R v Deakin

Supreme Court of NSW|2021-01-20|Before: Beech-Jones J

Background

As at 1 June 2018, the accused was just over twenty years old. He is now twenty-two. His parents had separated when he was five or six years old. He left school at the end of year 9. The accused lived with his father until he was around 15 to 16 years old and thereafter appears to have moved between the homes of his father, his father's partner, his paternal grandfather and his mother. As noted in the agreed facts, in June 2019 he commenced living with his maternal grandparents, that is Mr and Mrs Winner. His mother is described by various witnesses, including the accused in his discussions with psychiatrists, as having "mental health issues" [2] or a "mental disorder". His paternal uncle was described as suffering from schizophrenia. [3] The relationship between the accused and each of his parents is described differently by the various witnesses depending on their perspective. From listening to the recorded calls between the accused and his father after he was arrested, it seems that his father was certainly supportive at that time, although their relationship had previously been strained at times. The accused's father has since passed away.

June 2018

None of the psychiatrists, nor the Crown, disputed that the accused was psychotic on 1 June 2018. This is confirmed by the agreed facts which not only record his senseless attacks and erratic driving, but also the various delusional statements he was heard to make. Hence just prior to killing Mr Horne he referred to the "code", [6] he referred to the "illuminati" when talking to one police officer [7] and told another officer about the "verbal contract" and "KGB subliminal messaging". [8] As noted, he was diagnosed as "clearly psychotic" on his admission to hospital.
The two psychiatrists who spoke to the accused, Dr Nielssen and Professor Greenberg, took histories from him consistent with the existence of psychosis. Professor Greenberg spoke to the accused on 17 April 2019. In his report dated 4 May 2019, he records the accused telling him that on 1 June 2018 he was "talking to spirits, angels, demons and Gods", that he "found out a big secret" and thought he was "channelling God's head". He said he was talking to his grandmother and thought he "was a sleeper secret agent trying to get Nan out of the house away from the TV to save her" but "[s]uddenly, I thought she was a demon". [9] He said he thought his grandfather was a "vampire" [10] and later thought they both were. He described Mr Horne as being part of a conspiracy to get him. Dr Nielssen spoke to the accused on 3 July 2018. His report dated 10 July 2018 contains a similar description of the accused's recollection.

Post June 2018

A significant factor in the diagnosis of schizophrenia that was ultimately agreed upon by the psychiatrists, was the development of the accused's mental state while in custody. In his report of 4 May 2019, Professor Greenberg set out in detail the effect of the Department of Corrective Services notes and Justice Health records concerning the accused. [11] Professor Greenberg summarised their effect as follows: "It is reported that Mr Deakin was assessed at Bega Hospital in a psychotic state. He was treated with antipsychotic medication. However, it is noted that within 24 hours, he had markedly improved in his mental state. He appeared to have awareness of his legal situation and alleged offences. He appeared to have reasonable insight into his psychotic symptoms being related to his substance use. This improved insight into his psychosis is noted in the audio recording made by DSC Tom Woodhouse at 10:01am on 2 June 2018 at Bega Hospital, less than 24 hours after the alleged offences. This rapid response is more suggestive of a drug induced psychotic state than him having an acute episode of schizophrenia psychosis. In acute psychotic schizophrenia episodes with overt delusions, hallucinations and thought disorder, this lack of insight into the reality of their psychotic perceptions and beliefs usually is present for several days, weeks and possibly months before there is an improvement with anti-psychotic treatment. However, Mr Deakin reportedly did have ongoing psychotic symptoms following his reception into custody and care by Justice Health nurses and psychiatrists. He reportedly had ongoing ideas of reference where he believed the TV was referring to him, talking to him, brainwashing him, responding to what he was thinking and characters in the TV was sending him messages. He also claimed he was seeing pentagrams and demons. He claimed he read a book and words jumped off the page and gave him special meanings. This persistent pattern of psychotic symptoms is more indicative of a schizophrenic process rather than a drug induced psychosis which usually does not persist for periods of longer than a month. However, with certain drugs such as crystal methamphetamines and synthetic cannabis, these residual symptoms can linger for longer periods. Hallucinogen Persisting Perception Disorder can occur after the cessation of LSD and/or synthetic cannabis but this is usually associated with predominant visual rather than auditory perceptions/ hallucinations …"
Professor Greenberg's summary of the treatment administered to the accused in custody reveals that from June 2018 he was prescribed various anti‑psychotic and anti‑depressant medications. Despite this, his paranoid thoughts and delusions reoccurred. By the end of 2018, the accused was being administered "Clozapine antipsychotic medication". [12] All three psychiatrists agreed that Clozapine is "reserved for treatment‑resistant forms of schizophrenia" [13] and has significant adverse side effects.
Professor Greenberg prepared a supplementary report on 10 January 2021 [14] which summarised additional corrective services records for the accused that related to the period after January 2019. [15] Those records contain diagnoses of schizophrenia by Justice Health psychiatrists and periodic references to the accused experiencing paranoid thoughts. Nevertheless, Professor Greenberg reported that the accused "appeared to be gradually responding to the atypical psychiatric medication".

