R v Debrincat

Supreme Court of NSW|2015-07-28|Before: Mathews J

JUDGMENT

On 28 July 2015, Colin Robert Debrincat was charged by way of indictment with one charge, namely that on 3rd October 2013, at Gosford, he murdered John Shiels. The accused (as I shall call him in these reasons) pleaded not guilty on the ground of mental illness.
An application had previously been made by the accused, and consented to by the Crown, that the trial be tried by a judge alone. Accordingly, I made an order to that effect pursuant to s 132(2) of the Criminal Procedure Act 1986 and the trial then proceeded before me without a jury.
The trial itself was extremely short. A number of documents were tendered by counsel, all of them by consent. Both counsel were in agreement that the appropriate verdict in all the circumstances was the special verdict of not guilty by reason of mental illness.
All relevant documents, including psychiatric reports, had previously been provided to me by counsel. Having read those documents I was firmly of the view that this was the only appropriate verdict in the circumstances. Accordingly, I formally entered a verdict that the accused was not guilty by reason of mental illness. I made a number of ancillary orders, all of them by consent. I said that I would deliver the reasons for my verdict at a date to be fixed.
These, then, are my reasons for finding the accused not guilty by reason of mental illness.

Circumstances of the Killing

The accused and Mr Shiels were both residents of a unit complex in Gosford, NSW which was run by the Department of Housing. The accused had for some time had a fixation that Mr Shiels was intent on harming him. Indeed, on the day before the killing, he told another neighbour that Mr Shiels was "after him", and had been threatening him. He said that he was tired of living in fear.
In the very early hours of 3 October 2013, the accused retrieved a .38 calibre revolver from within the roof cavity of his unit, and loaded it with five bullets. For the rest of that night he slept with the loaded revolver underneath his pillow.
In the early afternoon of that day the accused was at home when he saw Mr Shiels walking into his own unit in the complex. The accused took the revolver from underneath his pillow and waited at his door. Sometime later Mr Shiels came out of his apartment and walked into the internal stairwell of the building. The accused followed him and called out to him. Mr Shiels turned around, and the accused shot him in the upper body, causing him to fall down. However he managed to get to his feet and started to run down the stairs towards the complex's underground car park. The accused fired three more shots at him, and Mr Shiels fell onto the floor of the car park. The accused then went up to him while he was lying on the ground, and fired the last bullet at close range into his head.
The latter part of this attack was witnessed by other residents in the complex. The police were called and a crime scene established, as Mr Shiels was clearly dead. In the meantime, the accused had returned to his unit. There he cooked and ate lunch, and made at least two telephone calls in which he said that he had just shot someone. The accused still had the revolver with him, so various other police units were called to the scene. Ultimately the accused was arrested at about 4.15 that afternoon, and taken to Gosford Police Station. The revolver was found on a table inside his unit.

The accused's ERISP

At 6.53 that evening the accused was interviewed by police at Gosford Police Station. He said that he had been living in the unit complex for about four years. He described it as "terrible", saying that he was so scared of the deceased that he had spent a great deal of that time living in his car. When he was in the unit complex he regularly barricaded his door. He said the deceased was "mad", and "the worst person I've ever met in my life." At another point he said, about the deceased: "He's the sort of bloke who'd come at you in the dark or through your roof, you know? And he's a knife man." He said that the previous night he had not slept much. He realised that he had to bring the matter to a head and defend himself, he had no choice. It was for this reason that he took the revolver out of its hiding place and loaded it. He described seeing the deceased that afternoon walking towards his own unit. He, the accused, then waited for the deceased to come out again. He went on to describe the shooting of the deceased in very frank terms. He said that afterwards he felt bad in one sense, but relieved in another.
The accused was then charged with the murder of the deceased. He has been in custody ever since.
A post mortem examination was performed on the deceased by the forensic pathologist, Dr Allan Cala. This showed multiple gunshot wounds to his torso and one to his head. The latter wound was inflicted at close range (within centimetres), and would have been fatal by itself. Similarly, one of the chest wounds, which passed through the deceased's heart, would have been fatal by itself. Other wounds to the chest and abdomen would not have been fatal by themselves, but would have required surgical treatment.

Background of the Accused

A number of the answers given by the accused in his ERISP were strongly indicative of mental disturbance, and he has since been interviewed, for the purpose of these proceedings, by forensic psychiatrists on behalf of both the Crown and the defence. Their reports, which I will be referring to in more detail later, provide some information as to his background.
The accused is now 51 years old, having been born on 24 September 1964. On all accounts he had an uneventful childhood. He left school after Year 10, and thereafter worked with his father in building and home maintenance. Commencing in his mid-teens, he has taken a number of illegal drugs over the years, including cannabis, heroin, cocaine and amphetamines. He also commenced drinking alcohol in his teens, and admitted to binge drinking during a significant part of his adult life. His father died in 2005 and his mother in 2011, both of them having suffered from cancer. The accused has had one long-standing relationship in his life: for about 15 years he lived with a woman who already had two children. They had one son together, who is now about 19 years old. They separated in 2000, since which time he has had no long-term relationships. Over the years he has been convicted of a number of offences, some of them involving significant violence.
The accused first came to the attention of mental health authorities in 1999, when he was seen by the Northern Beaches Mental Health Service. At that time he was claiming that people were threatening to harm him and his family. He was treated as paranoid and referred to a psychiatrist. Over the next three years he received treatment at that centre, where he was diagnosed as suffering from a paranoid schizophrenic disorder.
The accused's history of violence has continued since his incarceration for the current offence. He has been involved in a number of assaults on other inmates, and in August 2014 an order was made under s 55(3) Mental Health (Forensic Provisions)Act 1990 ("the Act") that he be transferred to a mental health facility. He has remained in mental health facilities within the prison system ever since.
At this stage, I turn to say something about the defence of mental illness.

