The psychiatric evidence concerning the accused's mental condition
29Dr Nielssen provided a comprehensive report, dated 28 December 2009, at the request of the accused's legal representatives. Having interviewed the accused, Dr Nielssen made the following observations about his condition at the time that he killed the deceased:
It was soon apparent that Mr Gardiner had a severe form of mental illness and was also of below average intelligence. His answers were disorganised in form and many of his answers were unrelated to the questions put to him. He expressed a number of bizarre beliefs, for example, that he had been posted overseas as part of the Australian army, that he had been in the air force, that he had completed the Higher School Certificate and that he owned a large amount of property in the Casino area.
Mr Gardiner came to the interview from a mental health area of the MRRC and was able to tell me that he had been transferred to that area from soon after his arrest [sic] saw a psychiatrist at regular intervals. He said that he had been prescribed the anti psychotic medication, quetiapine (Seroquel) at the moderate dose of 600 mg per day in combination with the mood stabiliser valproate (Epilim) and the antidepressant mirtazepine (Avanza)
Mr Gardiner reported experiencing hallucinations of voices that included the voices of people he knew as well as some unfamiliar voices. He agreed that he had experienced hallucinations for some years, that he was experiencing hallucinations around the time of his reception to prison, and that he was probably hearing voices at the time of the offence. However, his answers to questions about the reason for the offence were very difficult to follow and I was unable to establish the effect of any symptoms around the time of the offence or whether his actions were a direct response to symptoms of mental illness.
When taken to the allegations in the Police Facts, Mr Gardiner became uncomfortable and gave increasingly disorganised answers that were difficult to follow. I was unable to elicit a clear account of the circumstances of the offence or why Mr Gardiner might have committed the offence. He was also unable to tell me anything about the circumstances of his arrest and said that he did not remember being at a property outside Casino or what took place between the day of the offence and his arrest. He agreed that she was in a wheelchair because of complications of diabetes. He denied believing that she presented a danger to him or that she had offended him in any way. He said that just before the offence "I had voices screaming out asking for help ... they knew that everyone was going crazy up there ... I saw boys in blue running up the street in balaclavas". However, he became increasingly agitated in response to further questions about the case itself and asked whether he could continue the interview on another day.
When taken to his circumstances in the period before his arrest, Mr Gardiner told me that he was released from prison several months before the alleged offence and that he had been sent by train from Sydney to stay with a woman he described as his auntie, who was related to his father. He said of the arrangement "it all happened in a hurry and I didn't get my medication". He said that during the months that he lived in Casino he had not taken any anti-psychotic medication.
Mr Gardiner confirmed that he had smoked cannabis with various friends and relatives on most days after arriving in Casino, including on the day of the alleged offence. He also reported having a number of drinks at a local hotel on the day of the grand final of the local rugby league competition and then watching the game, although he could not tell me the names of the teams or the outcome of the game. He said that he did not have enough to drink to become intoxicated, although when asked he said that he did not remember much of what happened that day.
In response to a question later in the interview as to whether he had ever performed any paid work, Mr Gardiner said "what happened was I studied ... when I got the HSC I qualified to be a mechanic in the army ... I went overseas a few times and then I was in the Air Force ... if I got into trouble I came back home ... they took me
off the streets after I was staying at my aunties ... that's Liz Phillips ... she rang the police on me and admitted me to Rozelle Hospital ... my ex missus had an AVO on me ... I had to front the judge then went back to the juvie system ... I excaped from Rozelle Hospital a few times ... I was on heroin and ice at this time ... then I ended up back in gaol in the screening unit".
30Having reviewed the accused's medical records, and after taking into account his longstanding history of abuse of alcohol and cannabis as well as his psychiatric history, Dr Nielssen diagnosed the accused as suffering from chronic schizophrenia and from substance use disorder.
31He expressed his conclusions in the following terms:
The diagnosis of chronic schizophrenia is made on the basis of Mr Gardiner's account of typical symptoms of schizophrenia, the medical records showing treatment for schizophrenia since at least 2006 and Mr Gardiner's presentation during the recent interview, when he had disorganised thinking and bizarre beliefs that were consistent with acute mental illness.
Mr Gardiner's pre-morbid intelligence was estimated to be at the bottom of the normal range or in the mildly mentally retarded range from his reading ability and general knowledge. His intellectual performance was further affected by the presence of active symptoms of mental illness.
The diagnosis of substance abuse disorder is made on the basis of a history of abuse of drugs known to have harmful psychological effects, especially in people with underlying schizophrenic illnesses, and the probable role of substance abuse in the exacerbation of Mr Gardiner's illness and his behaviour on the day of the offences.
...
The observations of Mr Gardiner around the time of the offence indicate that he was acutely mentally ill at the time of the offence. I believe he will be able to raise the defence of mental illness to the charge, on the basis of the effect of his grossly disorganised thinking and acute symptoms on his ability to appreciate that his actions were morally wrong and his ability to reason with sense or composure about the likely consequences of his actions. (emphasis added)
32In a supplementary report dated 7 January 2011 Dr Nielssen provided the following further opinion:
After reviewing the medical records regarding Mr Gardiner's treatment in the year before the offence and interviewing Mr Gardiner again, it is clear that he had a severe exacerbation of a chronic schizophrenic illness from which he has only recently made a partial recovery as a result of treatment with a high dose of antipsychotic medication.
