R v Cottam

District Court of NSW|2019-11-12|Before: Health Records J

Background history

The accused reported to Dr Allnutt that he was born in London and came to Australia in 1987 at the age of 1 year. He attended school until year 10. He described himself as an average student. He reported that he sometimes engaged in truancy and was also disruptive. He was asked to leave school because of missing school and his behaviour.
He reported that he was the youngest of 3 children in his family. He reported a complicated relationship with his parents in his teenage years.
After leaving school he studied fine arts for about 2 years. He went to Dubai with his family returning to Australia to study a degree in visual arts with the intention of becoming high school teacher.
He finished that degree in 2010 and then did casual work on the Central Coast for about 4 years.
He commenced his job as a security guard from 2016.
Dr Allnutt stated as follows: "He said he had come across similar people to the complainant over the years. In his new job at first, he was "okay"; he found work okay and enjoyed it, but when the complainant came along, he said, "It's as if my world went upside down… as I perceived it, when they (people with obesity) appear it's like a dark cloud just goes over everything. All of a sudden it all goes wrong. It's as if their presence makes everyone not like you. It's as if they chase everyone into thinking that you are bad. By the end of it all they have outdone you, really angered you and made you not want to return to that place. The more you fight against it, the worse it is. It's all deliberate to make that happen because they were bullied at school and are getting it off their chest to put their badness in someone. Maybe it's just psychological… My best option is to leave."
Dr Allnutt reviewed the diary entries written by the accused. He also reviewed the documentation prepared by the family.
Dr Allnutt noted that there were general practitioner notes dated 28 May 2016 noting that the accused was aggressive and paranoid and had schizoid personality. He did not want to be compliant with his parents and noted the parents lives might be at risk.

Interview with the accused on 4 February 2019

Dr Allnutt noted that since the accused had last seen him he had been taking medication at night (Aripiprazole). He was also seeing a psychiatrist who is said had diagnosed him with schizophrenia.
During this interview Dr Allnutt sought clarification from the accused in relation to his mental state at the time of the alleged offending.
Dr Allnutt stated as follows: "…He stated in the few years prior to the alleged offending he had first seen a demon. His car had broken down and he saw a demon in the passenger seat. In his mind at the time, he had said to the demon that he did not want to see him again. This experience at that stage had reminded him of a Bruce Lee movie where it had been suggested that Bruce Lee was also haunted by demons his whole life. He said every year since, leading up on the alleged offending, on occasions he would see a different kind of a demon from a videogame around the time he was going to sleep. He said at the material time preceeding the incident and more proximal to the incident, while at work, a demon at work "twirled" into his body and took control of his body around the time that he opened the gate for the complainant and then he heard a voice of the demon saying "get your knife out" twice and then he heard the demon say "do it". He said at that point "I lost control of anything and did it". When I asked him why he had not told me about the demon during my last interview with him, he said that the last time he spoke to me he was too embarrassed to open up to anyone about it. At the material time of the incident, almost immediately after striking the complainant with the knife, he said he felt sorry for the complainant and the demon vanished." Dr Allnutt noted that the accused said he had a problem with people who had been mean to him. Specifically, in relation to the complainant he said, "he had a history in the past of being abused by a person that had been rude to him and he saw this person in the complainant." The accused reported that the complainant was "psychologically bullying me on every shift", he said it "built up each time I saw him", "it felt like he was stirring me up and standing over me". He said that this must have "triggered the demon".
In relation to the "demon", Dr Allnutt noted that the accused told him as follows: "…"it was already armed because I was armed, I had bought a weapon for self-defence ". Further, he had told Dr Allnutt: "He said when the demon was in him, he knew someone was coming but was not sure who it was and when he opened the gate, he realised it was the complainant. The demon voice then said, "get your knife out". The demon voice then said, "do it" and he stated, "I struck his throat". He said "it seemed like a way of getting my revenge on how much he was bullying me. The demon was defending me. I lost control of my innocence. It was my way of vengeance". At the time he felt that the (sic) lacked control of his behaviour."
Dr Allnutt further noted that the accused reported that he had difficulty going to sleep, he had reduced energy and motivation and self-esteem, he had suicidal thoughts that occurred on a daily basis but denied any particular plan or intent. He was not experiencing any significant voices, visions, tastes or smells. Dr Allnutt stated: "…He still believed that the complainant had been bullying him, but he added that there was a small chance that this belief was based on a misperception and if it was, he was sorry for that. He stated that it seemed like at the time of the alleged offending he may have hallucinated, but he was not sure about this. He stated that his concern about obese people had "blown over" but it was "still there, that feeling if the person is bullying me".

