Solicitors:
Jennifer Chalker Lawyer (for the accused)
File Number(s): 2019/00277069
[2]
Introduction
On 5 September 2019, at 5:45 AM the 53 year old complainant was out the front of her coffee shop in Bega enjoying a cigarette and talking with a customer. As she re-entered her shop Manning Francis came inside, along with three regular male customers. Francis had a claw hammer in his hand. He raised the hammer and struck at the back of her head with it. The complainant had no idea what had hit her. She yelled "what the fuck' and grabbed her head. The hammer struck the right side of her head where her right ear meets the jaw causing a laceration. There were more hits with the hammer but none as severe as the first. She had never seen her attacker before.
The three male customers wrestled Francis to the ground and held him until police arrived. He was ranting and raving and what he said was garbled and made no sense to them.
The complainant was treated at Bega Hospital and the cut or tear near her ear was sutured. Thankfully, no fractures were detected. She was left with bruising on her neck, head and back. She told me today she has some nerve damage to her cheek, which makes it difficult to close her right eye. That in turn leads to a dry eye. She still suffers headaches and migraines.
R v Francis [2020] NSWDC 635 | Case summary | Zoe
Francis was arrested. He was initially taken to Bega Hospital for a mental health assessment. He was examined but not admitted. He was the charged with wounding with intent to cause grievous bodily harm: s 33(1)(a) Crimes Act 1900. Bail was refused. He has been in custody since that date.
It was 3 months before he and a chance to see a mental health professional. He was transferred to the Mental Health Screening (Hamden) Unit in the Silverwater Correctional Complex and commenced on medication. He remained there until he was transferred to the South Coast Corrections Facility preparatory to trial. He appeared at Bega Court today via video link. He was to be on a medical escort back to the Hamden Unit today but that transfer has been delayed so this matter can proceed today.
Today, Francis was arraigned and said he was not guilty. Today, sitting as a judge alone, I heard evidence in relation to that allegation. I directed the matter proceed judge alone. On legal advice Francis consented to that course. The Crown did not oppose a judge alone trial: s365 Criminal Procedure Act 1986. Although no issue was in contest and most of the evidence in documentary form I direct myself as I would a jury, including as will be clear from this judgement about how the Mental Health (Forensic Provisions Act 1990 applies to matters such as this.
I heard from the complainant and the eyewitnesses to the attack, who are to be commended for their prompt intervention; intervention that prevented more harm being done to her. Their statements were also tendered as exhibits. I also received medical records and expert reports in relation to Francis.
There is no real issue between either the prosecution and defence - both take the view, supported by expert opinion of two forensic psychiatrists, that Manning Francis is not guilty of the charge; not because he did not do what was alleged and intend to do it but because of his severe long standing treatment resistant mental illness.
I must reach my own independent conclusion but I have no hesitation in finding Manning Francis is not guilty of the charge that he on 5 September 2019 wounded the complainant with intent to cause her grievous bodily harm. These are my reasons for reaching that special verdict.
[3]
Procedural matters
I was told that Manning Francis's fitness to be tried is not an issue. He understands what is going on and can participate in these proceedings with the assistance of his solicitor and counsel.
Francis was represented by Mr Williams. Mr Fox, Crown Prosecutor, appeared for the Director of Public Prosecutions.
There was no dispute on any factual, forensic or legal matter. There was no dispute the formal elements of the offence were established beyond reasonable doubt.
[4]
Undisputed facts
It is not in dispute that on 5 September 2019 that Francis struck the complainant with a claw hammer causing a wound to her ear and that he did so intending she be caused grievous bodily harm.
It is not in dispute that earlier that morning he had left his flat in Bega to go for a walk to clear his head. He had woken at about 4:00 AM, angry and stressed, with a sense of foreboding. He took the claw hammer with him because, as he told Dr Allnutt, he was convinced someone was going to harm him. He saw the lady from the coffee shop across the street and went across the road and hit her but there was no real reason he just panicked. He told Dr Allnutt he was aware what he was doing was wrong "but I still went and done it…there was no reason."
