R v FERNANDO

Supreme Court of NSW|2011-12-07|Before: Hall J, Health J

Introduction 1On 5 August 2011 Shamin Fernando (the accused) was originally arraigned upon a charge that on the 22 nd of August 2010 at Glebe she murdered Vincent Fernando (the deceased). To that charge she has pleaded not guilty on the ground of mental illness 2On 24 October 2011 the Accused made an election pursuant to s32(1) of the Criminal Procedure Act 1986 for the charge against her to be tried by a Judge alone. Pursuant to that section the accused indicated that before her election she had sought and obtained advice. The Director of Public Prosecutions consented to the accused's election. 3Accordingly, the trial of the accused proceeded before me on that basis on 7 December 2011.

Background to the fatal incident 4On 7 December 2011 the Crown tendered three volumes of material which were admitted into evidence and marked respectively Exhibit A1, A2 and A3. Exhibit A3 contained, amongst other documents, statements of the Captain of the Sydney Pistol Club, the transcript of an electronically recorded interview conducted with the accused on Sunday 22 August 2010, the autopsy report dated 9 March 2011 and other statements and materials arising from police investigations in relation to the fatal incident. 5Exhibit A2 and A3 contained clinical notes and medical reports concerning the accused's medical treatment and hospitalisation including over a period of several years before the incident. 6The hearing proceeded upon the basis that those who had provided evidentiary statements were not required to be called by the Crown or cross-examined. In other words there was no dispute as to the essential underlying facts concerning events leading up to the death of the deceased. 7The accused is the daughter of the deceased. 8In June 2010 she made inquiries about joining the Sydney Pistol Club. She first attended the Club on or about 27 June 2010 and there underwent a safety course. She failed the initial course. Subsequently, the accused re-attended and passed the safety course. On 4 July 2010 she was approved as a probationary member at the Club. She completed course forms in which she crossed "no" when declaring if she had " any mental illness or other disorders that may prevent you from using a firearm safely". 9The accused subsequently attended the Woollahra Club on 10 July 2010 where she filled out a form. She again crossed the answer "no" to the mental health question. Subsequently, under supervision, she shot targets with a rifle. 10On 22 August 2010 the accused attended the Sydney Pistol Club stating that she wished to shoot in the match of the day. The Club had procedures for securing club pistols. Club members under those procedures were required to sign guns out on a guns log. The accused was given a Club owners .22 calibre Ruger semi-automatic pistol. She used it at the shooting range and later she put it in her handbag and left the Club with the gun in her possession. 11Later that afternoon an officer at the Club, who had initial possession of the guns used there noticed that the Ruger pistol was missing. He did not have the accused's phone number and could not make telephone contact. He contacted a person at the Club who tried to contact the accused but it appeared that contact was attempted on what was a wrong number. 12Members of the Club made contact with police at 3.12pm. At 3.14pm the accused rang police. She confessed to having shot the deceased. Police attended, secured the crime scene and took the accused to Balmain police station. Initially she refused to be interviewed on advice. However, subsequently, she did participate in an interview. 13In the interview (the ERISP) the accused was asked: Q114...In as much detail as you can, can you tell me what happened at the unit this afternoon. A. At about quarter to 2.00 or so I rang the old man, asked him if he could come round and load some software onto my computer and he said, Yes, what time? And I said, About 3.00. And he came round around 3.00 and sat down at the computer. And I went into my bedroom and pulled out the gun and opened the bedroom door, shot him a couple of times and he got up and kind of yelled in pain, and sort of tried to go into the kitchen, and then I shot him a couple of other times, and then he fell on the floor. And I wasn't sure if he was dead or not, but he was kind of making these sounds, so I thought be wasn't dead, so I went back to the bedroom and loaded up a couple more rounds and came back out and shot him again three times when he was laying between the kitchen and the, the main part of the house, the lounge room or whatever. And then he stopped moving. Well I'd thought he'd stopped moving. Then I sat down for a little while and I was wondering if the neighbours would come or, or whatever, but nothing really happened. So then I went, got the phone and called Triple 0, told them that I needed the police and that I'd told them my name, my address and, and then she asked me all these questions, and she said to stay on the phone..." 