R v Franklin

Supreme Court of NSW|2020-08-25|Before: Button J, Health J

Introduction

Some time ago, Mr Cody Franklin (the accused) was found unfit to stand trial due to mental disturbance. For that reason, when he was arraigned on 10 August 2020 in the Supreme Court sitting at Orange, the proceedings were not a trial, but rather a special hearing. And because neither the Crown nor the accused had elected for the special hearing to be determined by a jury, the arraignment occurred solely before me.
The indictment contained three counts. The first averred that, on 5 June 2017 in the regional centre of Parkes, the accused had murdered Mr Arthur Phelan (the deceased).
The second averred that on the same date and at the same place, the accused had intentionally damaged by fire unit 3 of the building located at 2 Grenfell Street, in the same town.
The third averred that, on the same date and in the same place, the accused intentionally damaged by fire unit 1 of the same building.
Because the accused was incapable of entering a plea, three pleas of not guilty were entered by me on his behalf.
The special hearing continued until Tuesday, 25 August 2020, replicating a judge alone trial to the extent reasonably practicable. On that date, I retired to consider the verdicts that I shall deliver today.

Crown submissions

Rather than sketching the background or chronology more deeply, I believe that these reasons can be conveniently advanced by summarising the competing submissions of the parties, including of course by providing the details of the evidence upon which those submissions are based.
The Crown submitted that there is no direct evidence for the commission of any of the three counts. It was made clear that the Crown case for each is circumstantial. The circumstances relied upon were as follows.
First, the mental state of the accused was deteriorating in the days leading up to the day in question. Although he had seemed to be progressing reasonably well on his CTO, there were signs that he had been abusing cannabis. A general practitioner had expressed concern about his mental state some days before the day in question. On the previous afternoon, Sunday 4 June 2017, police had to be called to a BP service station in Parkes, where the accused had been causing a disruption. When Senior Constable Mann spoke to the accused there, the latter was behaving and speaking very oddly. As well as that, a neighbour from the first floor of the western end of the block noted on the evening of the same Sunday that some items had been left in the backyard of the block. They were consistent with items that had been left in that way in the past, at a time when the mental state of the accused had significantly deteriorated.
In short, the proposition was that the accused was very significantly mentally disturbed leading up to and on the day in question, and that disturbance was getting worse, not better.
Secondly, the accused lived directly below the deceased. The accused was undoubtedly at the block and at home on the morning in question. Furthermore, the accused was in the habit of visiting the deceased at his apartment. In other words, the two men were by no means estranged, and it was common and easy for the accused to attend the scene of the homicide. The Crown case was that those facts support the thesis that he could readily have done so that morning.
Thirdly, the diary of the deceased seized from his apartment shows that he had on many occasions lent small sums of money to the accused. And the diary strongly suggests that a sum of $20 was outstanding as at the date in question. The proposition is corroborated by the finding of the key card of the accused in the apartment of the deceased, because his habit was to leave that as security for his small debts. Furthermore, the practice of the deceased was not to lend more money to his debtors until previous loans had been repaid. In other words, if it be the case that the accused had sought a loan from the deceased on the day in question, in all likelihood it would have been refused. In his disturbed state, that could have led the accused to react very forcefully.
Fourthly, on the day in question many witnesses saw the accused behaving in a way that readily shows that he was profoundly disturbed, as follows.
Three workmen attending the western end of the block of flats saw the accused through the windows of his own apartment naked, grabbing his penis, talking incomprehensible gibberish, and smashing at least one of his windows.
Ms Ferrari Scott, neighbour from the floor above him, heard and saw him inside his apartment in a distressed and disturbed state, destroying items in his unit. So did Ms Debbie Lasserre, who was driving past at 11:15 AM that day.
After the death of the deceased and the ignition of the two fires, the accused appeared from the western foyer of the block and came to the front of the apartments. He was wearing nothing more than a pair of shorts in winter in Parkes, was talking to imaginary people, was swinging his arms and hands, and was holding a lighter.
A short time later, he was assessed by a paramedic, who had attended the scene of the fires, as requiring immediate hospitalisation. Thereafter, he was "scheduled" as a voluntary patient and detained at a psychiatric hospital here in Orange for almost a month. On arrival at that hospital, he was agitated and aggressive.
In short, the proposition of the Crown was that, at the relevant time, the accused was floridly mentally ill, irrational, agitated, and divorced from reality. He was also undoubtedly forcefully damaging or destroying parts of his own apartment. The point was made that, regrettably, a person in that mental state could well endanger others by lighting two separate fires and administering a severe beating to a frail old man, without any sensible motive for any of those actions.
Fifthly, nobody actually observed (in the sense of seeing) any other person in the vicinity of the apartments of the accused and the deceased during the relevant period of time. In other words, I should reflect on proposed alternative actors, bearing in mind that the accused was undoubtedly at the western end of the block, but the evidence about others is less clear.
Sixthly, the evidence of Senior Constable Nash combined with that of Senior Constable Tucker establishes, the Crown submitted, that the accused was alone in his apartment at the time when the fire at that location was taking hold. That is powerful evidence that it was indeed he who lit that fire, a proposition not resisted by defence counsel.
And that proposition was relied upon by the Crown to prove that the accused assaulted the deceased and lit the fire in his apartment upstairs as well. That was not based on tendency or coincidence reasoning - both of which were disavowed by the Crown prosecutor - but rather on the simple proposition that these three extreme acts were closely related in time and place, and can be thought of as one transaction engaged in by the one person.
Seventhly, when he emerged from his apartment and was amongst those gathered at the front of the block observing the fires, the accused was heard by Ms Kathleen Willis, a friend of one of the female friends of the deceased, to say words to the effect of "you got what you deserved, you fucking cunt". And as he was saying that, he was holding a cigarette lighter, flicking its ignition mechanism, and looking towards the burning part of the block. Even allowing for the mental disturbance of the accused, that was said by the Crown to show not only a basic knowledge that harm had come to the deceased, but also an emotional satisfaction with the outcome.
Eighthly, when seen at the front of the block, the accused had blood on his person, including on his bare feet. He also had lacerations to his knuckles, photographed a few days later, consistent with his fists having being used to apply significant force to something or someone. He also had a laceration between two toes on his right foot. Those observations were said to be important, in light of the post-mortem findings that quite significant force had been applied to the deceased, including possibly "stomping" leading to multiple fractured ribs.
Ninthly, the shorts that the accused was wearing had human blood on them. A swab taken from more than one location on that clothing found to have human blood contained a mixed profile that, making certain reasonable assumptions, almost certainly contained the DNA of the deceased.
The same may be said of the lighter that the accused possessed immediately after the fires and the fatal assault: it revealed a mixed profile of DNA, to which the accused and the deceased were almost certainly contributors.
In similar vein, the deceased was found face down on the floor of his lounge room. A sample was taken from the rear left shoulder of the jacket that he was wearing. A mixed DNA profile was obtained, which included a profile that was almost certainly that of the accused.
The combination of those scientific findings - the DNA results from the shorts worn immediately after the events in question, from the jacket that one can readily infer was worn by the deceased at the time of the fatal assault, and from the cigarette lighter possessed by the accused soon after the two fires had been ignited - was said to support powerfully the thesis that there had been very recent close physical contact between the two men during the assault, and that the accused had indeed lit the fire in his own apartment and that of the deceased, with the lighter that he possessed so shortly afterwards.
Tenthly, with regard to excluding alternative rational hypotheses consistent with innocence, the Crown relied upon the fact that over $1,700 cash was located on the person of the deceased, after the fire in his apartment was extinguished and his body was examined. It was said that that finding effectively rules out an alternative thesis of robbery and associated brutal assault committed by someone other than the accused, whether by a desperate drug addict, or an alcoholic, or anyone else. Rather, it was said, the fact that a very large sum of cash remained on the person of the deceased supports the proposition that the beating was not motivated by a desire for financial gain; rather, it was the motiveless, irrational act of a deeply disturbed individual.
Eleventh and finally, the dismemberment of the pet birds of the deceased, including the scattering of their body parts and the disassembly of their cage, was relied upon to submit that what occurred in the apartment of the deceased was not the work of a rational person seeking to rob the deceased of money. Nor was it the work of a person merely angered by a refusal to be provided with a loan. To the contrary: the Crown submission was that it was the work of an undoubtedly mentally disturbed person - the accused.
In short, the overarching Crown submission was that there was a single transaction of extreme acts, all committed in the one time and place, and all of them redolent of mental disturbance. Combined with the scientific evidence, the most important of which is the DNA results, it was submitted that I would be satisfied beyond reasonable doubt of the commission of all three offences, and that, as part of that satisfaction, I would affirmatively rule out all alternative hypotheses to the same standard.
Finally, as explained a moment ago, the ultimate outcomes for which the Crown contended were three verdicts of not guilty on the ground of mental illness.