Drug and Alcohol Consumption

An issue was raised about the accused's drug consumption generally and on 1 June 2018 in particular. In his report dated 10 July 2018, Dr Nielssen recorded the accused stating that he commenced smoking cannabis at around the age of seventeen and that he had taken LSD on five or six occasions. [16] Professor Greenberg recorded the accused stating that he was consuming cannabis every night while he lived with his grandparents [17] and consuming LSD once a month in the six months prior to 1 June 2018. [18] Professor Greenberg noted that a Justice Health record noted that on 10 June 2018 the accused told a nurse that he "used 20 LSD papers" on 1 June 2018 but the accused denied to Professor Greenberg that he said that to the nurse. [19] When the accused appeared before a Magistrate on 4 June 2018, he stated that he had "done a lot of heavy duty psychedelic drugs". [20]
The LSD tabs obtained from the accused's room have already been described. As stated, blood and urine samples were taken from the accused on 1 June 2018. For reasons that were not explained the urine sample was not provided to the testing laboratory. [21] The analysis of the blood sample revealed the presence of THC but no other drug including "synthetic" cannabis. [22] A further urine and blood sample was taken from the accused on 4 June 2018. Both samples revealed the presence of THC but no other drug including "synthetic" cannabis. [23] The concentration levels of THC acid were higher than the THC acid level detected in the blood sample taken on 1 June 2018.
A pharmacologist retained by the Crown, Dr Perl, provided two reports concerning these sample results. Another pharmacologist, Dr Farrar, was retained on behalf of the accused. In relation to the possibility of LSD ingestion by the accused, Dr Perl opined that, as the blood sample taken on the evening of 1 June 2018 was "whole blood" (as opposed to plasma), it was highly unlikely that any LSD consumed by the accused prior to his arrest would have been detectable. [24] Dr Perl concluded that it was not possible to indicate if the accused used LSD, or when it may have been used, if at all. In relation to the use of cannabis, Dr Perl indicated that the different THC readings in the samples taken on 1 and 4 June 2018 "suggests the [a]ccused had recently used cannabis prior to the taking of the first blood sample". [25] Dr Perl's ultimate conclusion was as follows: [26] "…I cannot form a firm opinion that at the time of driving [the accused] was under the influence of cannabis to the extent that his ability to drive was impaired (to a degree beyond reasonable doubt), although given his blood concentration of delta-9-tetrahydrocannabinol, it is much more likely than not that he would have been under the influence to an extent that there is likely to have been some impairment of [his] driving ability. His apparent mental instability at the time of the incident does not appear to be cannabis related but could have been in part due to drug-induced effects, although I cannot indicate what drug."
Dr Farrar's opinion was more equivocal in that he stated that "it is not possible to establish whether [the accused] had consumed LSD and/or cannabis prior to the time of the assaults". [27]
One matter that was not explored given the manner in which the trial unfolded, was the suggestion that the accused consumed some 20 or so tabs of LSD on the evening prior to 1 June 2018. Given that I regard him as a generally unreliable historian of his drug use around that time and the likely poisoning that might occur from such a dose, I am not satisfied of that matter. Otherwise, I accept Dr Perl's assessment noted above. The legal consequences of that assessment depend upon which party bears the onus of proof on a particular issue. In relation to the charge of driving under the influence of an illicit drug, the Crown bears the onus of proof of that matter and the standard of proof is beyond reasonable doubt. It follows that it has not discharged that onus and that charge must fail. In relation to the defence of mental illness, on the balance of probabilities I am satisfied that the accused was affected by cannabis on 1 June 2018, although not to a significant extent. I can neither find nor exclude the circumstance that he was affected by LSD on that day, other than excluding the scenario that he consumed 20 or so tabs. However, as I will next explain, that does not matter as, even if he had consumed drugs then, at most that was only the trigger for his psychosis and not the relevant cause. Instead, that cause was his schizophrenia.