14The ERISP also records the following questions to and answers by the accused. Q123 OK. So that's when you spoke to him on his mobile. A. Spoke to him directly on the mobile, yeah, at 19 minutes past 2.00. Q.124 And why did you ask him to come round? What was the purpose of him coming around? When you made the phone call what were you thinking? A. I wanted to shoot him. Q.125 So when you made the phone call you wanted to shoot him? A. Yes Q.126 So why did you ask him to come around and load software on your computer? A. If I asked him to come round so I could shoot him I don't think he'd come. Q. 127 Fair enough. So when you spoke to him at 2.19.. A. Yeah. Q128. ... what did you say to him? Do you remember? A. Yeah, I said, He he said Yeah, I just got your message. Q.129 Yeah A. We've been in the garden. When do you want me to come round? And I said, At, I looked at my watch and it was 2.19, so I said about 3.00 o'clock. And he said Yep, OK, I'll I'll come round then. Q.130 So what time did he arrive at your unit, do you remember? A. I think a little after 3.00. Q.131 A little after 3.00 A. Yeah. Q.132 And -- A. About two minutes after 3.00. Q.133 Just, what did he do, what happened when he arrived at the unit? A. I opened -- Q. 134 Did you say anything to him? A. Yeah, I opened the door and said to come in and I said I needed to edit an interview tonight and if I could do it here it would make work tomorrow much more smooth. And I've got the disc here, the computer was on and he went to sit down, and it's one of those ergonomic chairs, and showed him how to sit down. And then he said, Well what you have to do first is to, he said, You go into accessories and then the menu for some sort of setting. And he said, What you do is you, you put this down and you click system restore, that way if anything happens you won't lose anything. And I just got annoyed with him them [sic] and said, I'm just going to the loo. And went back into the bedroom and then got the gun. Q. 135 Where was the gun in the bedroom? A. It was on my bed under the quilt. Q. 136 Under the quilt? A. Yeah. Q.137 And your bed, what sort of bed have you got? A. It is double innerspring mattress queen size, yeah. Q. 138 When did you put the gun under the quilt? A. At about, at about quarter to 3.00. Q. 139 OK. And why did you put it under the quilt? A. So he wouldn't see it. Q. 140 OK So you removed the gun from under the quilt. A. Yeah, before I shot him. 15On the evidence tendered in the Crown case there is no dispute but that the following matters were established by the evidence:- (i) The deceased Vincent Fernando died at Unit 12, 2 Victoria Street, Glebe on 22 August 2010; (ii) Vincent Fernando's death was caused by gunshot wounds to his head. (iii) That the accused inflicted the injuries to Vincent Fernando which caused his death 16Subject to what follows about the accused's mental condition, I formally record that I find that each of the elements of the offence of murder which the Crown is obliged to prove beyond reasonable doubt have been made out. 17The sole issue requiring the court's determination turns upon an assessment of the accused's mental condition. In R v Jennings [2005] NSWSC 789 Kirby J addressed the defence of mental illness in the following terms at [25]-[28]:- " The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial. The defence of mental illness arises where the accused satisfies the Court, as a matter of probability, that, at the time of committing the act, he comes within what is known as the M'Naghten rule ((1833) 10 Cl and Fin 200 [8ER 718]). The M'Naghten rule has two limbs. The accused must demonstrate either that 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 his act or, alternatively, if he did know, then he did not know that what he was doing was wrong. The first limb, in lay terms, requires that the accused did not know what he was doing, whereas the second deals with his appreciation of the morality of what he was doing, that is, whether it was right or wrong. Here, Mr Jennings told the police that he knew that when he wielded the knife he was attempting to stab the victim. And, of course, he did stab the victim. The issue, therefore, is whether, as a matter of probability, he did not appreciate that what he was doing was morally wrong, and that because of mental illness which deprived him of the ability to reason and form judgments. Where the defence is made out, the appropriate verdict is "not guilty by reason of mental illness" (s38 Mental Health (Criminal Procedure) Act 1990) ("the Act"). The person, however, is not then released. In accordance with s39 of the Act, a person, the subject of such a verdict, is detained "in such place and in such manner as the Court thinks fit until released by due process of law". A person subject to an order made under s39 becomes a forensic patient under the jurisdiction and supervision of the Mental Health Review Tribunal, which makes recommendations to the Minister (Mental Health Act 1990, s81). Where, as here, the issue of M'Naghten mental illness is raised, whether by the Crown or the accused, or, indeed, by the Judge, the onus rests upon the accused to prove that defence on the balance of probabilities (R v Ayoub (1984) 2 NSWLR 511 at 515)..." 18In considering the second limb of the M'Naghten test, it is convenient to set out what was said by Dixon J (as his honour then was) in R v Porter (1936) 55 CLR 182 at (189-190):- "The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? 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."