Defence submissions

The following is a summary of the written and oral submissions made by counsel on behalf of the accused.
The overarching proposition was that there had been a failure by the Crown to prove, on the evidence, the physical elements of the counts beyond reasonable doubt.
It was accepted that the deceased had indeed been assaulted, and that the extent of his injuries could not be ascribed to a fall or other accident. Having said that, in light of his frailty, including emaciation and osteoporosis, the point was made that one should not assume that the assault must have been a particularly savage or severe one.
As for the reliance by the Crown on injuries to the hands of the accused to support the proposition that he was the assailant, the point was made that two windows were broken by the accused in his own apartment, and at the least one of them could readily provide an explanation for the findings as to his hands and knuckles.
It was accepted that DNA of the accused was found on the clothing worn by the deceased. But the point was made that, if the accused was indeed the assailant, who repeatedly attacked the deceased barehanded, one might have expected much more of his DNA to be deposited upon the body of the deceased. And yet, despite an intensive examination, that was the only location at which the DNA of the accused was located.
As for any inferences that one might draw from the finding of the DNA of the accused on the jacket of the deceased, it was said that that was not inconsistent with an alternative hypothesis of the accused actually having tried to assist the deceased, after perhaps having interrupted an assault upon him by another person.
As for the other findings as to the DNA of the deceased on the shorts worn by the accused that morning, it was said that the two men had been on good terms, the accused often visited the deceased, and it was quite possible that the DNA of the latter had previously and innocently got onto the clothing of the accused as a result.
It was said that the presence of the keycard of the accused in the upstairs apartment did not advance the Crown case, because it was accepted that the accused was a frequent visitor.
As for the fact that cash was found still on the person of the deceased, it was said that there could well have been other sums in his apartment that had indeed been taken by a possible assailant and robber. Furthermore, the alternative assailant may have been rushed, as a result of having been interrupted by the accused, with the result that there was simply no time to search the body or clothing of the deceased thoroughly.
It was said that no weight should be placed upon what the accused has said at various times, bearing in mind his chronic and severe mental illness. An agreed fact that he is a most unreliable historian was relied upon. And it was said that, even if it could be established that the accused said something seemingly inculpatory to Ms Willis (a proposition that was resisted on the evidence), it should be given no weight, because one can have no idea about the delusional event to which the accused, in his grossly disturbed state, might actually have been referring.
The seeming irrationality of the dismemberment of the birds was accepted by defence counsel. But he made the point that one should not jump to the conclusion that merely because the accused may have done that must therefore mean that he must have been the assailant of the deceased.
The point was made that I would make a global assessment of the police investigation as having been unsatisfactory in a number of ways, most of them focused upon the inadequacy of the investigation of possible alternative assailants. That led back to the central proposition: that I must reflect upon whether all of the resultant unanswered questions might stand in the way of proof beyond reasonable doubt.
The order of events was not disputed, in the sense of the deceased first having passed away, then the fire in his apartment taking hold, then the fire being lit in the apartment of the accused downstairs. But an important point about chronology was the submission that one can infer from the evidence of a neighbour, Ms Kelly, combined with the CCTV timing, that Mr Jason Mayer, at the time an impoverished drug addict, departed the block of flats hurriedly at around the time when the smoke alarms started sounding.
The point was also made that the CCTV from multiple locations around the site shows a large number of people "coming and going" in the vicinity of the block that morning. Many people must have known that the deceased possessed cash money. And some people depicted on the CCTV are unable to be accounted for, in the sense that, having appeared in one clip, they do not reappear in another as one would expect them to do.
A detailed analysis was undertaken of the position of Mr Martin Phelan, the son of the deceased. It was said that he was estranged from his father over an unpaid debt that Mr Martin Phelan owed; that the latter was seeking money that morning; that he was indeed at the block at the time; that one could infer that he had lied about his movements; and that he left hurriedly at about the time when the crucial events occurred. It was also submitted that he behaved very strangely when he returned to the scene, having been told of the fire. It was further said that the DNA profile of that individual was not compared with findings from the scene, with the result that nothing can be known as to whether his DNA may have been in certain locations or not. Having made all of those points, defence counsel accepted that there was no evidence that directly put Mr Martin Phelan in the apartment of either the accused or of the deceased that morning.
Even greater emphasis was placed upon the assertedly murky role of Mr Mayer. It was said that his many versions of events contained inconsistencies and flat out lies. It was said that Mr Mayer possessed a motive to assault the deceased, and that he undoubtedly had the opportunity to do so. It was also said that the accused could well have been heard to have been arguing with a real person that morning, Mr Mayer. It was said that scientific evidence places him in the apartment of the accused. And it was said that the voice identification evidence of Mr Carl Bradbury places him in the apartment of the deceased. It was also said that all of that must be assessed in the context of an unsatisfactory police investigation. Particular emphasis was placed upon four different versions of his movements and locations given by Mr Mayer to police over the years since that day, quite apart from his wholly unsatisfactory evidence in the witness box.
In short, I was asked by defence counsel to reflect upon a circumstantial Crown case, with particular focus upon whether I am satisfied beyond reasonable doubt that the accused was the assailant in the homicide. As a crucial part of that process, I was asked to reflect upon particular alternative hypotheses that defence counsel submitted were perfectly rational: that some unknown person, perhaps an impoverished drug or alcohol addict, may reasonably have bashed the deceased; that his son, estranged from his father at the time and in his debt, may reasonably have done so; and that the role of Mr Mayer as the true assailant, perhaps taking advantage of the mental disturbance of the accused, simply cannot be excluded beyond reasonable doubt.