Mental status examination

Dr Allnutt noted that on the first occasion he saw the accused, he maintained "odd beliefs relating to obese people conspiring to harm him", which, given the nature of his beliefs, Dr Allnutt considered were probably delusional in nature .
On the second occasion Dr Allnutt saw the accused he indicated that he reported depressive and anxiety symptoms and there was suicidal ideation but not aggressive. It was further noted, "His odd beliefs relating to obese people conspiring to harm him, had attenuated but persisted. He denied auditory or visual hallucinations."

Opinion

Dr Allnutt was of the opinion that the accused suffers from paranoid schizophrenia. The differential diagnosis would include a schizoid or schizotypal personality disorder. Specifically, Dr Allnutt stated as follows: "He describes a belief that people who have obesity have deleterious effect on his ability to pursue intimate relationships, intentionally seek to cause him distress, harass him. This belief system is fixed, and held with conviction, his reasons for holding this belief lack rationality and it is my view consistent with a delusional belief. He also describes unusual auditory experiences related to music. His diary entries, while difficult to read, refer to unusual thought content of persecutory nature, he describes loud thoughts and referential ideas. His family members describe poor self-care, poor social judgement, social withdrawal, concern about his mental state, and observing him appearing to respond to auditory hallucinations."

Mental state at the time of the alleged offending

In relation to the accused mental state at the time of the alleged offending, Dr Allnutt stated as follows: "In my view, at the material time of the alleged offending your client was suffering from a "disease of the mind", that is that he was suffering active symptoms of a paranoid schizophrenia in the form of a psychotic mental state characterised by delusional beliefs of experiences of external control, and ideas of reference, persecutory ideation of a delusional nature and auditory hallucinations. As a consequence of his psychotic symptoms he was experiencing a "defect in reason" in that he was incapable of distinguishing between external reality and his internal psychotic experiences which then impacted on his reasoning and judgment with regard to what he perceived was the complainant's intent and behaviour towards him. As a consequence of his defect of reason, in my view he was "unable to know the wrongfulness of his actions" in a moral sense. He had incorporated the complainant into a delusional belief system which would have affected his capacity to rationally interpret the motivations behind behaviours on the part of the complainant, believing his (sic) complainant to be purposefully persecuting him and posing a threat to him. At the material time he also describes feeling as if he was being controlled by a demon that twirled into him, that in my view would have undermined capacity for self-control and along with this, capacity for rational thought and moral thought in relation to the alleged offence. He would have been incapable of "reasoning with a moderate degree of sense and composure" in relation to wrongfulness' of the alleged offending behaviour. He would have maintained capacity to know the nature and quality of his actions however."

Additional report of Dr Allnutt 10 April 2019

Dr Allnutt was specifically requested to consider QA166 and 167 in the accused ERISP. Those questions are as follows: Q 166 - Prior to stabbing Peter today did you think what you were about to do was wrong? A 166 - Sure. Q 167 - Alright, and why do you think it would've been wrong? A 167 - well, because you wouldn't like that to happen to you, I guess.
Dr Allnutt stated that those questions did not lead him to alter his opinion with regard to wrongfulness. Specifically, he stated as follows: "Based on information provided to me your client had incorporated the complainant into a persecutory delusional belief system. He believed that at the time his alleged offending behaviour was self-defence; also, at the time he described something twirling into him. He would have been compromised in his capacity to rationally interpret the motivations and intentions behind the behaviours on behalf of the complainant. As a result of his delusional belief that the complainant was persecuting him, he applied an irrational interpretation to the situation and distorted his perception of events; this distortion of the reality to the situation would have influenced his decision making with regard to eh (sic) his behaviour towards the victim including moral decision making and as a result he found justification in acting in the manner that he did at the material time that the alleged offence occurred."
Dr Allnutt concluded as follows: "I am of the view that despite the comments you refer to in the ERISP-that (as) a result of his illness (he) would have been unable to reason about the matter of wrongfulness with a moderate degree of sense and composure, at the material time of the alleged offence".