(a) The reports 19Dr Bruce Westmore, on behalf of the accused, and Dr Olav Nielssen, for the Crown, both specialists psychiatrists, were requested to examine and prepare psychiatric opinions in respect of the accused. Dr Westmore's report of 18 April 2011 was tendered and became Exhibit 1. The report of Dr Nielssen dated 30 August 2011 was tendered and became Exhibit B in the proceedings. 20Neither Dr Westmore nor Dr Nielssen were required to give oral evidence. Accordingly, the Crown and the accused relied upon Exhibit 1 and Exhibit B as comprehensively dealing with all relevant issues associated with the accused's psychiatric condition. 21I will return below to an analysis of those opinions. Before doing so, I set out relevant details concerning the accused.

(b) The accused 22The accused was aged 43 years at the date of the fatal incident on 22 August 2010 (date of birth 16 July 1967). She is accordingly presently 44 years of age. 23According to the material in Exhibits A1, 2 and 3 and the history contained in the medical reports, the accused was born in Colombo, Sri Lanka and came to Australia with her family at the age 4. She was raised in Sydney. She was educated to year 12 although because she missed one subject she did not get her HSC certificate on the conclusion of year 12. She was given a Certificate of Attainment. 24The accused attended TAFE in 1989 and repeated her HSC. According to the history she provided to Dr Westmore she was above average in most of the subjects. 25She was initially employed in advertising agencies and then worked for a record company and at times in a bar and as a waitress. She undertook market research work and she told Dr Westmore that she at one stage worked as a primary school teacher. She was experienced in data entry. She later obtained a part time job with a community radio station. She held such a position as at the date of the fatal shooting. 26According to the history provided by the accused to Dr Nielssen she completed two years of a Bachelor of the Sydney Arts course at university before completing a Bachelor of Communications at the University of Technology, Sydney. It appears that her first employment occurred in the year 1998. 27Exhibit A2 contains clinical notes and reports of the accused's treating psychiatrist, Dr Deborah Rozea and those of Dr Keith-Y Chee, consultant psychiatrist. 28Dr Chee in his report of 6 December 2001 written to Dr Rozea recorded a history of the accused having suffered from a paranoid psychosis since 1988. In that report Dr Chee observed:- "Her predominant delusion is that of a global conspiracy against her, engineered by her father and a former teacher. She believes that she is under surveillance, that her personal details are being broadcast and that information is being withheld from her.": Exhibit A2 at 362 29It was also stated in the report that the accused was a suitable candidate for the Clozapine Program (Clozapine is an anti-psychotic medication). 30A number of reports written by Dr Rozea in the period from 29 June 2007 to 20 August 2008 were in evidence. Dr Rozea treated the accused from 2000. She recorded that the accused presented with unstable schizophrenia and a major depressive disorder. In a report written on 21 March 2008 Dr Rozea reported that the accused had responded well to Clozapine and had been stable for some years. Dr Rozea however noted that when there was an attempt to reduce the dosage and cease the medication, the accused became quite unwell. She recorded that the accused had been compliant with Dr Chee's advice and her recommendation to re-start her Clozapine medication and she had become stable again at the time of that report 31The clinical notes in relation to medical examinations indicated the accused was under regular review and the medication prescribed for her condition was varied from time to time. The last record of an attendance for medical review before the fatal incident on 22 August 2010 was on 13 August 2010. The note for that attendance records, amongst other matters:- " ... no evidence of psychosis. Calm, coherent, logical..."

