R v Goodridge

[2012] NSWSC 378

Supreme Court of NSW|2012-04-19|Before: Adamson J, Rothman J, Spigelman CJ, Sully J

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Source facts

Court

Supreme Court of NSW

Decision date

2012-04-19

Before

Adamson J, Rothman J, Spigelman CJ, Sully J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Background 1The accused was charged with the murder of Carmel George. On 21 March 2011, Rothman J found the accused unfit to be tried on the charge of murder and referred him to the Mental Health Review Tribunal under the provisions of the Mental Health (Forensic Provisions) Act 1990. By determination made on 26 July 2011 pursuant to s 16(1) of the Mental Health (Forensic Provisions) Act, the Tribunal determined that the accused, on the balance of probabilities, will not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences included within the indictment in relation to which he has been found to be unfit to be tried. It also formed the opinion that he will not be unfit during the period of 12 months after the finding of unfitness by the Court. 2By letter dated 1 September 2011, the DPP, pursuant to s 19 of the Mental Health (Forensic Provisions) Act, advised the Registrar that the DPP intended to proceed with the charge of murder against the accused and sought that the matter be listed for a special hearing. 3On 16 April 2012 the accused was arraigned on an indictment dated 16 April 2012 charging him with the murder of Ms George between 13 and 17 May 2009 at Moss Vale: Crimes Act 1900 (the Act) s 18(1)(a). The accused is taken, by s 21(3)(a) of the Mental Health (Forensic Provisions) Act, to have pleaded not guilty to the offence charged.

[2]

Evidence 4The Crown tendered several statements of lay witnesses and police officers, as well as expert reports of Dr Westmore, psychiatrist, and other experts' reports, including the autopsy report and analyses of DNA and of Ms George's blood. Several photographs of the crime scene were tendered, as well as photographs of the accused taken on CCTV in Moss Vale. On the evening of 16 May and the morning of 17 May 2009, the accused was interviewed and the interviews were electronically recorded. The Electronically Recorded Interviews with a Suspected Person (ERISPs) and the transcripts were tendered by the Crown. I watched the films of both ERISPs in open court. 5The defence relied on expert reports of Dr Nielssen, psychiatrist, and Dr Lennings, psychologist. 6There was no cross-examination of any of the witnesses. All the statements were tendered without objection. The Crown and the defence agreed to waive the rules of evidence. Section 184 of the Evidence Act 1995 permits an accused in a criminal proceeding to admit a matter of fact or to give a consent "if advised to do so by his or her lawyer". Section 190 of the Evidence Act permits the rules of evidence to be waived; however the defendant's consent in criminal proceedings is not effective unless the defendant has been advised to consent by his or her lawyer. Mr Winch, who appeared for the accused, confirmed that he had given him the requisite advice. The procedure adopted is not inconsistent with s 21(1) of the Mental Health (Forensic Provisions) Act: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 at 6 [15]-[18], per Spigelman CJ, with whom Sully J agreed.

[3]