Psychiatric Opinions

As stated, the Court received evidence from three psychiatrists, each with extensive experience in forensic psychiatry, namely Professor Greenberg, Dr Nielssen and Dr Martin. All three provided multiple detailed reports and, as noted, they gave oral evidence in a joint session on the morning of 19 January 2021. Both Dr Nielssen and Professor Greenberg consulted with the accused.
As stated, there was never any dispute that on 1 June 2018 the accused was psychotic. Further, the ultimate opinion of all three psychiatrists was that as at 1 June 2018 the accused's psychosis was a feature of a "disease of the mind", specifically schizophrenia. Professor Greenberg expressed his diagnosis as "Schizophrenic Disorder precipitated and/or exacerbated by ... substance abuse". [28] He opined that the accused was labouring under a defect of reason caused by a disease of the mind, in that on 1 June 2018 he was suffering from paranoid delusion to the effect that his victims were demons, vampires or part of a conspiracy to harm him. [29] While Professor Greenberg accepted that the accused knew the nature and quality of his actions and that they were legally wrong, he also concluded that the accused did not know they were morally wrong and thus considered that the second limb of the defence of mental illness was satisfied. [30] Dr Martin's opinion was not relevantly different. [31] Dr Nielssen's diagnosis and conclusion was the same, although more emphatic. [32]
A consideration of the persuasiveness of these opinions is best undertaken by comparing it to another possible diagnosis that was considered by Professor Greenberg, namely a substance induced psychotic disorder. In his report of 4 May 2019, Professor Greenberg described this as a "lesser possibility". [33] In his report of 10 January 2021, he stated that he could not "totally exclude [this] possibility". [34] As its name implies, a substance induced psychotic disorder is a psychosis that results from the ingestion of illicit substances. Professor Greenberg explained that the psychosis can last beyond the time in which the person is intoxicated. [35] Consistent with the principle identified by Johnson J in Fang (No 3), and approved on appeal, if that is all that is established then the defence of mental illness fails as there would be no underlying "disease of the mind". Instead, there is only a temporary psychosis induced by external factors controlled by an accused, namely their ingestion of drugs. In his report of 10 January 2021, Professor Greenberg identified some indicators that possibly favoured such a diagnosis, namely the accused's reported use of drugs, the absence of any diagnosis of mental illness prior to 1 June 2018 and his apparent improvement in the immediate period after his incarceration. [36] Dr Neilssen was dismissive of even the existence of such a disorder. [37]
The possibility that the accused "only" suffered from a drug induced psychosis and not a disease of the mind in the form of schizophrenia does not withstand much scrutiny. In his oral evidence, Professor Greenberg explained that, while the psychotic effect of the two conditions is very similar, what distinguishes them is that the "diagnosis of schizophrenia is made on a longitudinal basis". [38] In the accused's case, all three psychiatrists approached it in that way by considering the accused's family history of mental illness, the development of his anxiety, reclusiveness and obsessive conduct in the years prior to June 2018 [39] and, as noted, the persistence of symptoms associated with schizophrenia for a sustained period while in custody, even though all the possible effects of illicit substances would have long since dissipated. [40]
Three matters in particular should be noted. First, in relation to the period prior to 1 June 2018, Dr Martin opined that generally the prodromal stage of schizophrenia, being the period prior to onset of the first serious instance of psychosis, was about "one to two years". [41] Dr Nielssen stated that the average prodromal period was a year but it could be longer or shorter. [42] Professor Greenberg stated that such a period usually commences when the individual is "about 17, 18, 19". [43] Those periods coincide well with the evidence concerning the accused which suggests that he suffered a marked deterioration from being an awkward maladjusted youth to a reclusive and seriously obsessed young adult.