Psychiatric medical opinion 32Dr Westmore is a highly experienced forensic psychiatrist. He examined the accused on 9 April 2011 at which time the accused was detained in a correctional centre. Dr Westmore had available to him relevant clinical notes and records of the treating psychiatrics as well as some notes which the accused herself had made. Dr Westmore set out the history as provided by the accused to him including in particular a history of her prior hospitalisation in 2001 at Rozelle Hospital, Wesley Hospital and her admission to St John of God Hospital in December 2001. Each of these hospital admissions related treatment for psychiatric symptoms. Dr Westmore questioned the accused as to what had happened up to the fatal incident. The accused replied:- " ... For a long time I struggled with the paranoid belief that I was in a pseudo reality style TV show and that it was being produced by my father and also there were a lot of sinister aspects to that." 33The accused continued by stating:- "the biggest one was that I had several serious terminal illnesses and if I couldn't extradite myself from the show I was going to die. Just before the incident I became quite convinced that death was imminent. I thought I had AIDS, thyroid cancer, Alzheimer's and really bad diabetes that would require my legs to be amputated." 34The accused continued:- "The only way I could get out of the show and save my life was to kill him." 35In answer to a question from Dr Westmore as to how long she had had such thoughts, the accused replied:- " I started believing I was in the TV show from February 1998 but the thought that it was a real emergency and I had to kill him started in about June 2010." 36Dr Westmore's report included an account of the accused's drug and alcohol history. This included the accused's account of having started smoking cannabis at the age of 16 and occasionally other drugs. Cannabis was said to be the principal drug of use and that she smoked the drug daily between the ages of 20 and 22. She said that she then suffered a psychotic episode and stopped using the drug. 37The history contained an account of her having again started smoking cannabis in about 1995 and was smoking that drug heavily until 2000. She said to Dr Westmore that she stopped again after she was admitted to the Rozelle Hospital. 38The accused acknowledged to Dr Westmore in relation to her actions (at p.6):- "...the basic, most fundamental thing is that it is wrong to take a life legally but at the time I thought I was acting in self defence the similar way to people in violent domestic situations or where someone is in the situation where you have to defend yourself, like in a war. I thought that was the only way out, to be free and given the circumstances I would be vindicated but I'm not a violent person, I haven't been involved in violence before." 39Dr Westmore reached a provisional diagnosis that the accused suffered from a psychotic illness, namely a chronic paranoid schizophrenic illness. He noted that the accused had had a long history of suffering psychiatric symptoms at least at the time she first consulted a psychiatrist in 1988. He considered that the accused would have available to her a defence of mental illness:- "... she was suffering from a disease of mind, specifically a psychotic illness, most likely a paranoid schizophrenic illness, at the time she killed her father. She was acting on delusional beliefs in relation to her father when she killed him. The disease of the mind would have totally deprived her of the capacity to know that she ought not to do the act". 40Dr Westmore stated that the accused would require indefinite psychiatric support and supervision. 41Dr Nielssen is also a highly experienced forensic psychiatrist. He saw the accused whilst in custody on 11 August 2011. He identified in his report the detailed material that had been supplied to him for the purposes of assessing the accused. He set out in his report a detailed history which, in general terms, was consistent with the history recorded by Dr Westmore. The history which he obtained from the accused included periods of heavy cannabis use in particular from the period after she had left home up to the year 2000. 42One noteworthy matter in the accused's history and arising from Dr Nielssen's report is the possible role that cannabis may play in relation to schizophrenia, which, on the probabilities, contributed to the accused's illness. In that respect Dr Nielssen noted:- "The diagnosis of cannabis abuse disorder is made on the basis of the history of past regular use of cannabis and the probable role of cannabis use in triggering her schizophrenic illness." 43He noted references in Dr Rozea's notes to delusional material. He also noted that the accused's responses in the ERISP were coherent and detailed. He considered that the overall history obtained by Dr Westmore was largely consistent with the history that he had obtained from the accused. Dr Nielssen diagnosed:- (i) Chronic schizophrenia, (then) currently in partial remission. (ii) Cannabis abuse disorder, also in remission. 44Dr Nielssen expressed his opinion as follows:- (at pp 7-8) " The diagnosis of chronic schizophrenia is made on the basis of the history of symptoms of the disorder provided by Ms Fernando, the detailed corroborative information in the medical reports and in Ms Ferando's mother's statement, and aspects of her presentation during the recent interview when she was quite blunted and incongruous in her emotional responses, had concrete and inflexible thinking consistent with the intellectual impairment associated with chronic mental illness and seemed ambivalent in her description of her delusional beliefs and unable to recognise some of her symptoms.] 45Dr Nielssen further concluded that at the time of the offence the accused was affected by an acute exacerbation of her chronic mental illness. He stated that he believed that the accused had the defence of mental illness open to her. He said in this respect:- (at p8) "... At the time of the offence she was affected by an acute exacerbation of chronic schizophrenia, which is a disease of the brain which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. Her mental illness gave rise to a defect of reason in the form of an elaborate and bizarre delusional belief regarding her father and what she believed to be his role in tormenting her." 46Whilst Dr Nielssen noted that the accused was clearly aware of the physical nature of her act in her deliberate plan to obtain access to a firearm and lure her father to her home to shoot him, he nonetheless stated:- " ... However, I believe she was deprived of the ability to recognise that her actions were morally wrong, as she seemed to be unconcerned about the effect of her actions as she described them to the police and believed that she would be pardoned for killing her father after exposing his role in her persecution." 47He noted that the exacerbation of her mental illness deprived her of the ability to recognise that her beliefs were delusional. Accordingly, he said, they deprived her of the ability to reason with sense and composure about the nature of her symptoms or consider the alternative courses of action available to her. 48Dr Nielssen concluded by stating that the accused " ... will require long term supervision from a forensic mental health service and indefinite treatment with an adequate dose of anti-psychotic medication " (at p9). 49The Crown prepared a comprehensive summary of the accused's psychiatric history based on clinical notes and reports copies of which are contained in Exhibits A1, A2 and A3. The summary is contained within those Exhibits and covers the period 1998 to 17 August 2010. 50The summary indicates that a initial diagnosis of schizophrenia appears to have been made in 1998 when the accused attended on a Dr Jennings and her first hospital admission for psychiatric symptoms was to Rozelle Hospital on 30 December 2000. She commenced psychotherapy with Dr Deborah Rozea on 7 June 2001. Particular entries evidence reported delusions affecting the accused including delusions involving her father, as long ago as 6 December 2001. Similar delusions were noted on 28 April 2004 and 26 May 2004 and 19 December 2007.