Legal matters

In general accordance with the written and oral submissions about legal matters helpfully received from both parties, I have approached my task as the tribunal of fact in accordance with the following principles of law.
A special hearing is to be conducted, to the extent reasonably practicable, in the same way as a criminal trial. For present purposes, my reasons for verdict must be as comprehensive and cogent as if this were a criminal trial by judge alone.
The burden of proof with regard to the necessary elements of the three counts rests upon the Crown alone, and never shifts to the accused.
Each of the necessary elements of each of the three counts must be proven to my satisfaction beyond reasonable doubt.
Because the defence of mental illness has been raised, at the "first stage" it is not incumbent upon the Crown to prove mental elements, whether specific or basic, nor the voluntariness of any act of the accused: Hawkins v The Queen (1994) 179 CLR 500 and R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226. My focus must be upon the necessary physical elements of each count.
The physical elements of murder are that: the accused; did an act; that caused (in the sense of substantially contributing to) the death of the deceased.
The physical elements of the two counts of destroying or damaging property by fire are that: the accused started a fire; that damaged or destroyed property; that belonged to another person.
If the physical elements of any count are established, I must turn to the defence of mental illness. The burden of proof with regard to that defence rests upon the accused, and it must be proven only on the balance of probabilities. Having said that, the defence is undisputed, indeed endorsed, by the Crown.
The elements of that defence are that: at the time of the commission of the physical elements of a count; the accused suffered from a disease of the mind; that led to a defect of reason; that caused the accused either not to appreciate the nature and quality of his act; or not to appreciate that it was wrong, in a moral as opposed to procedural or legal sense: R v M'Naghten (1843) 8 ER 718.
The failure of the accused to give evidence, and indeed to call evidence about anything other than the defence, is not to be held against him in the slightest.
There are three counts on the indictment, and I must consider them separately. I am not to engage in tendency or coincidence reasoning. I can, however, reflect upon whether the three acts alleged against the accused may form part of the one transaction.
The Crown case on each count is circumstantial. That means that I should: reflect globally and not individually or severally upon all asserted facts relied upon by the Crown; consider which of them I find to be established; consider whether their combined force satisfies me that the accused committed the physical elements of one or more counts; reflect upon whether they establish that proposition beyond reasonable doubt; and as an inevitable part of the latter exercise, reflect upon whether all alternative rational hypotheses can be excluded to the criminal standard.
As part of that reflection, I must think about evidence that has, for whatever reason, not being placed before me, and whether the absence of any such evidence means that the Crown has not proven its case.
The evidence in the trial includes what I saw or otherwise perceived on the view conducted on 12 August 2020, and I can draw inferences from it, in combination with all of the other evidence, as I see fit.
The assessment of what the witnesses had to say, how they said it, and what they did not say, is a matter for me. I am entitled to accept or reject the entirety of what a witness has to say. But it is also open to me to accept some parts of what a witness has said and to reject other parts of what he or she has said. Speaking generally about that process, I should reflect intelligently upon the evidence of witnesses in the context of the entirety of the other accepted evidence in the trial, and not in a piecemeal or "bit by bit" fashion.
In similar vein, the assessment of the expert opinion evidence is a matter for me. I should reflect on their qualifications, knowledge and experience of such witnesses; the opinions that they have expressed; whether those opinions are grounded in their specialised advantages; whether their opinions are founded upon the facts as I find them to be; and whether the opinions appear rational, cogent, and make sense to me. (I interpolate that the parties were agreed that neither the evidence of the forensic psychiatrists about the defence of mental illness, nor the evidence of any other expert witness, including the DNA evidence, was in fact in dispute.)
The Crown made it clear that no statement of the accused was relied upon as allegedly evidencing consciousness of guilt.
On the other hand, if I came to the view that Mr Mayer or any other person focused upon by defence counsel had told lies in the witness box, or in interviews, or indeed elsewhere, that itself could be a circumstantial fact that could play a role in raising a reasonable doubt about the guilt of the accused, by way of supporting the asserted alternative rational hypothesis of inculpation of the liar. On reflection, because there is of course no onus upon the accused in that regard, I do not adopt the same caution that I would adopt if I were being asked by the Crown to infer a consciousness of guilt on the part of an accused person.
I should approach the evidence by way of tendered statements of Mr Shane Williams and the late Mr Jeffrey Crouch with caution. That is because they were unavailable witnesses, and their statements were tendered for that reason only, with the result that their evidence was hearsay. The outcome was that their versions of events could not be explored or challenged in cross-examination, they could not be confronted with other pieces of evidence, and I could make no assessment of the demeanour of those two men. I have reflected upon the proposition that those and other matters may cause their evidence to be unreliable. And I have also reflected upon the need for caution in deciding whether to accept their evidence, and the weight that should be given to it.
Finally, I approach the evidence of Mr Martin Phelan and Mr Mayer in the same way: with caution. That is because I came to the view, as the judge of the law, that they were persons "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding"; by that I mean, the events captured by the three counts in the indictment.
I have, as the tribunal of fact, accordingly reflected whether their evidence may be unreliable; whether they may be persons who wish to avoid the consequences of having committed a homicide; whether their evidence may be unreliable because they wish to hide their own criminality; whether they know something of the subject matter of the counts, and wish to use that knowledge falsely to inculpate the accused; whether they may have an "axe to grind" against the accused; or whether their evidence may be unreliable for any other discreditable reason. I have reflected upon the need for caution in deciding whether to accept their evidence, and what weight, if any I should give to it.
That concludes my summary of the legal principles that I have applied. I turn now to the nub of these reasons for verdict.