Mr Gardiner was acutely mentally ill at the time of the offence and I believe he has the defence of mental illness available to him. He had a disease of the brain in the form [sic] an acute exacerbation of chronic schizophrenia, that produced an abnormality of mind that is recognised in law to be a disease of the mind. His mental illness produced a defect of reason in the form of bizarre delusional beliefs that the hallucinations he was experiencing were real, and that he was a former soldier and owned land in the Lismore area. Moreover, the grossly disorganised thinking associated with the acute exacerbation of illness prevented him from reasoning with sense or composure about the consequences of his actions or understanding that his act in stabbing a disabled female relative was morally wrong. (emphasis added)
33Dr Samson Roberts was asked on behalf of the Crown to examine the accused and to prepare a psychiatric opinion in relation to him. He was also asked to comment on Dr Nielssen's report of 28 December 2009. Dr Roberts prepared a report dated 31 May 2010 after having examined the accused on 10 May. Dr Roberts made the following observations about the accused's mental state at the time that he killed the deceased:
Mr Gardner was asked as to whether there had been any conflict between him and his aunty to which he replied that there had been a little bit of yelling here and there. He did not recall any specific issues of conflict. Mr Gardiner could not recall what the voices were saying at the time of the offence, nor could he recall his emotional state at the time.
When asked as to what was going through his mind however, he referred to "a lot of stress". Mr Gardiner explained that his aunty was in a wheelchair and that she could not do much for herself. He would have to do things for her which he referred to as hard work. He helped with household duties. By his account, she could care for her own physical needs.
Mr Gardiner acknowledged that he had been accused of stabbing her. He stated, "They say she's dead." When asked as to whether he believed those people who had told him she is dead, he replied, "I don't know." He stated his opinion that she is probably in Witness Protection if she is not dead. He stated that he had not tried to get in touch with her. Another aunty had tried to visit him but he had declined the visit.
When asked whether he recalls the event, Mr Gardiner acknowledged that he "sort of remembers." Mr Gardiner recalled someone grabbing his hand. At the time, he had a knife in his hand because he was cooking. Mr Gardiner stated that he did not know who or what had grabbed his hand. When asked as to what subsequently happened, Mr Gardiner stated, "Then she passed away." Mr Gardiner stated that he did not think she would die. He stated that he had no intent to kill her. At the time of the incident Mr Gardiner stated that he did not know what was going on and that it was only five to ten minutes later that he realised. He acknowledged that he "sort of remembered the knife going into her". Then he stated, After I did it I stopped and I realised what I had done."
When asked as to what was going through his mind at that time, Mr Gardiner explained that he was not thinking and that he did not realise that what he was doing was wrong at the time. (emphasis added)
34Dr Roberts then commented upon what his examination of the accused had revealed in the following terms:
Mr Gardiner presented as a slightly built Aboriginal man in prison greens. Psychomotor retardation was evident consistent with a mental illness. Speech was slow and lacking in spontaneity. Mr Gardiner's affect was restricted through much of the assessment process although when discussing certain symptoms, he smiled broadly and gave the impression of embarrassment. Mr Gardiner gave an account of past auditory hallucinations of a commanding nature and others commentating on him. He gave an account of paranoid ideas in the past and delusions of reference, namely the delusion that events have a particular relevance to him. Certain aspects of his knowledge suggested persisting delusions of reference at the time of the assessment.
35Dr Roberts' diagnosis was that the accused was suffering from schizophrenia - paranoid type, alcohol dependence and polysubstance abuse. He continued:
With regard to the diagnosis of Schizophrenia as per DSM IV-TR Mr Gardiner's description of symptomatology and longitudinal history of delusions and hallucinations is consistent with the diagnosis. In terms of Criterion A Mr Gardiner has experienced these symptoms for in excess of 1 month. As required in Criterion B he has exhibited a degree of dysfunction. Criterion C requires that the disturbance is present for in excess of 6 months which is true in Mr Gardiner's situation. As required by Criterion D, the condition is not accounted [sic] by a diagnosis of Schizoaffective Disorder or Mood Disorder. Criterion E requires that the symptomatology not be the result of substance use or general medical condition. Given the protracted period of abstinence in custody, his symptoms cannot be ascribed to substances.
36In respect of that part of the statement in which the accused yelled out:
"I killed my mother, I killed my mother, I'll stab any of you cunts if you come out. I'm going to stab her again, I'll stab my mum again and why don't you kill her like you murdered our mother."
Dr Roberts commented that:
In my opinion, these statements indicate a grossly disturbed state of mind. Had Mr Gardiner realised the nature of his act, namely that he had killed Ms Phillips, he would not be of the view that he could indeed kill her again or that someone else would be able to kill her. His reference to her being his mother is also consistent with a disturbed state of mind.