Additional report of Dr Allnutt 31 July 2019

Dr Allnutt conducted a further examination of the accused on 26 June 2019. He was of the opinion that there had been an improvement in the accused mental state.
Dr Allnutt stated as follows: "He has rescinded his delusional conviction about obese people and conspiracy by the victim against him. He experiences intermittent and vague brief auditory phenomena. He does not manifest his difficulties with communication as he did before and demonstrates insight into his mental condition. I believe your client has responded to antipsychotic medication, but continues to manifest mild residual psychotic symptoms which are relatively fleeting. Importantly, my impression is that he has rescinded attachment to those beliefs or conviction about those beliefs or need to act on any aspect of those beliefs. I would now confirm a diagnosis of paranoid schizophrenia."
Dr Allnutt included a proposed Management plan for the treatment of the accused should he be released from custody.

Additional report of Dr Allnutt 6 August 2019

In his final report Dr Allnutt clarified his position in relation to ongoing risk with respect to the accused. Dr Allnutt stated as follows: "Given the reduction in his symptomology, having regard to the loading of risk factors, I would have regarded him as being in a group of mentally disordered offenders currently at low moderate risk of future aggression, assuming he adheres to his management plan including complying with his medication regime."

Report of Dr Samuels dated 30 May 2019

Dr Samuels, Consultant Psychiatrist conducted an examination of the accused by audiovisual link on 20 May 2019.
Dr Samuels reviewed the report of Dr Allnutt dated 6 February 2019. Relevantly, in addition to the observations of Dr Allnutt, he was of the following opinion: 1. That during the ERISP "..the accused appeared to be quite thought disordered at times e.g. when asked in question 176 about the reference to, "monkey" and to express frank delusions of reference e.g. "pulled out keys in an offensive gesture" (question 40) and "opening his mouth and raising his eyebrows" question 58. He also in question 178 alluded to the film Waterboy, his thought processes were hard to follow but he did conclude with the statement, "I cannot believe why I am bunched up with the wrong people all the time from my view"." 2. That during the ERISP "…the striking features are his odd affect, poor eye contact, mannerisms, facial twitching, posturing, his slow deliberate answering of questions, monotonous tone to his voice and at times frank thought disorder e.g. at 48 minutes (question 178) "…in a nutshell… he reminds me of someone else… like that film Waterboy… see that person is another person…. perhaps you cant really say if I had not met that other person… I may not have done anything at all…" 3. Justice Health notes reveal that the accused "…was psychotic at the time of reception (18/10/2018) and that his symptoms really did not settle until 8 March 2019 when symptoms of psychosis are noted to be resolving." 4. "On 23 October 2018 he was seen by a psychiatrist. Consideration was given to psychosis and Autism Spectrum Disorder. Corroborative history from his father revealed traumatic childhood events, prescription of Roaccutane for acne and possible personality change in early adolescence and a pattern of increasing isolation." 5. "On 31 December 2018 the accused was seen by A. Simmonelli. Depression and delusional beliefs around obese people were noted and Abilify (aripiprazole) antipsychotic increased to 15 mg." 7. "He was then transferred to the Mental Health Screening Unit on 19 February 2019 and acknowledged referential delusions from television. Eye contact was still noted to be poor." 8. "On 1 March 2019 Dr Smith noted psychosis to be resolving."
In relation to the accused report of his psychiatric history, Dr Samuels noted the following: "He said that when he was living in Gosford, he was hearing voices and seeing "evil spirits". He said, "I didn't want to tell people about it. I grinned and beared it, it was a scary period." Mr Cottam said he did see his GP in 2013 or 2014 but Mr Cottam did not believe that he was mentally ill. He said that his parents told him the local GP thought he might have had schizophrenia. Mr Cottam feels that his problems really began in 2016. He said nothing really set it off: he had just gotten a job as a security guard and he quite liked the job."
The accused reported to Dr Samuels that schizophrenia runs in the family. His father's mother had it, as did one of her sisters. I note that when examined by Dr Allnutt in November and December 2018, the accused reported that he was unaware a family history of mental illness at that time.
The accused told Dr Samuels that at the time of the offence he had a psychotic episode. He said: "I saw a demon enter my body. Only when stabbing him I realised what happened. I felt sorry for him and went to wash my hands, I was going to call an ambulance. I can only stress how sorry I am to Peter and his family and all the grief I caused. I'm angry that I wasn't diagnosed and on medication and that incident wouldn't have happened."
He further said: "I was paranoid, I thought he was going to kill me. When he got the key I thought he was going to stab me. I didn't know you weren't allowed to carry a knife…".
Upon mental state examination, Dr Samuels noted the following: "His affect was blunted but he spoke quite freely and coherently. He said his mood was fine although some days he feels a little depressed. He said he is sleeping and eating well. He denied current hallucinations or seeing demons. He said, "I'm fine now". He said, "It really only takes one tablet to change everything. If I had been on medication, the incident wouldn't have happened."