Consideration

As an introductory matter, I respond briefly to the submission of defence counsel that the investigation of this matter by the police has been inadequate.
In my opinion, it does not fall to me to express a concluded view about that. My task is simply to assess whether the Crown has proven what it must prove, to the criminal standard, on all of the evidence placed before me. I understand the submission that matters not investigated may lead to a paucity of evidence, which may in turn lead to a reasonable doubt. But I respectfully do not propose to analyse further any putative evidence that was not placed before me. To repeat my straightforward approach: I proceed simply to analyse the evidence that I do have, and to explain whether, based upon that evidence, the Crown succeeds in its task or not.
The starting point of my analysis of the evidence is the acceptance that a number of very extreme things happened in a limited geographical and chronological space: in the space of at most a little over an hour, in two apartments, one above the other, two separate fires were lit, the life of a fellow human being was violently brought to an end, and some pet birds were gruesomely ripped apart.
As I have explained, I do not reason, either globally or sequentially, that establishment of one act against the accused shows that he had a tendency to commit the others, nor that it is a coincidence if the accused committed one act but someone else committed one or more of the others. But I do reason, simply, that one is entitled to think of these very unusual events on the ground and first floors of the western end of the particular block of flats in question as potentially part of a single transaction.
The next step is to express my satisfaction to the criminal standard that the accused lit the fire in his own apartment. As I have said, that proposition was not resisted with any vigour by defence counsel. And it is supported by a deal of evidence, in my opinion, the most compelling of which is that the accused was seen alone in his apartment by more than one witness before the fire there took hold. Nor is there any evidence that contradicts the proposition.
A further step in my thinking is based upon the dismemberment of the birds. In my opinion, that is not the work of a robber, or even a person very angry with, or resentful of, the deceased. It goes well beyond that, not least because of the time that it would have taken. Nor do I believe that it is the work of a drug addict desperate for money. Whilst it is true that Australian society regrettably contains people who gain pleasure out of inflicting pain and death on harmless animals, I think that seen in context that act is entirely consistent with a disturbed mind. (I shall deal later with the submission of defence counsel that that act could have been done by someone else to implicate cunningly the mentally disturbed accused.) I believe that it was the accused who was in the apartment of the deceased, dismembered the birds, and furthermore disassembled their cage and, bizarrely, spread birdseed over the body of the deceased.
My approach to the dismemberment of the birds means that I think there is strong evidence that the accused was in the apartment of the deceased that morning after 10:23 AM, that he did something very forceful and irrational and repellent there, and thereafter he went on to light a fire in his own apartment.
As for the lighting of the fire in the apartment of the deceased, it is not disputed that the accused possessed a cigarette lighter soon after that fire took hold, that his DNA was almost certainly located on a jacket in the apartment of the deceased, that he was in the habit of visiting that apartment, and that, as I have said, he subsequently lit a fire in his own flat.
Furthermore, the seat of the fire in the apartment of the deceased was not his clothes, nor on or near his body, nor even in the lounge room where his body was found. Rather, it was in the bedroom. That fact speaks against the motivation for the lighting of the fire in the apartment of the deceased as being a rational effort to hide what had been separately done to the deceased, by burning his body. In fact, the lighting of a fire in the bedroom of the deceased drew attention to the very apartment in which the body was located in a separate room. All of that, in my opinion, bespeaks irrationality, not considered criminality.
In short, I think there is a strong case that the accused also lit the fire in the apartment of the deceased.
Before going further, I should resolve one discrete disputed aspect of the evidence. Defence counsel queried whether one could accept to any degree that the accused said anything intelligible when outside the front of the flats once the fires were advanced. He submitted that Ms Willis, who claimed to have heard an inculpatory statement made by him, was confused as to whether it was made in answer to a question from herself, or her friend Ms Dixon. He also submitted that her police statement to that effect was not made for some days. Nor did Ms Dixon - who was in the company of the witness at all times - hear the alleged statement, nor did anybody else. In short, he submitted that I should simply put that evidence to one side.
All of those criticisms have force, in my respectful opinion. Even so, Ms Willis was firm that she had heard the accused speak harshly about the deceased deserving his fate. An inability to recall the precise words is natural. By that stage, there was surely a hubbub at the front of the block, and people were focused upon the building more than the accused. That would surely apply in particular to Ms Dixon, who was after all a former partner of the deceased. And in my experience some people are better than others in discerning speech that is difficult to understand.
In short, I find that the accused did say words to the effect that Ms Willis recalled. And I respectfully think that the submission of the Crown is correct: those words cannot be "hived off" from the fact that, when the accused said them, he was flicking a cigarette lighter and looking towards the western end of the block where the fires were advancing.
Having said that, I also think there is force in the proposition of defence counsel that the significance of the evidence must be approached very cautiously, for the simple reason that the deluded accused may have been referring to something fantastical.
In summary then, I think that those words were spoken by the accused, but I give them only limited weight in my analysis.
Returning to my overarching analysis, it is to be recalled that the deceased died as a result of significant violence before any fire was producing carbon dioxide, then the fire in his apartment took hold, and finally the fire in the apartment of the accused was lit. Thinking of these extraordinary events as powerfully suggestive of a transaction or series of connected events; reflecting on the fact that an elderly man was beaten to death quite savagely, and yet a significant sum of cash on his person was not taken; thinking about the blood on the person and clothes of the accused shortly afterwards; taking into account the DNA findings as a whole (the clothes of the deceased, the clothes of the accused, and the mixed profile on the cigarette lighter), and the injuries observed to the accused; giving some limited weight to what Ms Willis heard the accused say; and combining all of that with his undoubted mental illness at the time, I come to the following position about the homicide. I must say that, as a starting point, I think there is a strong case against the accused in that regard as well.
But none of the foregoing analysis "factors in" the alternative hypotheses relied upon by defence counsel, to which I now turn.

