer sells bad quality ice. Nevertheless, he continued to deny ever having thoughts about harming the deceased but accepts that the note shown to him (and recited earlier in these reasons) "sounds like a list of murder tools" (Q, 798). He also admits to having more money than he ordinarily possesses with which he bought a greater amount of drugs, not necessarily "ice", than ordinarily he would be able to buy. The accused uses that fact to assert that he did not consider the possession of that money "real" and if he had thought that he had that much money he would have gone to Western Australia and not stayed around Wollongong smoking pot with others (Q. 308-309).
When asked about the cleaning up of the deceased's premises, he dismisses that as not being done properly or being "a very bad job" (Q. 835-836). The accused denies having any knowledge of attending Bunnings or buying the pick and shovel or how it was his clothing changed (Q. 840 and following). Nor does he have, according to his answers, any recollection of the driving of the car and it being dumped in Corrimal. Nevertheless, he can remember the bum bag and describes its size with his hands, indicating about 20cm or 8 inches.
At Q. 828, 829 and 830, he denied going to the deceased's premises with the intention of killing her. He denied any knowledge of binding her with the rope and gaffe tape and denied any memory of the stabbing but remembered, somewhat vaguely, "seeing blood on my face and everywhere". At Q. 843 and following, he is clear as to the rights he wishes to assert and assertive of them.
I am not satisfied, even on the balance of probabilities, that the accused has a memory loss to the extent that he maintains. Nevertheless, for the purpose of the reasons that follow I will accept, without deciding that such memory that he has lost is genuine. During his interview, recorded in the ERISP, the accused is clear and articulate. At times, he gives the impression that he is deliberately dissembling, seeking to give the impression of honesty in answering and lack of memory. He is certain as to his lack of intention to harm the deceased but does not remember harming the deceased and he is certain that he did not take a weapon to the premises.

Psychiatric Evidence

The defence case on mental illness relies upon Psychiatric Reports from Dr Bruce Westmore of 16 September 2013, 29 March 2014, 23 August 2014 and 15 November 2014. Those Reports are Exhibit 1, 2, 3 and 4 in the proceedings. Dr Westmore was qualified by the accused. The Crown relies upon the evidence of Professor Greenberg of 26 April 2014 (Exhibit X in the proceedings). Professor Greenberg is qualified by the Crown. Each of Dr Westmore and Professor Greenberg are well-known and well-respected forensic psychiatrists who have given evidence in accordance with the expert code of conduct and both explain the basis upon which their opinion has been derived. Each of the experts was cross-examined.
There are a number of fundamental issues on which the experts differ and some matters upon which they agree. To the extent that the accused has a memory loss, each of the experts suggests that it may be attributable to Post Traumatic Stress Disorder he suffered from the murder itself and that, as a consequence, an absence of memory of committing the murder or parts of it may be a result of the very trauma of the murder itself.
Otherwise, it is fair to say that the fundamental difference between them relates to their assessment of the genuineness of the accused. Dr Westmore has seen the accused more often than Professor Greenberg. However, Dr Westmore cannot recall seeing the recording of the ERISP, as distinct from reading the transcript. Ordinarily, Dr Westmore's practice would be to view the ERISP and there seems to be no reason why he did not on this occasion, but he was not questioned in that respect.
Each of the experts, Dr Westmore and Professor Greenberg, accepts that the accused understood the nature and quality of the act in which he was engaged, when he was stabbing the victim. The difference in their diagnosis relates to the existence of a particular psychosis and the basis for that diagnosis.
On examination by Dr Westmore, the accused's understanding of his "paranoia" was more definite than it was during the course of the ERISP. During the ERISP, as earlier recited, he suggested that he was "a bit paranoid" and "a bit wary" and that he lapsed in and out of paranoia. To Dr Westmore, the accused indicated that he had a belief that the deceased was going to give him "a hot shot" and that he would be left "a vegetable or dead in the park" and that his "thoughts had changed from 'the victim being a friend' and the 'victim giving me a hot'". These thoughts and expressions are far more definite than anything expressed on 17 April 2013.
Dr Westmore sets out the accused's medical history including past treatment including psychiatric care. He was discharged from a hospital in Orange and was advised to stay off drugs and continue medication. Instead, the accused discontinued his medication and recommenced drug use.