Defence of Mental Illness

It has long been established that, once the issue of mental illness has been raised, it is to be determined in accordance with the rules set out in R v McNaghten (1843) 8 ER 718, (commonly known as "the McNaghten Rules"). These rules provide that, in order to establish the defence of mental illness, the defence must prove, on the balance of probabilities, that at the time of committing the offence, the accused was suffering from such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.
This exposition of the defence has stood the test of a great deal of time. Some aspects of it have been enlarged upon in the intervening period, but the words generally mean precisely what they say. There is only one aspect of the defence which requires further elucidation in the circumstances of this case, namely the requirement that the accused did not know that what he was doing was wrong. It is now firmly established that this does not relate to his understanding of the illegality of his actions, but rather to his appreciation, in a deep or moral sense, of the wrongfulness of his conduct. As Dixon J (as he then was) said in The King v Porter [1933] HCA 1; (1933) 55 CLR 182: "If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."
At this point I turn to discuss the psychiatric reports which were tendered at the hearing.

Psychiatric Reports

The defence tendered three reports of the forensic psychiatrist, Dr Gerald Chew, dated respectively 27 November 2014, 23 March 2015, and 22 July 2015. In his first report, Dr Chew addressed the issue of the accused's fitness to plead. On the basis of his interview with the accused, the doctor considered that he was probably suffering from chronic paranoid schizophrenia. He considered that the accused was then fit to stand trial although, given his diagnosis, this might well vary over time.
Dr Chew again interviewed the accused shortly before his second report of March 2015. On this occasion the doctor had been requested to address the issue of the accused's mental state at the time of the offence, and particularly whether he had the defence of mental illness available to him. On the basis of the interview, together with the records available to him, the doctor considered that the accused was suffering from schizophrenia, which is a disease of the mind, at the time he killed Mr Shiels. He said that the accused was acutely psychotic at the time, with beliefs held to a delusional intensity that he was being targeted and would be killed if he did not murder the victim. This delusional system constituted a defect of reason caused by his mental illness. The doctor considered that while the accused did know the nature and quality of his actions and probably understood that what he was doing was legally wrong, he felt morally justified, as he felt that he had no option but to kill before he was killed. On this basis Dr Chew was of the opinion that the accused has the defence of mental illness available to him.
Dr Chew wrote his last report, dated 22 July 2015, after having been provided with additional documentation about the accused's background. His diagnosis that the accused suffered from chronic paranoid schizophrenia was unchanged after reviewing this material, as was his opinion as to the availability of the defence of mental illness.
Professor David Greenberg interviewed the accused at the request of the Crown on 23 May 2015, at the Metropolitan Remand and Reception Centre at Silverwater. His report is dated 28 May 2015. He had also been provided with extensive material about the accused's background and the circumstances of the killing. On the basis of the whole of the material Professor Greenberg concluded that the accused was suffering from a paranoid schizophrenic disorder. This constituted a disease of the mind, as a result of which the accused was labouring under a defect of reason, namely his paranoid delusions that Mr Shiels constituted a serious threat to his life. The professor considered that the accused probably did know the nature of his actions, but did not fully understand the quality of those actions. Although he knew that the killing of the deceased was wrong in a legal sense, he felt morally justified because of his paranoid delusions.
For these reasons Professor Greenberg was of the opinion that the accused has a defence of mental illness available to him in relation to the present charge of murder.

Conclusion

The expert evidence being all one way on this issue, I had no difficulty whatsoever in finding, on the balance of probabilities, that at the time the accused killed Mr Shiels he was mentally ill in the relevant sense. It is for this reason that I entered a verdict of not guilty by reason of mental illness at the end of the very brief hearing of this matter. As already mentioned, both counsel agreed that in all the circumstances this was the only appropriate verdict.
The only remaining matter to be mentioned arises by virtue of the requirement, in s 37 of the Act, that if at the trial of a person a question is raised as to whether the accused was mentally ill at the time of committing the offence, the Judge is obliged to explain various matters to the jury. These include the findings which can be made at the trial, the legal and practical consequences of those findings, and a reference to the constitution and functions of the Mental Health Review Tribunal, particularly having regard to s 39 of the Act.
I consider that it is adequate for present purposes for me to say that I had already informed myself of those matters at the time that I entered my verdict in relation to this charge.

Orders

On 28 July 2015, I made the following orders: 1. Enter a special verdict of Not Guilty by Reason of Mental Illness. 2. Order that Colin Debrincat be detained at the MRRC at Silverwater or such other places as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 3. Direct that the Registrar of the Court to notify the Minister for Health of this judgment and order. 4. Direct that the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation. 1. a copy of my reasons for verdict and orders once delivered; 2. a transcript of these proceedings; 3. a copy of each of the exhibits tendered at the trial. 1. Order that the committal proceedings in relation to the charge of aggravated robbery - that Colin Robert Debrincat on 17 January 2002 at Sydney in the State of New South Wales did rob James Allen of certain property, to wit, a Smith and Wesson .38 calibre revolver, the property of Chubb Security and at the time of the robbery used corporal violence on the said James Allen to be continued before a Magistrate in the Local Court at Gosford

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: 06 November 2015

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