R v Cox [2018] NSWSC 200 | Case summary

Supreme Court of NSW|2018-02-14|Before: Hidden AJ, Campbell J, Spigelman CJ

Judgment

HIDDEN AJ: The accused, Ronald Ian Cox, is charged with the murder of Wayne Burton-Smith at Sutherland between 29 April and 3 May 2016. On 18 August 2017, Campbell J found him unfit to be tried for that offence: R v Ronald Ian Cox [2017] NSWSC 1097. On 27 October 2017, the Mental Health Review Tribunal found, pursuant to s 16(1) of the Mental Health (Forensic Provisions) Act 1990, that Mr Cox remained unfit to be tried and would not become fit within the ensuing 12 months. Accordingly, I have presided over a special hearing, pursuant to s 19 of that Act, to determine whether, on the limited evidence available, Mr Cox committed the offence charged. Relevantly for present purposes, one of the verdicts available to me by s 22(1)(b) of the Act is not guilty on the ground of mental illness. Whether that should be the verdict is the only issue in this case.
The evidence in the case is undisputed and, for that reason, I have received almost all of it in documentary form. However, some oral evidence was given by the officer in charge of the investigation, Detective Senior Constable Paul Baglin, and I viewed some CCTV footage of an unrelated incident, to which I shall refer in due course. In addition, I heard oral evidence from two respected forensic psychiatrists, Dr Jonathan Adams and Dr Olav Nielssen, whose reports I also received.
I was content to proceed in this relatively informal way, given the limited issue to be determined, and guided by the observations of Spigelman CJ in R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 at [2]-[19] (3-6). This was the approach adopted by the Crown prosecutor and counsel for the accused, Ms Davenport SC, both of whom are very experienced in this jurisdiction.

The psychiatric evidence

Both Dr Nielssen and Dr Adams assessed the accused in relation to his fitness to stand trial and in relation to the defence of mental illness. Apart from interviewing the accused himself, both doctors had access to relevant medical records. In addition, Dr Nielssen spoke to Ms Foreshew and to the accused's treating psychiatrist at Sutherland Hospital, Dr Babidge. In evidence is a comprehensive report of Dr Nielssen of 14 January 2017. Dr Adams prepared four reports, of which the reports of 16 May 2017 and 8 February 2018 are of immediate relevance. He also had the report of Dr Nielssen, with which he agreed.
Their evidence is that the accused suffers from chronic schizophrenia. It had its onset in his late teens, and between March 1984 and March 2016 he was admitted to the Mental Health Unit at Sutherland Hospital on numerous occasions. He has also undergone periods of rehabilitation at Sutherland Hospital and Bloomfield Hospital. Symptoms of the illness have endured despite treatment, and it has become more resistant to treatment over its course. It has been characterised by paranoid delusions of various kinds, but most persistently through auditory hallucinations.
The accused also has a history of the abuse of alcohol and a variety of illicit drugs, giving rise to a diagnosis of substance use disorder. In his early twenties he was involved in a motor bike accident, from which he appears to have suffered a frontal lobe injury. Neuropsychiatric testing in 2013 revealed a degree of cognitive impairment. Dr Nielssen diagnosed acquired brain injury, although noting that it would be difficult to separate the effects of a traumatic brain injury from those of long term substance abuse and schizophrenia itself. Dr Adams gave evidence that substance abuse and cognitive impairment compound the effects of the psychiatric illness.
To both psychiatrists the accused said that he did not recall what his state of mind was at the time of the offence, and for their conclusions they relied upon the evidence in the Crown case. He told Dr Nielssen that he had been off his medication, and had been smoking pot and drinking, at the time. Dr Nielssen thought it likely that the accused's attack upon the deceased was influenced by delusional beliefs, together with the effect of impaired frontal lobe function. Addressing the elements of the defence of mental illness, he concluded in his report: "Hence I believe he has the defence of mental illness open to him for the charge of murder. He has a disease of the brain in the form of the neurodegenerative disorder, chronic schizophrenia, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. His mental illness resulted in a defect of reason in the form of delusional beliefs arising from auditory hallucinations and other perceptual disturbances, and gross impairment in the capacity for logical reasoning. He was probably aware of the physical nature of his actions from the purposeful nature of the assault. However, on the balance of probabilities, at the time of the offence he was deprived of the ability of reasoning with any measure of sense or composure about the moral wrongfulness of his actions."
In his report of 8 February 2018, Dr Adams also addressed the elements of the defence. He characterised schizophrenia as a "disease of the mind", and added: "On balance, in my opinion it is reasonable to conclude that Mr Cox was most likely suffering from persisting symptoms of schizophrenia at the material time of the alleged offending behaviour. I believe it is likely that he was experiencing persisting thought disorder, and possibly delusional beliefs. It might well be the case that there is a nexus between Mr Cox's likely delusional beliefs and the alleged offending behaviour, although at this point I am not able to confirm this."
Dr Adams also reported that "from a psychiatric perspective", the concept of defect of reason is understood "in terms of someone's decision making capacity." He continued: "I believe it is reasonable to conclude that Mr Cox's decision-making capacity would have been impaired to a significant degree during the period of the alleged offending behaviour. It is commonly understood that schizophrenia impacts deleteriously upon someone's judgement and decision-making capacity, and this is repeatedly documented in the medical record regarding Mr Cox's long-standing psychiatric history."
Dr Adams concluded: "Given the unknown variables regarding Mr Cox's mental state at the material time of the alleged offence, at this point I am unable to confirm whether he understood the nature and quality of the alleged offending behaviour. Notwithstanding this, in my view it is most likely that he did not have the requisite capacity to understand the moral wrongfulness of his behaviour and reason with a moderate degree of sense and composure. I have come to this conclusion given my concerns regarding Mr Cox's capacity for rational thought and judgment, as already discussed. Therefore, I believe it could be argued that Mr Cox has the defence of not guilty by reason of mental illness available to him."