Other, unknown assailants?

As I have said, I was asked to reflect upon three of them. The first was that many people associated with that block of flats (whether living in them, or in the block of flats behind them, or elsewhere) would have known that the deceased was a frail old man, who had access to sums of cash. And many of those people would have been impecunious, indeed desperate for money because of various kinds of addictions.
As for the latter, it was further submitted that it is clear that the block was a place of drug dealing, as evidenced by the quick and furtive comings and goings shown by CCTV footage, and indeed by an agreed fact about police intelligence. The point was separately made that the footage shows a great number of people around and about the flats at that time who have not been "accounted for", and who could have had something to do with the events in question; in particular, the fatal assault.
Dealing with that alternative hypothesis globally, I accept that many people who lived in and visited that block were short of money. For some of them, that was exacerbated by addiction to substances that are notoriously expensive on the black market and that destroy one's financial position over time. I also accept that it was well known that the deceased possessed cash in his apartment. I also accept that visits to the apartment block by vehicle whereby persons ducked in and out of the building in the space of a matter of minutes are completely consistent with the purchase of prohibited drugs. Finally, I accept that there are some people who cannot be "tracked" effectively by way of the available CCTV.
Even so, that line of thinking does not, in my respectful opinion, reasonably detract from the strength of the Crown case against the accused with regard to any or all counts. By that I mean, to give an example, it is possible that the unidentified person seen riding a pushbike up the laneway to the east of the McDonald's drive-through window, and not subsequently recorded, could have had something to do with these events. It is possible that the bicycle rider was, in truth the assailant. But I am called upon to think about proof beyond reasonable doubt, not any doubt. The evidence against the accused is, in my opinion, specific and strong. The generic topic of unnamed people who might have been around the apartment block does not detract from the specificity of that evidence. Bearing in mind the strength and specificity of the evidence inculpating the accused as the assailant, I do not consider that reflection upon an unnamed and unknown assailant gives rise to an alternative rational hypothesis, or an alternative reasonable possibility.
Finally on this topic, it is to be recalled that the block was not located in a deserted or isolated location. It is in a semi-commercial setting in a reasonably busy part of a regional centre. In the near vicinity were another block of flats, a railway station, a hotel, a licensed club, a fast food restaurant with a drive-through, and an electrical store. In other words, the "unaccounted for" general persons on the CCTV footage are hardly unexpected. They do not raise any reasonable doubt in my mind that one of those unnamed persons could have been the assailant.

Mr Martin Phelan?

The second alternative hypothesis is that the deceased may have been fatally assaulted by his own son, Mr Martin Phelan. I have sketched the bases for that proposition already. In my opinion, there are certainly some odd aspects of the evidence of Mr Martin Phelan. His description of his movements has not been entirely consistent with the CCTV evidence. Whether or not he did indeed meet with Mr Caldwell first thing that morning remains unresolvable, though I tend to the view that he did. Furthermore, I find it very odd indeed that, on his evidence, having been telephoned and told that there was a fire in the part of the block near where his incapacitated father was living, he travelled on foot from west to east past the fire, in order to meet up with his friend Mr Caldwell on Welcome Street at the other end of the block. It is also true, I accept, that he owed his father money, that Mr Martin Phelan was short of that commodity, that he and his father had not been getting on well at all in the preceding weeks, and that his evidence that he did not see Mr Caldwell earlier that morning does not fit with the evidence of the latter.
Even so, as I have said, there is no evidence whatsoever that directly places Mr Martin Phelan in the apartment of the accused, in the apartment of the deceased, or in the entranceway and the stairway in between, at any relevant time that morning. And for what it is worth, the demeanour in the witness box of Mr Martin Phelan seemed to me to be that of a person who has had a difficult life, perhaps one damaged by dependencies. But he did not impress me as someone who had bashed his frail and emaciated father to death over a $200 debt, failed for some reason to divest him of a much greater sum, and thereafter perhaps dismembered the pet birds of his father in order to implicate the accused. Again for what it is worth, his disgruntlement at being asked in the witness box about whether he had killed his own father seemed to me to be genuine. And I say that not forgetting the caution with which I have decided I should approach what he has to say.
As I have said, there are some strange, perhaps inexplicable aspects of the behaviour of Mr Martin Phelan that morning. It is possible, I think, that Mr Martin Phelan and Mr Caldwell were engaged in some sort of unlawful enterprise, about which they have not been entirely truthful.
Nevertheless, in the complete absence of any evidence - scientific, observational, voice identification, direct or indirect admission, or safely inferential - placing Mr Martin Phelan in the apartment of the accused, the deceased, or anywhere in between - this particular thesis of defence counsel about him, in light of the strength of the specific evidence against the accused, does not give rise to a reasonable doubt in my mind as to the possibility of Mr Martin Phelan being the assailant.

Mr Mayer?