Dr Westmore reviewed the transcript of the ERISP, noting certain questions and answers and noted the referral by the RAI Team on 21 April 2013 (that is after the accused's arrest), that he required an urgent referral to a psychiatrist, who subsequently examined the accused and recorded that the accused was "extremely paranoid" (a more intense view than he indicated during the ERISP he had been experiencing over the previous one or two months). The psychiatrist did not come to a definite view as to a prognosis but, nevertheless, treated him with medication and albeit on an interim basis indicated that there may be intoxication or substance induced psychosis. Dr Westmore indicates in his Report (Exhibit 1) that he did not look at all of the documents with which he was provided and the recording of the ERISP may be in that category.
Dr Westmore diagnoses a paranoid psychosis as the accused Axis I in the following terms: "AXIS I - Paranoid psychosis - The differential diagnosis would include a primary process illness such as schizophrenia with that condition being aggravated and/or exacerbated by his use of illicit drugs, particularly the substance, Crystal Meth. The differential diagnosis would include a drug induced psychosis. -Acute Stress Disorder secondary to the act of violence. AXIS II I note the nature and extent of his Criminal Antecedence. He suffers from an Antisocial Personality Disorder, although some of his offending behaviour is likely to have occurred in the context of his substance abuse problems. AXIS III I note a history of head injuries but that is not, in my view, relevant to the matters now before the court. AXIS IV He faces multiple stressors associated with his incarceration. AXIS V It is probable this man has functioned well below his potential due to his substance abuse and mental illness problems."
Dr Westmore's Report concludes with the following paragraphs: "I believe Mr Farrow could raise the defence of mental illness in relation to the charge of murder. He was, at the relevant time, suffering from a disease of the mind (either a paranoid schizophrenic illness or a severe drug induced psychosis). Both of these conditions would represent a disease of the mind and he would have been totally deprived of his capacity to know that he ought not to do the act. Based on his history, he was delusionally driven in relation to the deceased, believing that she, and possibly others were conspiring to give him a 'hot shot', which would result either in his death or which would make him a 'vegetable'. Since receiving appropriate medical care, his acute symptoms have started to resolve and he has achieved some increased insight into his previous paranoid and psychotic state. The illness is however not in remission."
The subsequent Reports support the foregoing opinion and refer to a review by the Psychiatric Registrar in Justice Health on 2 July 2013 in which a differential diagnosis including paranoid schizophrenia and drug induced psychosis was identified. That same doctor took the view that the accused's psychosis had resolved on 7 August 2013.
A further history was obtained in relation to a report by a psychiatrist on 5 November 2013 who formed the conclusion that the accused suffered "likely chronic paranoid schizophrenia complicated by substance use".
I turn then to the opinion of Professor Greenberg. At pg. 3 of the Report, Professor Greenberg recites a part of the history given to him by the accused in the following terms: "Mr Farrow reports each day blended with the other days because he was using illicit substances. He states that the last few days prior to the alleged offence his paranoia got 'over the edge'. I asked Mr Farrow about the day of the alleged offence, namely 11 April 2013. He states he has no recall of that specific day but thinks he caught a train as per usual to his drug dealer, Linda Stevens. He reports all he can remember is standing in front of a sink and in the mirror he had blood all of his face and chest. He stated that his only recall is a flashback of seeing himself in a mirror soaked with blood. This flashback occurred a few days prior to his arrest. He claims he does not know when the memory actually occurred. Mr Farrow also reports he also has a memory of side swiping a car but only recalled that when the police confronted him with his reported erratic driving on that day."
There are other recollections in the history given to Professor Greenberg which it is unnecessary to recite. I have recited the foregoing because it is, as a matter of substance, inconsistent with the answers given in the ERISP. The answer in the ERISP at Q. 60 to 66 were, to the extent that they were a recollection of what occurred on 11 April 2013, said with confidence and answered quickly. First, there is the statement that he remembers some bits of it although he said to Professor Greenberg that he remembered none of it. Secondly, his answer at Q. 63 reads as if there were some hesitation but, in the recording, there is little or no hesitation and the first part of the answer that the accused "went to see Linda" does not, in the recording, seem to depend upon the proposition that he sees Linda most days. In fact, he did not see Linda the day earlier on the Wednesday.
Further, the answer is expressly inconsistent with his stated recollection that he did not have an intention to kill when he arrived at Linda's on 11 April 2013 and did not have a weapon with him.