Facts 7The accused lived in Moss Vale. From about 2003 to 2006 he worked at "Polly's Pies", a local bakery, doing washing up and cleaning duties. In 2006, Brian Pollard, the proprietor, terminated the accused's employment because of a change in his behaviour associated with alcohol and drug use. Since that time the accused has not worked. 8The accused was well known in certain quarters in Moss Vale. He was inseparable from his dog, Zone, whom he had obtained from the pound in about 2001. He took Zone for a walk at about 4.00 am every morning around the Moss Vale town centre. On his way he would drink the dregs from wine bottles left out for him by a sympathetic restaurateur. Mr Pollard would give him leftover pies from the previous day's business. He would then go to the Jemmy Moss hotel, which opened at 8.00 am, where he would drink schooners of VB whenever he could afford to. 9In May 2009, the accused, who was then 52, was evicted from his Housing Commission flat. For a few nights, he stayed in a unit in which Paul Knight, a friend of his, resided. 10On Saturday 9 May 2009, Ms George, who was then 39, left a rehabilitation centre for alcoholics where she had been residing and went to stay at Mr Knight's unit. 11On Sunday 10 May 2009, John Parry, a local barber, heard the accused yelling: "Come on dog, I'm gonna go and lay on the road." 12Later Mr Parry saw the accused lying in the middle of the road surrounded by people. He had been hit by a car at low speed. His injuries were relatively slight: abrasions to his nose and forehead, a black eye and an injury to his leg which caused him to limp. He was admitted to hospital. Ms George approached Mr Parry and told him that she intended to sit with the accused all night in hospital. She tried, unsuccessfully, to persuade him to buy her a bottle of vodka because she said that she was coming down off heroin. 13By Tuesday morning, 12 May 2009, the accused resumed his usual practice of drinking at the Jemmy Moss Hotel at 8.00 am. He was observed drinking with Ms George that day. She purchased alcohol for him to consume at the hotel. When the barmaid refused to serve Ms George because she was intoxicated, Ms George purchased a bottle of vodka, which was her preferred drink, to take away. 14At 12.30 pm on Tuesday 12 May 2009, Ms George bought another bottle of vodka from the BWS bottle shop at Moss Vale. She returned at 2.30 pm for yet another bottle of vodka. She gave an explanation to Douglas McVie, the manager of the shop, that she was shaken up because she had been looking after the accused in hospital after he had been hit by a car. 15On the following day, Wednesday 13 May 2009, the accused and Ms George were again seen drinking at the Jemmy Moss. That day, the accused went to the Bank to collect his fortnightly disability pension. As was his custom, he proceeded to use it to purchase two casks of Stanley chardonnay, some of which he then consumed. Ms George returned to the BWS bottle shop in Moss Vale at 10.30 am and purchased a bottle of vodka. During the day the accused bought some lamb which he roasted at Mr Knight's place. 16Later that day, after Mr Knight and the accused had drunk considerable quantities at Mr Knight's unit, they went to the Moss Vale Hotel with a view to engaging in a fight. Mr Knight wore his Moss Vale Dragons football jumper and, for the first time, the accused wore a bright red jumper. When Mr Knight and the accused returned to Mr Knight's unit that evening they drank the rest of the cask of wine with Ms George. That night Mr Knight and Ms George shared a bed, as they had done previously, and the accused slept with Zone. 17On Thursday 14 May 2009, Mr Knight told the accused that he could no longer stay in his unit because the owners objected. The accused and Ms George told Mr Knight that they intended to stay at the railway barracks. I infer that Ms George decided to stay there because she was concerned for the accused's welfare following the car accident. The building is a disused accommodation residence within the boundary of the Moss Vale Railway Station. It is a single storey brick structure with a metal roof. It was used by squatters and itinerants and was in a state of disrepair with several windows smashed. 18On Thursday morning, the accused returned to the Jemmy Moss Hotel for a drink with Ms George. He was still wearing the bright red jumper. At about 11.00 am Ms George went to the BWS bottle shop in Moss Vale and purchased the cheapest bottle of wine available, for $5. She started to open the bottle in the shop but Mr McVie told her that she was not permitted to drink in the store or on the street. At about this time the accused moved his possessions with the aid of a shopping trolley to Room 6 at the railway barracks. 19On Thursday night, Ms George and the accused stayed at the railway barracks. During the course of the evening and into the night they continued to consume substantial quantities of alcohol. At some time before the accused left the barracks on Friday morning, he made sexual advances to Ms George which were unwelcome. He became angry and violent. He wanted to hurt her and to "teach her a lesson". On several occasions he pushed Ms George against the wall of Room 6 with such force that she fell to the ground. At some stage he repeatedly forced his right arm into her vagina and her rectum, causing the internal injuries and profuse bleeding from which she eventually died. 20On Friday morning, when the accused woke, he was horrified by the pool of blood which surrounded Ms George's body. He restrained Zone from sniffing or licking the blood and