Opinion

Dr Samuels noted that the accused had been diagnosed with a psychotic illness, most likely chronic paranoid schizophrenia.
Dr Samuels stated as follows: "Mr Cottam now acknowledges that from around 2016 he began having frank hallucinations of the Grim Reaper and was hearing voices that gave him various commands. He also acknowledged that he had had some concerns about obese people and he continues to believe that, because of bullying experiences they are likely to have experienced at school, when they get older, "their badness would come out".
Dr Samuels was of the opinion that the diary entries reflect a deteriorating mental state.
In the opinion of Dr Samuels there is evidence from the accused presentation in the ERISP that support a conclusion that he was: "…quite thought disordered and had frank delusional ideation involving obese people with associated delusions of reference. His poor eye contact, twitching, mannerisms and posturing are supportive clinical indicators of a psychotic state operating at and around the time of the offence."
Dr Samuels was further of the opinion that the Justice Health notes are further clinical evidence that he was psychotic at the time of reception and that it took many months to resolve. Dr Samuels concluded as follows: "It is my view that at the time of the offence, the accused was labouring under a defect of reason from a disease of the mind, with a disease of the mind most likely being a form of Paranoid Schizophrenia which started with prodromal symptoms some time after 2008 and manifested as a florid psychotic illness around 2016."
Further, Dr Samuels indicated he agreed with Dr Allnutt that, at the time of the offence on 14 October 2018 the accused was suffering from a disease of the mind, labouring under a defect of reason and did not understand the nature and quality of his act nor its wrongfulness and that he has the defence of mental illness open to him. Further, that he would not have been able at the time of the offence to conduct himself with a "moderate degree of sense and composure".
I note that whilst Dr Samuels indicated he agreed with Dr Allnutt that the accused did not understand the nature and quality of his act, Dr Allnutt was, in fact, of the opinion that the accused would have maintained capacity to know the nature and quality of his actions.

Reports of Dr Furst dated 12 October 2019 and 25 October 2019

Dr Furst, Forensic Psychiatrist, examined the accused via audio visual link on 9 October 2019 for a period of approximately 60 minutes.
In relation to the decline of the accused mental health, Dr Furst noted as follows: "He described an onset of mental health symptoms from the end of 2016 or the beginning of 2017. He said he was 'hallucinating' and was 'hearing voices', but did not tell anyone about this, hoping his symptoms would go away. He described both visual and auditory hallucinations in the following terms: "I would see an evil spirit. It would twirl and go into my body. I could feel its presence. It would morph and turn into something else. One hallucination would tell me keep standing… a deeper male voice. The other one would say 'sit down', like a cheeky girl's voice."
Dr Furst noted that the accused reported hearing multiple different voices, often voices that would talk about him and would talk to him.
The accused reported to Dr Furst that his auditory hallucinations continued throughout 2017 and 2018 including the time of the alleged offending. The accused also reported, "I felt like people could see my thoughts". He also reported experiencing apparent delusions of reference when watching television. Further, after attending a laser eye surgery centre to get his eyes checked he said, "it was like people could see what I could see…I thought they put something in there (in his eyes)".
In relation to the events of 14 October 2018 the accused told Dr Furst: "As soon as I saw Peter Richards at the gate, it triggered off the demons again. I had a psychotic episode. I heard things. On previous shifts when I met him, I thought he was harassing and bullying me. He got his keys out [one week prior to the morning in question] and I thought he was taunting me and might try to kill me."
In relation to the morning of the alleged offending the accused told Dr Furst: "A demon went into my body and controlled me… and before I knew it, I had cut him a few times…".
Further, he told Dr Furst: "The demon wanted me to kill him. It commanded me to get my knife out and 'do it'… I realised at some point what I was doing and felt bad about it, so I stopped."

Recent progress

Dr Furst was of the opinion that the accused symptoms had "now largely resolved, apart from the occasional "quiet" hallucinations, describing these as 'tiny'".
Dr Furst conducted a mental state examination and noted that there were no acute symptoms of mental illness and he was not paranoid at the time of the assessment nor was he hallucinating. Dr Furst was of the opinion the accused now had insight into being unwell at the time of the offending.