Under the heading "DIAGNOSIS", Professor Greenberg states: "1. History of Chronic Poly-substance Dependence. 2. History of chronic periods of Substance Induced Intoxication. 3. History of Psychotic symptoms (query Chronic Drug Induced Psychosis; query underlying Schizophrenic Disorder). 4. Query symptoms of Post Traumatic Stress Disorder. 5. Query symptoms of Gambling Disorder."
Professor Greenberg suggests that the accused would qualify for a diagnosis of cannabis and/or amphetamine intoxication at various times while using these substances and also for a diagnosis of Substance Induced Psychotic Disorder, which ordinarily means that a sufferer can represent with delusions and hallucinations where there is a loss of reality testing. The Professor explains that delusions are fixed, unshakeable, false beliefs whilst hallucinations are false perceptions which are not a distortion or misinterpretation but something experienced as real.
Further Professor Greenberg suggests that the accused, "on balance probably has an element of psychogenic amnesia for the time of these offences and possibly an element malingering for the period of writing the notebook. His chronic use of crystal methylamphetamines and cannabis would also impair memory but not to the extent of such a selective period of amnesia related specifically to the alleged offences" (pg. 13, Exhibit X).
The Professor comments on the accused's retrospective amnesia for the time period prior to the trauma which extends further back some days or weeks prior to the alleged offences.
Professor Greenberg goes on to explain his view as to the genuineness of the paranoia suffered by the accused in the following terms: "In true psychosis the individual loses touch with reality and cannot distinguish between psychotic (false) symptoms such as paranoia and true reality. In other words they perceive the hallucinations and delusions as real and these experiences are real (only to them). In my opinion, Mr Farrow [the accused] likely had a degree of insight into his perceptual disturbances and this level of insight waxed and waned depending on his use of illicit substances. Mr Farrow documented or reported he had some insight into his psychotic symptoms. [The Professor cites examples from the notebook.] These statements imply that he had some insight into the effects of the illicit substances at the time he wrote these words and that he was experiencing 'hallucinations' rather than his perception that the 'voices' were real. … Mr Farrow's mental state at the time of the alleged offence probably was a combination of substance intoxication and substance induced perceptual symptoms with his history of chronic and persistent use of substances over several years. It is possible that he may have had a disease of the mind, namely an acute or chronic substance induced psychosis (and/or substance intoxication disorder) but the degree or intensity of his perceptual belief system may have not been a constant variable and there may have been fluctuations in his level of understanding of his paranoid ideation or paranoid systems at that time period. The mental illness defence of whether Mr Farrow has a defect of reason caused by a disease of the mind is to my mind thrown into doubt. Mr Farrow cannot recall his mental state, and/or behaviour at the time of the alleged offences. He can give no account of himself during the time period of the deceased death, but claims he is sure he is responsible. The view of any forensic psychiatrists is therefore 'a hypothesis' which is based on his historical history and current psychiatric status as well as the available information from the police brief."
Professor Greenberg then refers to the ERISP and in particular questions and answers relating to whether the notebook reads like a list of murder tools (reference to which has been made earlier) evidencing a suggestion of planning, forethought and some prior reasoning.
Professor Greenberg also refers to the theft of the jewellery and other items at the time of or after the killing of the deceased. Professor Greenberg reasons that the accused's reasoning is therefore the stealing of the victim's jewellery rather than protecting himself from a threat brought about by his apparent paranoid delusions. The Professor also refers to the accused's purchase of the pick and shovel with the apparent intention of burying the body and the changing of his clothes and the cleaning of premises as being evidence of the accused's perception of wrongdoing.
Fundamentally, Professor Greenberg is prepared to accept that the accused suffered a degree of paranoia but not of such intensity that he lost all touch with reality and concludes that his actions were more likely related to his severe drug addiction and the need to obtain further drug supplies but concedes that his likely drug induced paranoid thoughts and level of intoxication may have played a limited role in the alleged offence.
As a consequence of the foregoing there are significant differences between two expert witnesses, each of whom is a renowned specialist in forensic psychology and/or psychiatry and has specialised knowledge based upon their training, study and experience. Unlike non-expert witnesses, such experts are entitled to express opinions in the particular areas of their expertise. The value of their opinion very much depends upon the material that they have seen or read; the accuracy of the material; and the opinion of the Court as to whether to accept the evidence which the expert has accepted and relied upon providing their opinion.