took him out for a walk. 21The accused went to the Jemmy Moss Hotel at about 9.00 am. The bar attendant, Maree Baxter, noticed him entering through the back door, which struck her as strange since he usually came in through the side door near where he tied up Zone outside. When the accused came to the bar and faced her, Ms Baxter could see that his entire face and the right side of his upper body were covered in dry blood. The blood on his face was all splattered with dots all over his face. There was dry blood on his jumper, and the shirt he wore underneath. She did not observe any injuries that would account for the blood. She said: "Fuck Michael, what's happened to you? It looks like you have murdered somebody. Get to the toilets and wash your face. I'm not going to serve you looking like that." 22The accused's face was blank. He went off to the toilets and then returned to drink a schooner of VB. Ms Baxter noticed that his black jeans were on inside out. 23Later, another bar attendant, Amanda Acton, observed him and refused to serve him, not because she regarded him as drunk, but because he was "such a mess". Shortly afterwards, the accused untied Zone, left the Jemmy Moss and did not return. 24Later on Friday morning, at 10.46 am, the accused went to the Moss Vale branch of the Commonwealth Bank and withdrew $100. The teller, Racelle Willcock, noted that his clothes and face were covered in blood. On several occasions on Friday 15 May 2009, the accused returned to the railway barracks and saw Ms George's body lying on the floor in a pool of blood. He partly covered her with sheets and tried to wipe up some of the blood in an ineffectual way. He neither disclosed what had happened, nor sought help. At some stage he touched Ms George's body and found it to be cold. 25On Saturday 16 May 2009, Sharon Millbank, a mutual friend of the accused and Ms George, was in Moss Vale on a visit. At about 11.00 am she was walking past the Central Hotel when she recognised Zone. She went inside to renew her acquaintance with the accused, who purchased a schooner of VB for her. 26When John Marnach, a local, arrived at the Central at 12.15 pm on Saturday, he noticed that the accused had changed his clothing since he saw him at the Jemmy Moss the previous morning. The accused looked clean and was wearing white pants, which Mr Marnach regarded as uncharacteristic. 27Ms Millbank, who wanted to get in touch with Ms George, asked the accused whether she was still in rehabilitation for her alcohol problem. At first he said that he had not seen her, but after some time, he commented that she was at the railway barracks "covered in blood". When Ms Millbank asked what happened, the accused said that he thought she might have been raped a couple of days earlier. Ms Millbank went with the accused to Room 6 of the barracks and found Ms George's body on the floor in a pool of blood. Ms Millbank then telephoned Triple 0 and handed the telephone to the accused so that he could guide ambulance officers to the location. 28While the ambulance officers were on the telephone, the accused confirmed to the officers that Ms George was dead. When the ambulance officers arrived, they found Ms George's body lying on the floor of Room 6 in a pool of blood. She was naked from the waist down with only a sheet or blanket to cover her. She was dressed in a bra that was pulled up to her neck area, a blue and white striped T-shirt, also pulled up, a black jersey and brown socks. Her head was partly covered with a mattress. Her eyes were still open and her head was tilted back. Blood was smeared on the wall beside her. There was also a palm print on the wall in blood. Analysis later established the palm print to be that of the accused and the blood to be Ms George's. 29The unchallenged coronial evidence of the direct cause of Ms George's death was exsanguination due to vaginal and rectal injuries. Acute alcohol intoxication was identified as a significant condition contributing to her death since it could impair the metabolic, haemodynamic and inflammatory response to haemorrhagic shock. An analysis of Ms George's blood alcohol content recorded 0.373 g/100mL. 30The coronial report described injuries to Ms George's vagina and rectum as follows: "There were extensive injuries on the vestibules of the vagina with a small laceration on the posterior aspect of the vaginal wall at the opening. The lacerations extended symmetrically into the vagina on both sides. Small pieces of fine black material and fibres were present in the vagina. There were also numerous lacerations around the rectum with extensive laceration, bruises and swelling. The anal opening had an irregular appearance and blood was visible." 31The evidence establishes that the accused inflicted the injuries which caused Ms George's death. Detective Sergeant Moon, who investigated the scene and physical evidence, concluded that the blood patterns on the accused's sleeve were consistent with the accused using his right arm to inflict the injuries which Ms George had sustained. Blood staining on a white shirt apparently worn by the accused tended to establish that there was a subsequent sexual assault after the initial injuries had been inflicted. 32The accused was asked some questions by Senior Constable de Haan who recorded that the accused said that he had seen Keith Doherty in the building the previous night; that he thought she had been raped or otherwise injured due to the amount of blood; and that he had drunk a lot of wine and vodka in the past week. The accused denied that he had any sexual relationship with Ms George.