Review of relevant documentation

After reviewing relevant documentation, Dr Furst made the following observations: 1. In circumstances where the ERISP interview indicates there was no apparent logical motive for his alleged conduct, it points towards psychotic motivations for his actions. 2. In relation to the diary entries, there were numerous entries which are relevant in relation to both the duration of his apparent psychotic illness and the quality of his thought content. In the opinion of Dr Furst the entries indicate that the accused was showing signs of mental illness in 2017 and that he became increasingly irrational throughout 2018 "coinciding with the more acute phase of his schizophrenic illness". 3. There are a number of entries in the Justice Health medical records indicating that the accused was suffering from acute signs of schizophrenic illness in the weeks and months after his arrest.

Opinion

In the opinion of Dr Furst the accused meets the criteria for the diagnosis of schizophrenia.
In relation to the availability of the defence of mental illness, Dr Furst noted as follows: "The available history from Mr Cottam, as relayed to police in his ERISP, previous assessing psychiatrists Dr Allnutt, Dr Samuels and myself, police evidence, and the extensive entries contained in his Justice Health medical records in the weeks/months following his arrest and his diary entries he wrote are indicative of Mr Cottam suffering from a disease of the mind in the form of schizophrenia for a period of approximately two years leading up to the events in question before the court on 14/10/18. His illness also persisted for several months after his arrest in an attenuated form following active treatment with antipsychotic medication. Of greatest significance in relation to the mental illness defence, apart from the presence of his schizophrenic illness, was the lack of any logical motive or provocation prior to his alleged actions of stabbing his fellow security worker in the neck and the chest, apparently without saying anything to the victim prior to the attack and then making bizarre comments/asking bizarre questions, specifically telling the victim "I need to do this, it's the only way I'm going to get a girlfriend" and asking the victim what his Zodiac sign was. Those observed actions and words, coupled with his own description of having a demon coming to this body and telling him to 'do it' [kill the victim] make it highly likely he was driven to commit the offence in question by virtue of his delusional thinking and/or bizarre hallucinations he was experiencing at the time, constituting a defect of reason in the M'Naghten's sense. Therefore, I am firmly of the opinion that Mr Cottam was aware of his actions at the time of the alleged offending on 14/10/18 at the Munmorah Power Station construction site in Colongra; however, he was not aware of the wrongfulness of his actions because of his undiagnosed and untreated schizophrenic illness, with associated bizarre delusional thoughts and hallucinations driving his offending behaviour and making him believe that he was doing the right thing at the time. He was also unable to reason about the wrongfulness of his actions, according to the standards of ordinary people, with a moderate degree of sense and composure, as a consequence of his acute psychosis and belief a demon of some type had taken over his body and was telling him to kill the victim. Therefore, I am also firmly of the opinion that Mr Cottam has the mental illness defence available to him, within the meaning of the so-called M'Naghten Rules."
Dr Furst also made recommendations in relation to the future treatment of the accused should he be released from custody.

Report of Dr Furst dated 25 October 2019

Dr Furst was asked to further consider Q A166-167 in the accused's ERISP (in which the accused appears to indicate an awareness of the wrongfulness of his actions).
In relation to those questions, Dr Furst stated as follows: "…I remain in no doubt that Mr Cottam was psychotic at the time of the alleged offence at his workplace and that his actions and stabbing his work colleague were driven by irrational thoughts and psychotic beliefs in particular, such that he has the mental illness defence available to him. In my opinion, it is likely that Mr Cottam's responses to the police [Q/A166, 167] at the time of his ERISP where the product of one or more of the following possible explanations: • An effort to 'please' or agree with the interviewer, Mr Cotton being a vulnerable and mentally ill person at the time; • A lack of insight into being a mentally ill person, therefore not being aware of and/or disclosing the extent of his delusional beliefs to the interviewing police; • An error in his responses to Question 166 and 167, i.e. he may not have actually been aware or felt that his actions were wrong at the time of the offence earlier that morning, then incorrectly stated he was aware of the wrongfulness of his actions later that evening when interviewed by police; • Being aware that his actions were wrong at law, such as because he had been arrested and/or a general intellectual understanding of his actions, but still believing that his actions were morally justified at the time of his alleged offending."