Francis is now 25 years old. He comes from a loving family but the family has a genetic predisposition to mental illness. Since he was a teenager he has had problems with receptive language skills and it was suspected he may have Asperger's spectrum disorder or a pervasive developmental disorder. He was also found to be warm and insightful and it was thought that perhaps there were logical explanations for the stress he felt. He has been seeing psychiatrists and psychologist since 2017 and receiving antipsychotic and anxiolytic medication. In 2018 a psychiatrist noted his presentation was consistent with moderate severity autistic disorder. He has demonstrated self-harm activity and engaged in impulsive behaviour including an attack on his father in 2017 and an incident in 2019 when while wielding a tent pole he chased a farmer down a street in Bega. He has been admitted to mental health units both as a voluntary and involuntary patient.
The tent pole incident in mid-2019 led to him being scheduled under the Mental Health Act 2007. In September 2019 Francis was still seeing a psychologist and taking medication for a panic disorder. Francis does not take illicit drugs and only has a beer or two once a year.
[5]
The defence of mental illness
Although not strictly a defence the law will excuse a defendant who commits a crime if at the time they were so mentally ill, that they could not be held responsible according to law." Section 38 Mental Health (Forensic Provisions) Act 1990 provides;
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.
The onus of proving this fact is on the accused person or defendant who must establish on the balance of probabilities that they were mentally ill at the time of the doing of the act constituting the alleged offence. The mental state of the defendant before or after that time is only relevant in so far as it assists the determination of what his mental state was likely to have been at that time.
Section 38 operates to give effect to the common law principles concerning the defence of mental illness. That 'defence' was first set out in in M'Naghten's Case, Re (1843) 8 ER 718. It was explained and refined in The Queen v Porter (1933) 55 CLR 182, Sodeman v The Queen (1936) 55 CLR 192 and Stapleton v The Queen (1952) 86 CLR 358.
"To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
"Wrong" in the second limb of the M'Naghten rule means "wrong" according to "ordinary standards adopted by reasonable men (sic)": Stapleton v The Queen at 375
The defendant's state of mind must have come about from a disease, disorder or disturbance arising from some condition, which may be temporary, or of long standing, curable or incurable. Such a condition can be caused by some physical deterioration of the brain cells, but not necessarily. It may arise from some mental malfunction with no apparent organic basis. The cause of the disease may be unknown. In all cases it must result in the function of the person's reason or understanding being thrown into a state of derangement or disorder.
A distinction is drawn between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor, which is transient, that is, passing and not prone to recur.
When considering whether a defendant did, or did not, know the act to be wrong, it must be asked: could the defendant through a disease, disorder or disturbance of the mind think rationally of the reasons, which to ordinary people would make that act right or wrong? If the defendant could not sense or appreciate or understand that his or her act was wrong the defence will be established.
Even if the defendant knew in some sense their act was wrong, if through a disordered condition of the mind the defendant could not reason about the matter with a moderate degree of sense and composure then the defence will also be established.
When considering the defendant's capacity to reason or know what he or she was doing or know the physical nature or quality of the act or know that the act was wrong, the ordinary standards of reasonable people in our community is applied.
While medical evidence is not strictly required to prove the defence it is the usual and preferred option to call expert evidence from a psychiatrist or a psychologist or both: The Queen v Lucas (1970) 120 CLR 171.
[6]
Expert Psychiatric Opinion
Dr Stephen Allnutt, a Forensic Psychologist, examined Francis and reviewed his personal, medical and psychiatric history. In Dr Allnutt's opinion, at the time of the hammer attack, Manning Francis was suffering from an autistic spectrum disorder, cognitive difficulties and illogical thought processes associated with that disorder with likely psychotic symptoms. Given that history and having reviewed evidence of all that occurred on 5 September 2019 he formed the opinion that at the time of the attack Francis' behaviour was consistent with psychosis and a diagnosis of a chronic psychotic disorder. He diagnosed schizoaffective disorder and a differential diagnosis of paranoid schizophrenia. In his opinion the attack by Francis was committed as a result of a disease of the mind that caused a defect of reason and the defence of mental illness is available to him.
Dr Kerri Eagle shares that opinion and agrees with the diagnosis of schizoaffective disorder or schizophrenia. In her opinion Francis' history revealed historical beliefs that were odd and in keeping with delusions. She accepts he diagnosis of autism spectrum disorder and notes a history of him displaying signs and symptoms consistent with a psychotic disorder combined with severe mood disorder. His signs and symptoms are also consistent with a panic disorder. His cognitive disabilities raise the possibility he has an intellectual disability but further testing would be required before this diagnosis can be confirmed.