[6]

The second ERISP 37A second interview was conducted between 6.11 am and 8.00 am on Sunday 17 May 2009. In the course of the interview, the accused admitted that he had had sex with Ms George in the last 3 days. 38He also said: "I got very cranky with her and pushed her, and she fell down on the floor and hit her head, not the mattress, actually, she just hit her head. I picked her back up, and then I threw her down again." 39When asked to explain how Ms George made him angry he said: "I don't know, she started yellin' and carryin' on like she normally used to... it just got to me and I freaked out, and pushed her hard... [She was yelling] Get away from me, or somethin'. The more she was yelling, the more angrier I got, and I pushed her." 40When asked why Ms George was yelling for him to get away, he said: "She probably thought I was tryin' to hurt her, but then she... [I] just got goin' and give her a good hard push." 41He admitted that he had pushed her very hard. He admitted that he wanted to hurt her. When asked what he was trying to do he said: "Most probably tryin' to teach her a lesson or something." 42The accused told police that she screamed that she did not want to have anything to do with him, which made him "cranky" and he pushed her again. He said that he was "hurt" by this because he "liked her a lot". 43The accused admitted that he pushed her to the floor on several occasions. He said that they were drinking throughout Thursday night. On one such occasion Ms George asked him why he pushed her. The accused told police that he then "ripped her clothes off" because of "the mood I was in". The accused then decided that he wanted to have intercourse with Ms George. He told police that when she resisted, he raped her. 44The accused told police that he then went to sleep. When he awoke on Friday morning to take Zone for a walk, Ms George was dead and lying in a pool of blood. He tried to clean up the blood "to get rid of the evidence" because he knew that he would "get in a lot of trouble". 45At no stage during the ERISPs did the accused address the injuries sustained to Ms George's vagina or rectum. I accept the Crown's submission that the accused could not bring himself to confess because of his abhorrence of what he had done.

[7]

Murder: the elements of the offence 46The crime of murder has been committed by the accused if the Crown has established beyond reasonable doubt each of the following: (1) That it was the deliberate act of the accused that caused the death of Ms George; (2) That the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm, being really serious physical injury, upon her or with reckless indifference to human life; and (3) That the act causing the death of the deceased was not carried out in self-defence. 47The evidence that the deceased bled to death as a result of injuries she sustained to her vagina and her rectum and that the accused was responsible for these injuries is compelling and unchallenged, and I accept it, as does the accused, in his written submissions. I am satisfied beyond reasonable doubt that the accused's acts in pushing his right arm up her vagina and her rectum and caused her to bleed profusely which caused her death were deliberate. 48The Crown does not suggest that the accused intended to kill Ms George, or that his acts were done with reckless indifference to human life but rather that he intended to cause her grievous bodily harm. The accused, in his written submissions, accepts that this inference can be drawn. 49Although the accused was intoxicated by alcohol at the time of the conduct that caused the death of Ms George, I am satisfied that he was capable of intending, and did intend, to cause her grievous bodily harm. Although the admissions he made in the second ERISP about his intention to hurt her related to his acts of pushing her to the floor when she was trying to resist his advances and yelling at him to keep away from her, his conduct in pushing her was part of the whole course of conduct in which he assaulted her because she would not comply with his wishes and would not behave as he wished her to. I am satisfied that he appreciated at the time of these events that his acts towards her would cause her really serious injury and that he intended to do so. There is, in my view, no basis to distinguish between his acts of pushing her to the floor, which he has admitted were done to hurt her and "teach her a lesson" and his acts of pushing his right arm into her vagina and rectum which caused her to bleed to death. 50There is no suggestion that any of the acts of the accused were done in self-defence. I am in any event satisfied that none of them was done in self-defence. 51The accused accepts, and I am satisfied, that Ms George's death occurred within the timeframe alleged in the indictment. 52Since I have found that all other issues on the charge of murder have been resolved in favour of the Crown, it is necessary to consider substantial impairment by abnormality of mind as a partial defence to murder.