It would be difficult to differentiate between Professor Greenberg, on the one hand, and Dr Westmore, on the other, based upon the level and degree of their experience, training and study. These are each experts who are, as earlier stated, extremely experienced in forensic psychiatry. Nevertheless, the expert evidence is admitted to provide me with the medical and psychiatric information and opinions within the witnesses' expertise and beyond the expertise of the Court.
After giving each opinion careful consideration, it is for me to accept the evidence or not accept it, provided it is given careful consideration, and the non-acceptance of any aspect of the opinion evidence is rationally based. Fundamental in that approach may be whether the party with the onus of proof has satisfied the Court to the standard necessary and upon which that party relies as part of their case.
Professor Greenberg regards as significant that there was evidence of planning before the killing and the conduct of the accused after the killing as well as the "selective" nature of the memory loss associated with the killing. Further, Professor Greenberg takes the view that a person who understands or appreciates that he was being "paranoid" is not usually truly "paranoid", because paranoia involves a belief in the reality of that which is feared as the threat.
As a consequence, in relation to the last mentioned matter, Professor Greenberg sees the accused's capacity to differentiate between that which is real and that which is not as significant and his insight into the fact that he is or was, in relation to some beliefs, being paranoid.
In relation to the last mentioned aspect, Dr Westmore expresses the view that many paranoid schizophrenics will have, after the event, a degree of insight into the lack of reality of the threats that they have perceived and, therefore, the issue raised by Professor Greenberg is not in his view as significant as Professor Greenberg suggests.
I take the view, there is considerable force in the opinion of both Professor Greenberg and Dr Westmore. The difference between them is not quite as wide as the foregoing summary suggests. Professor Greenberg makes it clear that the insight which he attributes to the theft and other matters makes it less likely that the accused was truly paranoid. Dr Westmore takes the view that such insight can be held by someone suffering from delusional psychosis. I do not understand Professor Greenberg to suggest that it is impossible for a person with insight to be suffering such a psychosis. Professor Greenberg is simply remarking that the existence of such insight makes that diagnosis less likely. In that regard, the experts are in agreement that the suggested insight is not conclusive, but they differ on the effect of insight on the likelihood of the accused suffering a psychosis of the requisite kind.
Similarly, Dr Westmore looks at the planning prior to the event as not necessarily inconsistent with the existence of paranoid delusions. Professor Greenberg, again, treats these as factors to be weighed in determining the likely operating factors on the accused. The same is true of the conduct of the accused after the death of the deceased.

Consideration of Mental Illness Defence

As earlier indicated, a verdict of not guilty by reason of mental illness has been sought by the accused. Mental illness is a true defence and the onus of proof is on the accused to satisfy the Court of the factors, on the balance of probabilities.
The question that must be considered in determining whether a mental illness defence has been established is whether, at the time of the stabbing, the accused was mentally ill so as not to be responsible according to law. As earlier indicated, the onus, once raised, is borne by the accused to prove the defence on the balance of probabilities. In other words, the accused must establish to the Court that it is more probable than not that the accused was mentally ill at the time of the stabbing. If that onus is satisfied then the accused is entitled to a verdict of not guilty by reason of mental illness and one or other of the orders previously mentioned.
In that determination, one considers the mind of the accused at the time of the stabbing, not at the time of the ERISP or indeed when the accused is before the Court or any other time. In order to establish mental illness, the accused must establish that he has a disease of the mind which has affected his reason in a way that the accused did not appreciate the nature and quality of the physical act in which he was engaged or that the act he was performing was not wrong.
A disease of the mind certainly includes a psychosis. Having said that, one can have a temporary disease of the mind. In these proceedings the issue is whether the psychosis from which the accused suffered, assuming, for present purposes, that he suffered such a psychosis, produced the kind of defect of reasoning necessary to give rise to the defence.
I am prepared to accept, on the balance of probabilities, that the accused has an ongoing psychosis. Certainly, now, he suffers, to some extent from Post Traumatic Stress Disorder. I am also of a view that he has satisfied the lower burden associated with the balance of probabilities, that he has or had, at the time of the stabbing, a psychosis of some kind. I will return to the nature of the psychosis.
Nevertheless, it is not the existence of the psychosis which ultimately satisfies the Court that the defence has been made out. The Court must be satisfied, albeit on the lower standard of balance of probabilities, that there was a defect of reason such that he did not understand the nature and quality of the act or understand that it was wrong according to the ordinary standards of reasonable people.