Second, in their joint session, the three psychiatrists identified the interaction between drug use and the onset of schizophrenia and an associated psychosis in terms that are consistent with the development of the accused's condition. In particular, all of the psychiatrists opined that drug abuse was likely to exacerbate or precipitate the onset of the psychotic phase of the illness. [44] Dr Neilssen pointed to research indicating that the incidence of schizophrenia is roughly the same in communities where there is very little drug use compared to those where it is much higher, [45] although on average cannabis smokers with schizophrenia have their first psychotic episode 2.7 years earlier than non‑cannabis smokers. [46] Hence, for a person diagnosed with schizophrenia it can often be the case that drug abuse is the early trigger for a psychotic episode but not the underlying cause.
Third, in their joint session, all three psychiatrists reiterated the importance to their diagnosis of the persistence of the accused's psychosis in custody, so much so that he had to be treated with Clozapine for an extended period. [47] In particular, the Crown Prosecutor took up with Professor Greenberg the possibility he raised, but excluded, of the accused having suffered from a drug induced psychosis. In particular, Professor Greenberg was asked to assume that the prodromal factors were not established by the evidence and then opine on the likelihood that the accused suffered a drug induced psychosis on 1 June 2018 and then later developed schizophrenia while in custody. [48] Professor Greenberg described that as a "less, much lesser possibility, because [the accused] never recovered". [49] Professor Greenberg expanded on this as follows: [50] "So he was floridly psychotic, but he never fully recovered. He continued to have ongoing persistent symptoms residual symptoms, which continued until 12 months later, when he starts Clozapine, and then gradually, over six months or more, his symptoms abate from the Clozapine. So he was initially treated with, because he had these residual symptoms, with two different anti‑psychotics. He didn't fully respond, he continued to have ongoing persistent referential delusions, some hallucinations at times, and paranoid ideation. So he never recovered."
Dr Martin agreed with this response. [51] Dr Neilssen said he had nothing to add. [52]
The Crown Prosecutor (correctly) recognised the persuasive force of these answers. When Court resumed on the day after this evidence was given, he advised the Court that the Crown accepted that the defence of mental illness was made out. He referred to the following passage from R v Matheson (1958) 42 Cr App R 145 at 151 which was approved in R v Jenkins (1963) 64 SR (NSW) 20 at 27: "While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, the court would not, and indeed could not, disturb their verdict, but if the doctor's evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'."
I have undertaken my own close scrutiny of the evidence, including that given by the three psychiatrists in writing, and in their joint session on 19 January 2021. I do not consider that there are any facts which would entitle me to reject or differ from their opinions about the psychiatric state of the accused on 1 June 2018 and in particular the conclusions of Professor Greenberg summarised at [80]. To the contrary, having heard the psychiatrists' evidence and the reasons they proffer, I am persuaded by, and agree, with their opinions. It follows that the accused has established and discharged his onus of proof in relation to the defence of mental illness. This is so regardless of whether the accused did or did not ingest either cannabis or LSD in the period prior to the events of 1 June 2018. For the reasons already outlined, if that occurred and precipitated his psychosis, that psychosis would only be a symptom of an underlying and operative disease of the mind, namely schizophrenia. The existence of that condition takes the matter outside the principle enunciated by Johnson J in Fang (No 3) because "there is … a separate psychiatric illness which is operative at the time of the act giving rise to the charge" (Fang (No 3) at [94]).
It follows that in respect of all the counts on the indictment and the related charges, save for driving under the influence, a verdict of not guilty by reason of mental illness will be entered. In respect of the charge of driving under the influence, the verdict will be not guilty.