[9]

Relevant statutory provisions 53Section 23A of the Act provides: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (7) If, on the trial of a person for murder, the person contends: (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section: "underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind." 54Section 428A of the Act relevantly defines "self-induced intoxication" as any intoxication except intoxication that is involuntary. 55The onus of proving s 23A is on the accused (s 23A(4)), but it must be proved only on the balance of probabilities.

[10]

Substantial impairment 56The first matter which the accused must establish is that at the time he pushed his right arm into the vagina and rectum of Ms George, his capacity either to understand events or to judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from a pre-existing mental or physiological condition which is not transitory. By reason of s 23A(3) of the Act I am obliged to disregard self-induced intoxication. 57This question invites a comparison between the impairment caused by the accused's underlying condition, alcohol-related brain damage, and the impairment caused by intoxication from alcohol, to the effects of which the accused was more susceptible, having regard to the underlying condition. If the impairment of his relevant capacity was substantial within the meaning of s 23A of the Act, even if the super-imposed intoxication caused by alcohol is disregarded, then he can establish substantial impairment within s 23A(1)(a). However, if the impairment in his relevant capacity from his underlying condition was not substantial unless he was intoxicated, then he cannot establish the partial defence. 58There are four items or categories of evidence which bear on this question: (1)The lay evidence of people who observed the accused in his daily life in Moss Vale, when he was relatively sober and in various stages of intoxication; (2)The ERISPs which occurred shortly after the relevant acts in which the accused was subject to his underlying condition, but was not intoxicated because of the length of time he had been in police custody; (3)The report of the autopsy conducted on Ms George which found that her blood alcohol concentration was 0.373% which, having regard to their similar statures and the fact that she and the accused had been drinking together, provides some broad indication of his state of intoxication; and (4)The opinion evidence of Dr Westmore, Dr Nielssen and Dr Lennings.

[11]

The evidence of lay observers 59The Crown tendered various statements which are the source of the narrative set out above. Many of the witnesses had an opportunity to observe the accused over a period of time and in different situations, including when he had been drinking. Their evidence is relevant to the issue of substantial impairment since they give some indication of the range of the accused's behaviour in various stages of intoxication and the effect on his behaviour of consumption of alcohol. 60Mr Pollard said that the accused was "usually a nice man" but that he could get violent. The instances of violence he described appear to have been related to consumption of alcohol or drugs. 61Mr Knight's evidence was: "Michael [the accused] has been drinking a lot more lately and getting aggressive." 62Ms Baxter said that the accused was referred to as "Mad Mick". According to Ms Baxter, who had known him for 15 years and did not regard him as mad, the nickname was created to distinguish him from others named Michael. She said that she had never seen him "misbehave or carry on in the hotel at any time". 63Mr Marnach said that he had never known the accused to be violent, although he would "yell loudly". 64Anne Daley, the bottle shop manager at the Jemmy Inn, said that she had seen the accused in town "carrying on yelling and screaming at no one" but that he had "always been intoxicated" when she had seen him like that. She said that he was usually quiet when he was in the pub. 65Steven Acton, who frequents the Jemmy Moss Hotel, said that he had never actually seen the accused sober and described him as an alcoholic. 66Mr Parry described the accused's behaviour as "erratic". He said of the accused: "Some days there he is quite normal and calm, the next day he could be really going off his head, particularly with his behaviour, using offensive language then he would calm down and start all over again. I have never seen him in the past being physically violent except being a bit abusive with his language... Michael went off the rails in the last six or seven months. He became so abusive to others. The more he drank the worse he got, whereas before he was different, hardly abusive, just language." 67Mr McVie said that the accused had a bad temper, "never seemed stable" and: "...would kick the dog and start being abusive to us for not serving him because he was too intoxicated which had happened several times." 68I consider the effect of the evidence set out above is that the accused's conduct was affected by alcohol which caused him at times to be aggressive and loud. Because of his alcoholism, he is likely to have had some base level of alcohol in his blood at any given time. His behaviour was more controlled when this level was lower. He became more erratic and aggressive the more he drank.