37The accused's repeated statements to Mr Donnelly namely, "Let's go and kill people", suggested to Dr Roberts that he was "suffering a significant psychotic episode" at the time. Dr Roberts examined a number of the accused's medical records, including those held by Lismore Base Hospital and the clinical file maintained by Justice Health. In that material were other assessments that the accused was suffering from chronic schizophrenia. On other occasions he was described as being acutely psychotic for which he was prescribed anti-psychotic medication. Dr Roberts expressed his conclusions in the following terms:
Mr Gardiner gave an account consistent with the presence of psychotic phenomenology of onset as long ago as at least 2003. Although Mr Gardiner ascribes the onset of auditory hallucinations and paranoia to his use of methamphetamine, it is evident that his use of this substance was relatively short-lived and the symptoms described above persisted well beyond cessation. Whilst Mr Gardiner has been in psychiatric treatment, the account provided by him is indicative of the prescription of a sub-therapeutic dose of antipsychotic medication and, based on his account, it is evident that he did not experience remission of his psychotic symptoms. Indeed, it is not expected that a dose of the antipsychotic medication as prescribed would have achieved remission.
Mr Gardiner gave an account of a tumultuous childhood characterized by the death of his mother, frequent relocation and interrupted schooling which ended at Year 8. Although Mr Gardiner reported achieving literacy, he considered himself illiterate at the time of my assessment of him.
Mr Gardiner commenced substance use at age 13 years and has consistently used substances since that time, such that it is expected that he would exhibit cognitive deficits on neuropsychometric assessment independent of the effects of his psychotic illness.
At the time of the offence for which Mr Gardiner is before the Court, he had ceased antipsychotic medication and by his account experienced a marked exacerbation of his psychotic symptoms, including auditory hallucination, persecutory delusion and delusions of reference. At the same time it is apparent that he was responsible for assisting his wheelchair-bound aunty with day-to-day chores, a circumstance which he found stressful.
Mr Gardiner referred to limited recall of his emotional state at the time of the offence beyond acknowledging that he felt stressed. By his account, there was no overt precipitant to his actions, no planning or forethought. Mr Gardiner recalled not being in control of his body, namely feeling his hand grasped and directed by something or someone. At the time of the event, he happened to be holding a knife because he was preparing food. Mr Gardiner recalled that at the time of the event he was unaware that the act in which the perceived external force compelled him to engage was wrong. It was only subsequent to the event that he became cognisant of what had occurred. At the time of my assessment of him, Mr Gardiner remained skeptical in relation to reports that his aunty had died.
On the basis of these factors it is my opinion that Mr Gardiner may have available to him a defense of Mental Illness in accordance with McNaughton (sic) (emphasis added).
38On 18 November 2010 Dr Roberts provided a supplementary report after having examined the accused again on 15 November. His conclusions on this occasion were expressed in the following terms:
It is evident that Mr Gardiner has experienced a marked improvement with respect to his psychotic symptoms. ... Despite his obvious improvement, it is evident that Mr Gardiner continues to experience symptoms reflective of his illness.
The account provided at the time of my assessment of him on 15 November 2010 was in essence consistent with that which was provided at the time of my assessment on 10 May 2010. Mr Gardiner described the experience of florid psychotic symptoms in the context of which he was stressed and angry. Whilst he described a pervasive emotion of anger, he could not identify a basis for it other than to state that he was angry at himself because of the voices.
On the basis of the above factors, it is evident that Mr Gardiner's thought processes were so adversely affected by his psychotic illness as to impede his ability to reason. The act, based on his account, occurred suddenly without forethought and without the belief that it would cause death or indeed that it has caused death.
It is my opinion therefore that Mr Gardiner would have available to him a Defence of Mental Illness in accordance with McNaughton. (sic)
39To establish the defence of mental illness the accused must prove, on the balance of probabilities, that at the time of the killing he was suffering from such a defect of reasoning arising from a disease of the mind that he did not know the nature and quality of what he was doing, or alternatively if he did know it, that he did not know that what he was doing was wrong. (the M'Naghten test). It is the second limb of that test which is of particular significance in the present case. That requirement was described in the following terms by Dixon J (as his Honour then was) in R v Porter (1936) 55 CLR 182:
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. (at 189-90)
See also Stapleton v R (1952) 86 CLR 358 at 367.
40It is to be observed that the opinions of both Dr Nielssen and Dr Roberts, particularly in those passages which I have highlighted, are directed to the test which I am bound to apply. In light of the evidence to which I have referred including the various utterances and actions of the accused at the relevant time, and his considerable history of mental illness, I have no hesitation in accepting the opinions of those experts, each of whom is eminently qualified in the area of forensic psychiatry.
41I accept the submission made by each of the parties that the accused has established upon the balance of probabilities that he did not know, in the relevant sense, that what he was doing was wrong, and that therefore he was mentally ill at the time he stabbed and killed the deceased. It is axiomatic that a person who is found to be mentally ill cannot be held criminally responsible for his or her actions.