I turn now to discuss the final alternative hypothesis; namely, that Mr Mayer could well have been the person who administered the fatal beating to the deceased.
In my opinion, speaking generally, the oral evidence and the portions of the previous versions given by Mr Mayer placed before me are a farrago of lies, half-truths, confabulations, inconsistencies, and unpersuasive reactions to various pieces of evidence with which he has been confronted.
In my further opinion, his exculpatory versions of events and denials are worthless. Nor did his demeanour in the witness box, including his complete inability or unwillingness to give a straight or definite answer to a direct question, give rise to any contrary impression. The evidence must be analysed not only on the basis that his statements of innocence are to be disregarded, but also on the basis that some of his statements are lies that could suggest that he has something significant to hide. And there is no need for me to approach his evidence with caution, because I reject it in any event.
Speaking more specifically, I am satisfied that Mr Mayer was indeed inside the apartment of the accused at some stage on the morning in question. That is established by the presence there of a tissue with his blood on it; his admission that he did knock on the door of the apartment of the accused that morning; and the hearing of two voices by more than one witness. As for the latter, I have reflected on the possibility that the accused was in fact psychotically merely "arguing with himself", but even so have ultimately come to consider that Mr Mayer was indeed in unit 1.
In fact, I go further: I consider that Mr Mayer was inside unit 3 that morning, the unit of the deceased. That finding is based upon the following.
First, Mr Carl Bradbury heard two voices from the apartment of the deceased. He was sure that one was that of the accused, and 80% sure that the other was Mr Mayer. One should be very cautious about identification evidence, including voice identification evidence. And it is also true that Mr Bradbury was jumbled with regard to times, that he is a person who I believe has been damaged by abuse of drugs, and who may have some kind of hidden ill- feeling against Mr Mayer. Even so, I believe that his adamant evidence in that regard is important, not least because Mr Mayer accepted that Mr Bradbury subsequently confronted him about what he, Mr Bradbury, had heard.
Secondly, Mr Leroy Thompson gave evidence in the Crown case of Mr Mayer having admitted to him that he was indeed in the apartment of the deceased. It is true that the evidence of that conversation was uncorroborated; that it took place almost a month after the day in question; that Mr Thompson delayed for a number of days before giving a statement to police; that he refused to engage in a further conversation with Mr Mayer while wearing a listening device; and that some of the reported details do not fit specifically with the opinion of a fire expert. But there was no application by the Crown to cross-examine Mr Thompson, and he struck me as a person who was telling the truth as best he could. It is also the case that Mr Mayer was unable to give any sort of sensible explanation in the witness box for what Mr Thompson had to say; I readily reject the suggestion of Mr Mayer that there was some sort of "crossed wire" between the two of them about such an important matter.
Thirdly, what Mr Thompson swore Mr Mayer had said is supported by what Detective Howard and Detective Farmer say that Mr Mayer told them during a car trip, many months later: that he had indeed been in the apartment of the deceased. And that conversation was immediately put to Mr Mayer by the police officers in a subsequent recorded interview, even though Mr Mayer did not adopt it in terms.
Furthermore, Mr Mayer has told a number of lies about his movements on that morning, and as I have said, I readily infer that he had and has something to hide.
In short, my analysis proceeds on the basis that Mr Mayer was indeed in the apartment of the deceased. And it also proceeds on the bases that Mr Mayer has lied about not being in the company of the accused that day; that he has lied about being in the continuous company of Mr Bradbury at the relevant times; that he has lied at one stage about not talking to Mr Thompson at all about the matter; that he has lied about not being in the vicinity of the block when the fires started; and that he has lied because he feels that he has something to hide.
My coming to those positions has certainly raised a question that has required deep reflection: even allowing for the occluded presence of Mr Mayer in the apartment of the deceased, and his wholly unsatisfactory evidence, has the Crown nevertheless proven beyond reasonable doubt that the accused was the assailant?
My answer to that is as follows.
Four extreme events occurred in a short span of space and time that morning: the fatal bashing of the deceased, the dismemberment of his birds, the lighting of a fire in his apartment, and the lighting of a fire in the apartment of the accused. As I have indicated, I am comfortably satisfied beyond reasonable doubt that the accused lit the fire in his own apartment. I am also comfortably satisfied beyond reasonable doubt that the dismemberment of the birds was the act of a mentally disturbed person. To repeat: it was not the act of a drug addict who was trying to rob the deceased because he was desperate for cash. And I put to one side, with respect, as speculation, the proposition that some mentally well person deliberately undertook that act in order to "frame" the accused with it. There is no evidence for the proposition, and I think that it ascribes to others levels of sophistication and forethought that they simply did not possess.
As I have also said, I am also comfortably satisfied to the criminal standard that the accused lit the fire in the apartment of the deceased. To repeat yet again: that is not based on some finding that the accused had a tendency to light fires, nor on a finding that it would be a very large coincidence if two separate individuals lit separate fires in the same part of the same block of flats at the same time on the same morning. Rather, it is to reflect on the events that morning as powerfully suggestive of one single transaction. And it is also to reflect on the irrationality of lighting a fire in the bedroom of the deceased when the body was located in the lounge room, as it happened ultimately untouched by the fire. And it is to reflect on a further irrationality, the fact that a fire in unit 3 would surely promptly draw attention to the homicide of the deceased.
In other words, the lighting of the fire in the bedroom of the apartment of the deceased was, in my opinion, indeed the act of a mentally disturbed person, and that person was the accused.
That leaves the question of whether it is reasonably possible that the accused did those three things, but Mr Mayer did the fourth - the fatal bashing of the deceased. To express that question in a more straightforward and correct way: in giving full weight to the adverse position of Mr Mayer - his acts and words - am I satisfied beyond reasonable doubt of the physical elements of the murder count against the accused?
Because of my findings about the presence of Mr Mayer in the apartment of the deceased at the relevant time, his many lies, and the motivation for those lies being a desire to hide something, I have obviously had to grapple earnestly, intellectually and emotionally, with that question. Ultimately, the following factors are important to my thinking. In the following analysis, I have borne firmly in mind that there is no onus whatsoever upon the accused to prove to any standard that Mr Mayer was indeed the assailant. For that reason, of course it is not a matter of me as the tribunal of fact "picking and choosing" between the two of them.
First, the investigating police have long had the DNA profile of Mr Mayer, as shown by the positive result with regard to the blood on the tissue seized from the apartment of the accused. No DNA emanating from Mr Mayer has ever been located upon the clothes or body of the deceased.