Consideration

Having regard to the medical evidence, I am satisfied that there is overwhelming evidence that the accused was suffering from schizophrenia at the time of the alleged offences. It would appear that his mental health had been deteriorating from as long ago as his teenage years to the extent that his family had serious concerns in relation to his mental health.
I am further satisfied he was suffering active symptoms of schizophrenia at the time of the alleged offending having regard to his behaviour towards the complainant, his answers and demeanour in the ERISP and his presentation in the weeks and months after the alleged offending as reported in the Justice Health records.
Having regard to the opinions of Dr Allnutt, Dr Samuels and Dr Furst, I am satisfied on the balance of probabilities that: 1. At the time of the alleged offending the accused was suffering from a disease of the mind, namely schizophrenia; and 2. at the time of the commission of the alleged offences he was labouring under a defect of reason from that disease of the mind and, whilst he did know the nature and quality of the act he was doing, he did not know what he was doing was wrong.
To the extent that Dr Samuels opines that the accused did not know the nature and quality of his act, I prefer the opinion of each of Drs Allnutt and Furst having regard to the available evidence.

Verdicts

Accordingly, the verdicts in accordance with section 38, Mental Health (Forensic Provisions) Act are as follows: 1. In relation to Count 1 - I find the accused not guilty by reason of mental illness. 2. In relation to Count 2 - I find the accused not guilty by reason of mental illness. 3. Pursuant to section 38 (2), Mental Health (Forensic Provisions) Act Mr Cottam is remanded in custody until 29 November 2019 for the making of an order under section 39, Mental Health (Forensic Provisions) Act.

Amendments 19 December 2019 - Remove typographical error (duplication in p 178(1)) 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: 19 December 2019

Defence of mental illness

Having found each of the elements established beyond reasonable doubt, I next have to consider whether, at the time the act was done, the accused was mentally ill, so as not to be responsible according to law.
Section 38, Mental Health (Forensic Provisions) Act provides as follows: (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.
The onus with respect to this issue is on the accused. It is sufficient if the accused establishes on the balance of probabilities, that is to say, that it is more likely than not that he was mentally ill at the time of the doing of the act constituting the alleged offence (Mizzi v The Queen [1960] HCA 77, (1960) 105 CLR 659 at 664-665). If so, then he is entitled to a verdict of "not guilty by reason of mental illness".
There is no statutory definition of a defence of mental illness. The relevant test is as set out in R v M'Naughten [1843] 8 ER 718 (the "M'Naughten Rules").
In order to discharge his onus the accused must prove to the requisite standard that: "…at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong": R v M'Naghten (1843) 8 ER 718
A "defect of reason" is some diminution or malfunction of the normal capacity for rational thought. In R v Porter (1936) 55 CLR 182 at 185 Dixon J spoke of the "prisoner's faculties" being "disordered". Dixon J at 190 said: "…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 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."
The defect of reason must be caused by a "disease of the mind". The aetiology of the disease of the mind is a matter to be determined by expert evidence. It is open to the tribunal of fact to reach a conclusion different from the express medical experts, but only where there is other evidence displacing or throwing doubt upon it, or where the medical evidence is not unanimous (R v Tumanako 64 A Crim R 149 at 160 per Badgery-Parker J).
Evidence of "mental illness" may be found in the behaviour of the accused and medical witnesses may give evidence of the opinion as to whether the accused could appreciate the nature and quality of his act, or if he could, whether he knew it was wrong (Thomas v The Queen (1960) 102 CLR 584).
I am required to inform myself of the findings which may be made at the trial and the legal and practical consequences of those findings including a reference to the existence and composition of the Mental Health Review Tribunal and its relevant functions (see section 37, Mental Health (Forensic Provisions) Act.
The available verdicts are at trial in relation to each count are as follows: 1. not guilty; 2. not guilty by reason of mental illness; and 3. guilty.
If the verdict is "not guilty on the ground of mental illness", then I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community.
On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by what is called "due process of law". The accused then falls under the supervision of the Mental Health Review Tribunal.
I remind myself of the composition and functions of this Tribunal.
The Mental Health Review Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office.
The Tribunal is required to review the cases of all persons found not guilty by reason of mental illness as soon as practicable after the findings made and must make orders as to the person's care, detention, treatment on release: section 44(1), Mental Health (Forensic Provisions) Act,1990.
After reviewing a person's case, the Tribunal must make an order as to the person's care, detention or treatment, or as to the person's release (either unconditionally or subject to conditions): section 44(2), Mental Health (Forensic Provisions) Act,1990.
After that time, the Tribunal conducts regular 6 monthly reviews: section 46, Mental Health (Forensic Provisions) Act.
The Tribunal may, after reviewing the case of a person under section 46, make an order as to the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or the patient's release (either unconditionally or subject to conditions).

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (4)