Each of the experts agrees with the other that the accused understood the nature and quality of the act of stabbing the deceased. The accused understood he was stabbing the deceased; he understood that the stabbing was likely to kill her or to cause her grievous bodily harm (a really serious injury) and that he intended to kill or cause grievous bodily harm. The ultimate and remaining question is whether the accused satisfied me, on the balance of probabilities, that he did not understand that the act he was engaged in was wrong by the ordinary standards of reasonable people.
I have earlier in these reasons made clear that the notepad and the conduct of the accused after the stabbing could not be used by the Crown to prove either planning of a murder or a consciousness of guilt. However, we are not now dealing with the elements of the murder charge, proof of which lies on the Crown beyond a reasonable doubt. We are now dealing with the accused's case that he was mentally ill, delusional and paranoid.
In my view, the notes to which reference has been made in these reasons significantly undermine the case that the accused puts that his conduct was irrational and spontaneous. While the notes are consistent with the planning of a robbery, when one adds to the rational decision to rob the deceased, the understanding of the accused that to come to a view rationally that he was going to rob the accused involved the necessary consequence that he would "have to kill her", the lack of planning and premeditation and irrationality suggested by the accused is significantly undermined. The reference to the view that he would have "to kill her and take it" is a reference to question and answer 212 in the ERISP.
Further, after the accused stabbed the deceased he cleaned the house of all but the pool of the deceased's blood on her bed and one or two smears of her blood. He cleaned the house so thoroughly that there was no DNA or other material associating him with the murder. He destroyed the deceased's clothes. He destroyed his own clothes. He hid the knife such that it cannot now be found. The accused then bundled the deceased into the boot of the car and drove her to a location, having bought a shovel and pick, with the likely intention to bury her.
The accused then went into hiding. He did not return to his own home but lived on the street. When he was at a friend's place, he did not want the friend watching the news in his presence; he sought to escape from the police when chased and to resist arrest when caught. The foregoing are all the hallmarks of a person who understands he has done wrong. Dr Westmore seeks to differentiate legal wrong from moral wrong. Dr Westmore is theoretically accurate. However there is no evidence or indication in any material surrounding these events that the accused differentiated legal and moral wrong, or that he did not see his conduct as morally wrong.
Ultimately, the issue between the experts and the question of mental illness is determined, in my view, on the burden of proof. The accused has not satisfied the Court, even on the balance of probabilities, that at the time he committed this offence his disease of mind, assuming for that purpose that there was a psychosis, so affected his reasoning that he did not understand that what he was doing was wrong by the ordinary standards of reasonable people in our community.
If I were required to decide which of the experts I prefer, I make it clear that I prefer the opinion of Professor Greenberg. I do so because he has examined more of the material; he remembers viewing the recording of the ERISP; and, like him, I do not accept the veracity of the accused in the answers he gave during the ERISP. In my view, the answers in the ERISP, as earlier stated, disclose a measure of deliberate dissembling seeking to give the impression of honesty in answering and a lack of memory of the incidents in question. I am not, by that, suggesting that the accused does not suffer a psychosis. I have little doubt that the long term effect of the drugs he was taking had that affect. I do not accept, however, that he was so delusional at the time of the stabbing that it affected his reasoning in the way necessary to establish a defence of mental illness, namely, that it was more probable than not that he did not understand that which he was doing was wrong.
For the foregoing reasons, I conclude that the mental illness defence raised by the accused has not been established.
There is a difference between mental illness and substantial impairment. The accused does not seek to raise substantial impairment by abnormality of mind as a partial defence to the murder. I do not therefore deal with it at length.
In my opinion, the decision of defence counsel not to raise substantial impairment was the correct one. The accused has not shown an inability to resist impulse and the other acts of diminished responsibility have been dealt with by me by dealing with the factors relating to the mental illness defence.
For all of the foregoing reasons, the accused has not shown that it is more probable than not that he did not know or understand the physical nature or quality of the act of stabbing the deceased. Nor has the accused shown that he did not know according to the ordinary standards of reasonable people in our community that the act was wrong. As a consequence, the defence of mental illness fails. Otherwise I have concluded that the Crown has proved beyond reasonable doubt each of the elements of the crime of murder.
As a consequence of the foregoing, on the charge that on 11 April 2013 Colin Maxwell Farrow murdered Linda Stevens, I find the accused guilty.

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