Submissions 51The learned Crown Prosecutor, by way of final submission, affirmed, on the basis of all the material in evidence that the appropriate verdict is one of not guilty by reason of mental illness. 52As to the verdict and order, in the event of a finding that the defence of mental illness is made, the Crown took no issue with the suggested terms of the verdict and order as formulated in paragraph 9 of Mr Stratton's written submissions. 53Subsequent to the hearing on 7 December 2011 I received communications on behalf of the Crown and the accused as to the appropriate placement of the accused in a forensic hospital. I refer to the email received from Mr Stratton 13 December 2011 which has been marked as MFI 1 and a letter from Dr Gordon Elliott Staff Specialist Psychiatrist, Justice Health dated 13 December 2011 which has been tendered and marked Exhibit "2". 54In Exhibit 2, Dr Elliott stated that in the event that the defence of mental illness is accepted the most appropriate placement for the accused is the Forensic Hospital at Long Bay. He stated that she needs long term psychiatric care and has more acute considerations regarding her care and treatment that can only be addressed in the hospital setting. 55Dr Elliott stated that if the accused is found not guilty under s39 of the Mental Health (Forensic Provisions) Act 1990 he anticipates that she will be given a prompt hearing by the Mental Health Tribunal under s44 of that Act. 56On behalf of the accused, Mr Stratton SC, who appeared for the accused, confirmed in his written submissions that the only issue in the case was whether or not the accused has, on the balance of probabilities, established the defence of mental illness. In that respect, the relevant test of mental illness was addressed in the written submissions. Particular references were made to the conclusions expressed by Doctors Westmore and Neilssen in the submissions. 57Mr Stratton submitted that the appropriate order was for an order pursuant to s39(1) of the Mental Health (Forensic Procedures) Act. 58Mr Stratton also submitted that the court would find that the defence of mental illness had been made out and that the court would return a verdict that the accused was not guilty of the charge of murder by reason of mental illness. 59He submitted that an order ought to be made that the accused be detained at Silverwater Women's Correctional Centre or such other place as determined by the Mental Health Review Tribunal until the accused is released by due process of law.

Determination 60Subject to the issue of mental illness I have earlier indicated that the elements of the charge of murder have been established by the evidence in the Crown case. On the question of the accused's mental condition at the time of the fatal incident the evidence, in my opinion, it is clearly established that the accused does have available to her the defence of mental illness. I accordingly determine that by reason of such mental illness the accused is not guilty of the charge of murder.

Orders 61In accordance with s38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused is not guilty of murder by reason of mental illness. 62I order that the accused, Sharmin Fernando, be detained pursuant to s39(1) of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. . I note Dr Gordon Elliott in his report of 13 December 2011 has suggested that if the accused's plea of not guilty by reason of mental illness is accepted by the court that the most appropriate placement for her is in the Forensic Hospital at Long Bay. 63The court recommends that the Mental Health Review Tribunal give consideration to transferring Ms Fernando to a secure forensic hospital as soon as possible. 64The Registrar is to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders made by the Court. I direct that the reports of Dr Nielssen and Dr Westmore be drawn to the attention of Justice Health.

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 December 2011

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