In contrast, DNA extremely likely to be that of the accused has been located on the jacket in which the body of the deceased was found. Significantly, it was located on the rear back shoulder of that jacket. It is to be recalled that the deceased was found face down on the lounge room floor. It is also to be recalled that he was a very ill man, who was more or less incapable of getting up from the couch upon which he lived. The fact that his life was sedentary means that innocent touching by the accused to the back of the deceased on previous social occasions would, in my opinion, have been very unlikely. Furthermore, the finding of the DNA of the accused on that location of the jacket worn by the deceased, when he was found face down on the floor, is consistent with the accused having bodily thrust him into that position at some stage of the beating, perhaps at its conclusion, and his DNA being impressed upon the cloth of the jacket by a forceful grabbing as part of that process.
Secondly, there is no evidence of Mr Mayer having any blood on his person at any stage that morning. And it is to be recalled that he was seen by a number of people, and also appears on CCTV footage from Parkes Hospital. Nor is there any evidence of the DNA of the deceased ever having been found on any item associated with Mr Mayer.
In contrast, human blood was found on the shorts worn by the accused that morning. It contained a mixed DNA profile that, it is extremely likely, included the DNA of the deceased. Whilst it is theoretically possible that that DNA came from some other biological substance of the deceased (skin cells, saliva, semen, et cetera), I think that a very safe inference is that the blood at the least partly emanated from the deceased. That is very significant, bearing in mind the brutality and recentness of the fatal attack upon the deceased.
Furthermore, the accused had blood on him more generally, including, according to Senior Constable Mann, on his hands and feet. Some of that may have come from him "trashing" his own apartment. Even so, the finding is is also important in light of the fact that there is no doubt that the deceased had been brutally bashed a short time before.
Thirdly, there is no evidence of injury to any part of the body of Mr Mayer (including his hands) observed by any person, including investigating police when they conducted an electronically recorded interview with him two days later on 7 June 2017.
In contrast, the accused was shown to have some injuries when he was photographed on 8 June 2017 at Bloomfield Hospital. They included lacerations to his knuckles, and, significantly, a cut to one of his toes. It is to be recalled that he was barefoot when seen outside the block on the morning in question. It is also to be recalled that the forensic pathologists speak of the possibility of kicking or stomping of the deceased. It is true that the accused could have injured himself in his own apartment, including when smashing its windows. But the finding of injuries to the accused, consistent with the administration of violence with fists and feet, is, yet again, significant.
Fourthly, reflecting upon the thesis that Mr Mayer could reasonably possibly have been the assailant, I accept that on the day in question he was leading the chaotic, impoverished, and desperate life of a drug addict. I also accept that he must have known that the deceased was in the habit of lending cash to others, and that he would readily have inferred that there was some cash in unit 3. But the severity of the fatal beating suggests to me something apart from a desire to divest a frail old man of his cash. As I have said, in my opinion it has a flavour of deep agitation, even irrationality. Indeed, a beating would have been unnecessary if the putative robber had simply disguised himself perhaps with a balaclava, and readily overpowered the deceased.
Not only that, the simple fact is that the deceased did possess a large sum of cash that day, and it was on his person. If it were demanded of him by Mr Mayer, one might think he would have handed it over, or at the least it could have been taken from the deceased after a struggle that lasted nothing more than a moment. And in any event, once he was unconscious or dead, it would have taken but a minute to search his body and find that cash. And yet, the simple fact is that a very significant sum of cash was not snatched away by the putative attacker.
In my opinion, that undisputed fact argues powerfully against the motive for the beating being a robbery by a drug addict desperate for funds, whether that be Mr Mayer or anyone else living in or visiting the block that morning.
Fifthly and less importantly to my analysis, as I have said, I broadly accept the evidence of Mr Thompson as to what Mr Mayer said had happened in the presence of the latter in the apartment of the deceased. And I also accept that there may be "wheels within wheels" to be found within what Mr Mayer had to say. Even so, it is not irrelevant that what Mr Mayer said, seemingly unguardedly, remained an inculpation of the accused as the assailant, a history of the accused having attacked the deceased as a result of his mental illness, and a description of the act of violence as part of a continuous transaction including the lighting of the two fires.
Sixthly, I have already expressed my satisfaction beyond reasonable doubt that the accused did three extreme things that morning. The thesis under consideration now is that it has not been proven that he did a fourth: bringing the life of a fellow human being to an end. The thesis is that it is reasonably possible that another person may have done so. In other words, in light of my earlier findings, the thesis must be that two separate individuals, at the same place and time, could reasonably have separately done two sets of very extreme things: arson and profound animal cruelty on the one hand, and homicide on the other. That thesis is indeed possible, and of course the accused bears no responsibility whatsoever for proving it. But I must say that I think that it would be an extremely unlikely turn of events, there is a much simpler explanation, and it is not easy to assess it as reasonably possible.
Seventhly and finally, to summarise this crucial portion of my analysis: I reject the evidence of Mr Mayer as worthless as to what he has said and how he has said it. I find that he was present in the apartment of the deceased at the relevant time. I find that he has lied about that, and about other significant matters. I find that the motivation for those lies was fear of inculpation in something. Patently, the combined weight of those findings has a very real capacity to call into question satisfaction to the criminal standard that the accused committed the physical elements of homicide. The question is whether it ultimately does so in light of all the evidence I have set out.
Giving full weight to those findings of mine, and thinking about them with the criminal onus and standard of proof firmly in mind, still and all I believe that one cannot rationally "escape" from the specificity and combined force of the evidence in the Crown case identifying the accused personally as the assailant. That is by no means to depreciate the alternative rational hypothesis based upon Mr Mayer. Nor is it to state affirmatively that Mr Mayer is innocent of all wrongdoing that morning, including any wrongdoing based, perhaps, on some form of accessorial liability. It is simply to say that, in my opinion, the hypothesis is ultimately "swamped" by the irresistible combined force of the evidence inculpating the accused himself.
In short, after a period of difficult reflection, I have come to consider that the combination of established facts demonstrates that the accused committed the physical elements of all three counts; that that combination goes further and does so beyond reasonable doubt; and that all other rational hypotheses consistent with absence of proof of guilt of any count are ultimately disproven. That means that I have come to the point of being satisfied beyond reasonable doubt that the accused committed the physical elements of all three counts on the indictment.