Consequences of Verdict and Victim Impact

Section 39 of the MHFPA deals with the steps that follow from a finding that an accused person is not guilty by reason of mental illness. It provides: "39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order."
Section 39(1) thus confers on the Court a power to order that a person be detained unless released by due process of law or to make other orders including the conditional release of the accused person. A person can only be released if the Court is satisfied, on the balance of probabilities, "that the safety of the person or any member of the public will not be seriously endangered" by their release. Counsel for the accused did not contend that the Court could be so satisfied. In light of the evidence tendered at the trial, I could not countenance the accused's release.
Accordingly, I will order that the accused be detained until released by due process of law. What follows from that? As was explained by Johnson J in R v Kemball [2020] NSWSC 1559 at [91] to [92], the effect of that order is to vest responsibility for decisions concerning the detention and possible release of the accused in the Tribunal. The statutory scheme precludes the Tribunal from releasing the accused unless the Tribunal is satisfied that the safety of any member of the public or of the accused will not be seriously endangered by his release. The accused's case is subject to review by the Tribunal as soon as practicable and thereafter at six‑monthly intervals. If, at some stage in the future, the accused comes to be released, it may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained. The legislation makes specific provision for submissions by victims of crime including their families in relation to the exercise of these powers (MHFPA, s 74A). Needless to say, in circumstances where the accused has already brutally killed two people and seriously injured another, these powers will have to be carefully exercised.
As a result of relatively recent statutory amendments, this Court is empowered to receive victim impact statements following a finding of not guilty by reason of mental illness. This statement is to be provided to the Tribunal (Crimes (Sentencing Procedure) Act 1999, s 30N(4)) which then imposes obligations on the Tribunal (Crimes (Sentencing Procedure) Regulation 2017, reg 12D).
In this case, the Court was advised that a number of members of the families of the victims intended to make statements and submissions to the Tribunal. However, Amy Winner, the granddaughter of Thomas and Gail Winner delivered a victim impact statement to the Court. The Court acknowledges its receipt. Ms Winner spoke with emotion and dignity. She described the terrible toll on her and her family upon learning that her cousin had killed her grandmother and an unrelated person, that is Michael Horne, and almost killed her grandfather. At the time of these terrible events, Ms Winner was 32 weeks pregnant. She had to deal with both the pressures of everyday life including organising a funeral as well as coping with the tragedy that had occurred. She describes waiting by her grandfather's bed to see if he would survive, dealing with police inquiries, the press and having to repeatedly explain what had happened to her work colleagues, friends and the community. She says in the longer term she continues to mourn, especially as her grandmother did not meet her greatgrandchildren. Moreover, in her words she is "[l]ooking after my Pop, while he continues to die" from a "slow and painful death" in which he "cannot complete simple tasks", "cannot engage with his great grandchildren" and when "all he thinks is my wife is not here". Ms Winner expressed her condolences to the Horne family. Towards the accused, Ms Winner expressed forgiveness because she believed that is what her grandmother would have done. However, she reminded him that, whatever the opinions of the psychiatrists or the findings of the Court, it was his choices that led to the terrible pain and suffering that commenced on 1 June 2018.
I have no doubt that something similar to Ms Winner's experiences and pain were shared by the family members of all three primary victims. Her statement was a powerful reminder, if such a reminder is necessary, of the vast sea of physical and emotional pain and suffering that resulted from the accused's actions on 1 June 2018. He devastated two large families and the wider community.
The evidence and victim impact statement adduced at this trial provided only a glimpse into the lives of Mr and Mrs Winner and Mr Horne. Just that brief view reveals that Mr and Mrs Winner were very much devoted to all the members of their family. Their devotion was such that they were prepared to assume the burden of looking after their troubled grandson in their advancing years. As noted, Michael Horne told the triple‑0 operator that he was an ex‑highway patrol officer. On the day that he lost his life he was following his instincts of protecting the public. All three primary victims deserve not to be defined or remembered by how they died but how they lived.
The Court expresses its condolences to Thomas Winner, to his family, and the family of Michael Horne.