In Dr Eagle's opinion on 5 September 2019 Francis, suffered from a disease of the mind that caused a defect of reasons within the meaning of the M'Naughten rules. At the time he was experiencing signs and symptoms including persecutory beliefs consistent with psychosis. She wrote, "Psychosis, combined with the features of autism spectrum disorder had the potential to result in significant difficulty interpreting reality and interactions with others, resulting in an impairment or diminutions of the capacity for rational thought giving rise to a defect of reason."
While Francis appeared to understand the physical quality of his act his actions "his symptoms of psychosis combined with his pervasive social and communications deficits impaired his judgment and his capacity to interpret events, such that he was unable to consider or appreciate with any reason or composure as to the moral wrongfulness of his actions in hitting the complainant with the claw hammer."
[7]
Determination
In R v Kirkman [2019] NSWSC 1826 Justice Button set out, with admirable succinctness, the issues required to be determined in matters such as this. With unfeigned respect I have adopted His Honour's approach as a model for this judgment.
Here the undisputed evidence well establishes, on balance, that:
1. Manning Francis's acts caused grievous bodily harm to the complainant.
2. There is doubt that those actions were willed and deliberate movements of his muscles. I am not legally required to go further with regard to any proven intention: R v Issa, NSWSC, unreported 25/10/1995, per Sperling J; Ryan v R (1967) 121 CLR 205; Hawkins v R (1994) 179 CLR 500; and R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226. The objective facts specifically the blow to the head with a claw hammer, establishes that he specifically intended to inflict grievous bodily harm.
3. He has had a disease of the mind for many years, and that he was suffering from it very acutely on 5 September 2019.
4. His disease of the mind led to a defect of reason. This fact is established by the opinions of the two experts which I accept and his otherwise inexplicable attack on the complainant.
5. He had some appreciation on a superficial level that what he did was wrong and that he might go to prison.
6. He had no appreciation whatsoever of the moral wrongfulness of his actions. This final necessary leg of the mental illness defence is amply established.
[8]
Conclusion
In short: I am satisfied beyond reasonable doubt that Manning Francis voluntarily committed an act that wounded the complainant and he did so with the intent to cause her grievous bodily harm. I am also satisfied on the balance of probabilities that, at the time he did so, he was suffering from a disease of the mind that led to a defect of reason; that led in turn to him failing to appreciate the moral wrongfulness of his actions. For those reasons, I return a special verdict of not guilty by reason of mental illness.
[9]
Meaning of the verdict
I will explain the meaning and effect of my verdict. In doing so, I, again, adopt the summary given by Justice Button in R v Kirkman at [45] - [51]. A special verdict of not guilty by reason of mental illness verdict is not a complete acquittal.
First, whilst the defendant will not be held criminally responsible for his actions, as a result of his mental state on the evening of 5 September 2019 there is no doubt that his physical acts directly caused the injuries to the complainant.
Secondly, the fact that I have entered a verdict of not guilty of a special kind does not in any way diminish the physical harm that was caused and the continuing physical harms and any psychological stresses that continue.
Thirdly, while s 39(1) Mental Health (Forensic Provisions) Act 1990 allows for Francis's immediate release, that is not possible.
Fourthly, the effect of my verdict, and the orders that I make today is that the defendant will be committed to the long term care and control of the Mental Health Review Tribunal. He must be reviewed as soon as practicable: s40. Pursuant to s 43(a) of that Act, the Tribunal must not release him into the community unless and until it is satisfied that the defendant will not seriously endanger any person, including himself.
Fifthly, while the evidence now before me indicates that Manning Francis has responded to treatment and that some progress has been made, much more will be needed before he can resume life in the community. Absent a clear treatment plan and stable accommodation he still poses a danger to the community. Whether and when and under what conditions he is to be released are decisions that will and must be made by the Mental Health Review Tribunal.
[10]
Orders
I make the following orders:
1. Manning Francis is to continue to be detained in custody preferably at the Hamden Unit or Long Bay Hospital or at such place as may be determined from time to time by the Mental Health Review Tribunal.
2. The Registrar must notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me.
3. The Registrar must notify the Mental Health Review Tribunal and Justice Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by me, and provide those bodies with the following documentation:
1. A copy of these reasons for verdict and my orders;
2. A copy of the exhibits tendered at trial.
[11]
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Decision last updated: 23 October 2020