Special verdict

That leads one immediately to the position agreed between the parties; namely, that, at the time he committed those three acts, the accused was not criminally liable on the ground of mental illness. That is the joint position of the parties, it is the unanimous position of two highly qualified and experienced forensic psychiatrists, and in my respectful opinion it is the only position open on the evidence.
To expand upon that only very briefly, there is no doubt that, at the time he did these things, the accused was suffering from a chronic and severe mental illness in the form of a schizoaffective disorder. His utterances and actions on that day show that, at that time, he was floridly psychotic. By that I mean, he was suffering from delusions, hallucinations, thought disorder, and was very largely (though not for all purposes) divorced from reality. Only a few examples are necessary: amongst other things, he believed that his name was Lord Regal, he was speaking to people who were not there, he was often speaking gibberish that few could understand, he forcefully damaged his apartment whilst naked, and, of course, he lit two fires and killed a fellow human being for no rational purpose.
Since that time, he has spoken of his firm belief in his ability to communicate telepathically, of his age being measured in the thousands of years, and of having been married to Queen Cleopatra of ancient Egypt and, separately, a famous pop singer who lives in United States. And one can readily infer that that state of mind persists after he has been treated intensively by psychiatrists in continuous medical detention or custody, and that he is medicated as effectively as possible. Regrettably, the prognosis for the future is poor.
In my opinion, it is amply established that, at the time he committed these acts, the accused was suffering from a disease of the mind in the form of a schizoaffective disorder. It led to a defect of reason, in that he was unable to distinguish between reality and unreality. Nor was he able to think sensibly and with any degree of calmness. Although in some superficial sense he may have appreciated the nature and quality of his actions (lighting two fires, severely bashing an old man) I am satisfied that he had no appreciation of the wrongfulness of his actions. Indeed, it is noteworthy that, when the fires were still alight, and the body of the deceased was yet to be found, the accused appeared in a public place, injured, with blood on himself, and in open possession of a cigarette lighter.
Finally, I have not forgotten the potential role of intoxication with prohibited drugs, and the fact that that state of mind is not to be thought of as a disease. But I share the opinion of the two forensic psychiatrists: even assuming that the accused may have been affected by prohibited drugs at the time, that must surely be thought of as an exacerbation of the underlying disease, and not in any sense adversely determinative of the question of the special verdict.
In summary, my finding with regard to the three counts is that it has been proven beyond reasonable doubt that the accused committed the physical elements of each of them. However, at the time, he was suffering from a mental illness that meant that he was not criminally liable for what he has done. I shall explain the meaning and consequences of that second finding at a later stage of the proceedings today.
For the moment, I simply return, on each of the three counts, the verdict: not guilty on the ground of mental illness. [Adjournment; further submissions; Victim Impact Statements received]

Meaning of verdict

At this stage, I wish to take a short time to explain the true meaning of my verdicts, and their effect, for the benefit of all members of the community, most significantly those who love the deceased and are grieving his death.
In particular, I wish to explain that a verdict of "not guilty on the ground of mental illness", although it does express the fact that Mr Franklin is not to be held criminally liable for his actions, certainly cannot be equated with a complete acquittal. That is so for the following reasons.
First, as I have said, Mr Franklin has not been judged to be criminally liable, as a result of his grossly disturbed mental state on the morning in question. But I have earlier today also publicly expressed my finding that he did indeed commit the two arsons, and that he did indeed violently cause the death of Mr Arthur Phelan.
Secondly, I hope it is appreciated that merely because three verdicts of not guilty, of a special kind, have been returned does not reduce for a moment the tragic aspects of this matter, and the recognition of that tragedy by the criminal justice system.
Thirdly, it is true as a matter of strict theory that statute might permit, in very limited circumstances, the immediate release of a person found not guilty on the ground of mental illness. But in this case, that is absolutely and obviously out of the question. The effect of my verdicts and the orders I shall shortly make is to the opposite effect: Mr Cody Franklin will be committed to the long term care and control, including detention, of the Mental Health Review Tribunal. And pursuant to statute, it is the responsibility of that Tribunal to ensure that Mr Franklin is not released into the community unless and until it is satisfied that he will not seriously endanger himself, or others.
Fourthly and finally, much of the special hearing was, and all of my reasons for verdict are, a minute and dispassionate analysis of the details of a vast amount of evidence. But that does not mean that I have been unaware of the suffering that the brutal death of an elderly, frail, and well-loved gentleman has inevitably caused, not only directly to him, but also to many others.
In that regard, I have now been specifically told, orally and in writing, and in moving detail, of the immense pain and damage that the violent death of the deceased in his own home has caused to many. I accept entirely that, for family and others, this loss of a human life and how it occurred has been almost unbearable. I also accept that it has been a struggle for many to battle on, bearing an enormous burden of heartache every single day. I hope that everyone will find a way to keep going.
Separately, I appreciate that this legal process has taken over three years to come to an end, no doubt adding to the distress of all of those involved.
I conclude my judgment by expressing, on behalf of the Supreme Court of New South Wales, my condolences to all those who are grieving, along with my hope that the conclusion of the proceedings today may provide some measure of relief to all of those who are in distress.

Formal orders

I make the following orders: 1. Mr Cody Franklin is to be detained 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 to provide those bodies with the following documentation: 1. A copy of these reasons for verdict and my orders; 2. A transcript of these proceedings; 3. A copy of the exhibits tendered at trial; and 4. A copy of the victim impact statements.

Amendments 03 September 2020 - Decision: Para 151: deleted the paragraph number, paragraph 152 - line 3: deleted the word "is", paragraph 154 - line 1: after the word "Secondly" inserted "I hope it is appreciated that", paragraph 159 - line 1: after the word "expressing" inserted ", on behalf of the Supreme Court of New South Wales," 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: 03 September 2020

Mental Health (Forensic Procedures) Act 1900(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (1)