Verdict and Orders

All that remains is for the Court to enter verdicts and make orders.
Accordingly, the Court enters the following verdicts and makes the following orders: 1. In accordance with section 38 of the Mental Health (Forensic Provisions) Act 1990: (i) On count 1 of the indictment being attempted murder of Thomas Winner, the accused is not guilty by reason of mental illness; (ii) On count 2 of the indictment being the murder of Gail Winner, the accused is not guilty by reason of mental illness; (iii) On count 3 of the indictment being the murder of Michael Horne, the accused is not guilty by reason of mental illness. (iv) On sequence 5 being a charge of driving while holding a learner permit and not accompanied by a driver, the accused is not guilty by reason of mental illness; (v) On sequence 6 being a charge of take and drive a conveyance without the consent of the owner, the accused is not guilty by reason of mental illness; (vi) On sequence 7 being another charge of take and drive a conveyance without the consent of the owner, the accused is not guilty by reason of mental illness; (vii) On sequence 8 being a charge of assault police officer in execution of his duty and cause actual bodily harm, the accused is not guilty by reason of mental illness; (viii) On sequence 9 being a charge of not stopping while being pursued by police, the accused is not guilty by reason of mental illness; (ix) On sequence 10 being another charge of not stopping while being pursued by police, the accused is not guilty by reason of mental illness; (2) On sequence 11 being driving while there was present a prescribed illicit drug in his blood, the accused is not guilty. (3) In accordance with section 39(1) of the Mental Health (Forensic Provisions) Act 1990, Murray Deakin be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. (4) The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation: (i) a copy of these reasons for verdict and orders; (ii) the transcript of the trial; (iii) the victim impact statement of Amy Winner; (iv) copies of exhibits from the trial including the reports of Professor Greenberg, Dr Nielssen and Dr Martin.

Endnotes

The agreed facts wrongly describe him as the paternal grandson.
Ex C, tab 39 at [12].
Ex C, tab 40 at [9].
For example, Ex C, tab 38; tab 39; tab 41.
Ex C, tab 42 at [26].
See [41] above.
See [47] above.
See [49] above.
Ex E at p 3.
Ex E at p 4.
Ex E at pp 22 to 25 and 27 to 33.
Ex E at p 33.
T 19/01/2021 at p 63.2.
Wrongly dated 10 January 2020.
Ex F at pp 17 to 18.
Ex I at p 4.
Ex E at p 7.
Ex E at p 8.
Ex E at p 8.
Ex C, tab 33 at p 3.
T 19/01/2021 at pp 34 to 35; Ex 1.
Ex C, tab 32B.
Ex C, tab 32B.
Ex C, tab 28 at [16].
Ex C, tab 28 at [19].
Ex C, tab 29 at [8].
Ex L at [145].
Ex E at p 37.
Ex E at p 38.
Id.
Ex G at p 8.
Ex I at page 8.1.
Ex E at p 37.
Ex F at p 19.
T 19/01/2021 at p 61.9.
Ex F at pp 10 to 11.
T 19/01/2021 at p 65.
T 19/01/2021 at p 67.29.
T 19/01/2021 at pp 54 to 55.
T 19/01/2012 at p 76.
T 21/01/2021 at p 56.14.
T 21/01/2021 at p 56.28.
T 19/01/2021 at p 56.21.
T 19/01/2021 at p 57.14 (Prof Greenberg), p 57.41 (Dr Martin), p 58.20 (Dr Neilssen).
T 19/01/2021 at p 57.32.
T 19/01/2021 at p 58.24.
T 19/01/2021 at p 63.
T 19/01/2021 at p 75.
T 19/01/2021 at p 76.1.
T 19/01/2021 at p 76.12.
T 19/01/2021 at p 77.1.
T 19/01/2021 at p 77.2. 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: 22 January 2021