Findings

On the limited evidence available, I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by a deliberate act (or acts). The question which then arises is whether he was criminally responsible for that act. It is at this point that the defence of mental illness falls to be considered: Hawkins v The Queen (1994) 179 CLR 500. I am satisfied on the balance of probabilities that the defence has been made out.
I accept the views of the forensic psychiatrists who, of course, are very experienced in the forensic field and well acquainted with the elements of the defence of mental illness. Some aspects of the accused's explanation for the attack upon the deceased are not, on their face, delusional. Whether the deceased did make sexual overtures to him or threatened him with violence of some kind I cannot say, but neither proposition is inherently fanciful. Of course, those aspects of his generally confused account could hardly explain the extreme measure of violence he had meted out to the deceased.
However, I accept that his belief that the deceased was going to kill his mother or rape his family and children was delusional. I find that for two reasons: firstly, there is nothing to suggest that his mother or any other member of his family was in any way threatened by the deceased and, secondly, the accused does not have any children.
In all the circumstances, and having regard to the evidence of the pattern of irrational behaviour in the weeks leading up to the offence, I am satisfied that at the time of the killing the accused was in the disordered state of mind described by the psychiatrists, and that that mental state was engendered by his mental illness.
The accused's actions in attempting to wash the blood from the wall, and perhaps burning the clothes he had been wearing at the time of the attack, suggest an attempt to cover his tracks. These steps, together with his leaving the unit with the intention of going to Perth, convey that he might have had some sense of the unlawfulness of what he had done and a fear of the consequences he might face. Nevertheless, I am satisfied that at the time of killing he was unable to appreciate that what he was doing was morally wrong. To adopt the time honoured expression of this requirement by Sir Owen Dixon in The King v Porter (1936) 55 CLR 182 at 189-90, adopted by Dr Nielssen and Dr Adams in their reports, he could not reason "with a moderate degree of sense and composure" about the "right or wrongness, according to ordinary standards, of the thing which he was doing..."
Accordingly, I find the accused not guilty by reason of mental illness. I shall consult the parties about the order I should now make. [Appropriate order discussed with counsel]
Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained at the Mental Health Unit of the Metropolitan Remand and Reception Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

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: 28 February 2018

R v Cox

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