Goodridge v R [2014] NSWCCA 37 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 McNaghten's Case (1843) 8 ER 718; (1843) Cl and F 200 R v Fang (No 3) (2017) 264 A Crim R 554; [2017] NSWSC 28 R v Jenkins (1963) 64 SR (NSW) 20 R v Kemball [2020] NSWSC 1559 R v Matheson (1958) 42 Cr App R 145 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Papley [2017] NSWSC 1068 R v Quinn (No 2) [2016] NSWSC 1244 R v S [1979] 2 NSWLR 1 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Benchbook at 2-1110 Category: Principal judgment Parties: Regina (Crown) Murray Deakin (Accused) Representation: Counsel: N Adams SC (Crown) J Hickleton (Accused)

Principles of Law

Section 133(2) of the CPA requires that a judgment in a trial by judge alone "include the principles of law applied by the Judge and the findings of fact on which the Judge relied". Section 133(3) provides that "[i]f any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter". The relevant findings of fact are set out in the balance of this judgment. At this point, I record the applicable principles of law and any "warning" that I have taken into account.
The first such principle concerns the onus and standard of proof. Other than in respect of the defence of mental illness and the partial defence of substantial impairment, the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything. In respect of mental illness and the partial defence of substantial impairment, the accused bears the onus of proof to the standard of on the balance of probabilities.
The second principle concerns the accused's right to silence. The accused was not required to and did not give evidence. The fact that he did not do so has no significance and has not played any role in this decision even in respect of matters upon which he bore the onus of proof.
The third principle concerns the elements of the offence of causing grievous bodily harm with intent to murder, that is attempted murder, being count 1. To prove that charge it is necessary for the Crown to prove beyond reasonable doubt that a deliberate act (or omission) of the accused caused really serious bodily harm and that it was carried out with an intention to kill (Crimes Act 1900, s 27).
The fourth principle concerns the elements of the offence of murder, being counts 2 and 3. In order to prove the charge of murder, it is necessary for the Crown to prove beyond reasonable doubt that a deliberate act (or omission) of the accused caused the death of the deceased and that such act (or omission) was carried out with an intention to either kill or cause really serious bodily harm or with reckless indifference to human life (Crimes Act, s 18(1)(a)).
The fifth principle concerns the interaction between the accused's plea of not guilty by reason of mental illness and the elements of each offence. The entry of that plea meant that an issue under s 38(1) of the Mental Health (Forensic Provisions) Act 1990 ("MHFPA") was raised as to whether the accused is criminally responsible for his actions. Where an accused is charged with murder (or an offence under s 27 of the Crimes Act) and an issue arises under s 38 of the MHFPA, the first issue that must be determined is whether the Crown has proven beyond reasonable doubt that it was a deliberate act or omission of the accused that caused the death of the relevant deceased in the case of counts 2 and 3 and caused grievous bodily harm in the case of count 1. If that is proven, it is then necessary to consider whether the accused is criminally responsible, that is, whether the accused has established on the balance of probabilities that he or she was "mentally ill at the time" for the purposes of s 38(1). If that is established, then the Court must enter a verdict of not guilty by reason of mental illness. If that is not established then the balance of the elements of each offence and any other defence such as substantial impairment must be addressed (see Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28 ("Hawkins"); R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32] per Hunt AJA, Spigelman CJ and Howie J agreeing ("Minani"); and R v Papley [2017] NSWSC 1068 at [6] to [7]).
The sixth principle concerns expert evidence. As noted, expert evidence from three psychiatrists was admitted at the trial concerning the accused's mental state at the relevant time. Expert evidence was also led from two pharmacologists. Juries are usually directed that they should give expert evidence careful consideration but recognise that if they do "not accept the evidence … [they] do not have to act upon it" particularly where "the facts upon which the opinion is based do not accord with the facts as [the jury] find them" (Judicial Commission of New South Wales, Criminal Trial Courts Benchbook at 2-1110). "It is trite to observe that juries (and judges sitting alone) are not bound to accept and act upon expert evidence but they are not entitled to disregard it capriciously" (see Goodridge v R [2014] NSWCCA 37 at [116]). I will apply that admonition. It is of particular significance in this case.
The seventh principle (or set of principles) concerns the defence of mental illness. Section 37 of the MHFPA requires a trial judge to provide an explanation to a jury of the "findings which may be made on the trial and the legal and practical consequences of those findings". This should include a reference to the existence and composition of the Mental Health Review Tribunal (the "Tribunal") and the functions of the Tribunal, including the provisions of s 39 of the MHFPA. I am aware of those matters.
Section 38 of the MHFPA provides: "38 Special verdict (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." (emphasis added)
By making provision for a person "not to be responsible, according to law" this provision adopts and applies the common law principles concerning the defence of mental illness (R v Fang (No 3) (2017) 264 A Crim R 554; [2017] NSWSC 28 at [67]; "Fang (No 3)"; R v S [1979] 2 NSWLR 1 at 38 to 41 which concerned a statutory predecessor). Thus the defence of mental illness is made out if the accused establishes on the balance of probabilities that, at the time of the act (or omission) that caused the deceased's death, he was labouring under such a defect of reason from a disease of the mind that he did not know the nature and quality of the act (or omission) or, if he did know it, he did not know that what he was doing was wrong in accordance with the ordinary standards of right and wrong adopted by reasonable people (McNaghten's Case (1843) 8 ER 718; (1843) Cl and F 200; The King v Porter (1933) 55 CLR 182; [1933] HCA 1; "Porter"). Further, this issue is case specific in that, in the case of murder, it is not whether the accused appreciated the wrongfulness of the taking of life generally, but whether the accused "cannot distinguish between right and wrong in regard to the particular act" (Stapleton v The Queen (1952) 86 CLR 358 at 374; [1952] HCA 56 per Dixon CJ, Webb and Kitto JJ; "Stapleton").
In Stapleton, Dixon CJ, Webb and Kitto JJ expanded upon what is meant by that limb of the test that requires a person to know that their actions were wrong (ie, the second limb), stating (at 367) that even if the jury considered "that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong", then that would not lead to a conviction "if the jury understands that, [a disease, disorder or defect of reason] ... so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing".
The eighth principle (or set of principles) concerns the relevance of self-induced intoxication to a defence of mental illness. The authorities on this topic were comprehensively reviewed by Johnson J in Fang (No 3) at [74] to [112]. For the purposes of this matter, it is only necessary to note his Honour's conclusion that (at [94]): "… authority in New South Wales supports the position that a drug-induced psychosis (or intoxication by alcohol or drugs) does not constitute a 'disease of the mind' unless there is also a separate psychiatric illness which is operative at the time of the act giving rise to the charge." (emphasis added)
The analysis in Fang (No 3) was endorsed on appeal (Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210). In particular, Beazley P, R A Hulme and Button JJ endorsed the proposition that "a drug‑induced psychosis (unaccompanied by a separate psychiatric illness) does not constitute a disease of the mind as understood in the common law" (at [76] citing Fang (No 3) at [99]).
The ninth principle (or set or principles) concerns the partial defence to murder of substantial impairment as provided for in s 23A of the Crimes Act. I outlined the legal principles concerning the partial defence in R v Quinn (No 2) [2016] NSWSC 1244 at [22] to [34]. This judgment should be read with that passage. Any self-induced intoxication of the accused is to be disregarded in determining substantial impairment (Crimes Act, s 23A(3)).

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