[13]

Dr Nielssen's evidence 71The accused was assessed at the request of his solicitors by Dr Nielssen who interviewed him by audiovisual link from gaol on 3 November 2009 and 5 August 2010. He obtained a history of a further head injury in gaol in January 2010 which "might have resulted in further damage in intellectual function". 72In his report dated 14 September 2010, Dr Nielssen relevantly diagnosed two psychiatric conditions: alcohol dependence and abuse disorder; and alcohol-related brain damage. 73In his 2010 report Dr Nielssen said as follows: "The history suggests Mr Goodridge was drinking heavily around the time of the offence and was probably affected by a large quantity of alcohol at the time of the offence itself." 74This passage accords entirely with the evidence. Dr Nielssen also opined: "Mr Goodridge's alcohol related brain damage is an underlying condition within the meaning of section 23A of the Crimes Act. His condition would affect his perception of any events, his ability to judge right from wrong and especially his capacity to control his actions. His underlying condition would result in an increased susceptibility to the effects of alcohol." 75This opinion but does not assist in determining the principal issue: whether the impairment in the accused's relevant capacity as a result of the underlying condition was substantial if the effects of self-induced intoxication from alcohol are disregarded. 76Dr Nielssen interviewed the accused again on 16 March 2012 and prepared a report dated 23 March 2012. Dr Nielssen commented that his mental state had deteriorated since the previous interviews. He considered this deterioration may be attributable to the assault he sustained in prison in January 2012. He made a new diagnosis of dementia. 77Dr Nielssen's opinion appears in the following passage: "I confirm the opinion expressed in the previous report about the availability of the defence of substantial impairment of abnormality of mind, based on the assumption that Mr Goodridge had significant degree of alcohol related brain damage at the time of the offence. Brain damage is an underlying condition within the meaning of Section 23 A of the Crimes Act. His underlying condition would give rise to an abnormality of mind which would have a significant effect on his perception of any events and his ability to judge right from wrong, even in the absence of intoxication with alcohol. However, because of his underlying brain damage, aggressive behaviour associated with Mr Goodridge's consumption of alcohol is due to the effect of alcohol on an abnormal brain, and is a form of pathological intoxication, rather than a voluntary form of intoxication in which the effects on behaviour can be anticipated. Intoxication with alcohol on a background of brain damage is likely to have resulted in significant impairment in the perception of events, capacity to judge right from wrong and the capacity to exercise self-control. Mr Goodridge would be unable to live independently in the community, and will require secure nursing home care in the event of his release." [Emphasis added.] 78At its highest, Dr Nielssen is saying in the first underlined passage that the accused's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, being alcohol-related brain damage, even if his self-induced intoxication at the time of the acts causing the death were disregarded. 79I accept Dr Nielssen's opinion in the second underlined passage. However, it does not follow from the fact that the alcohol consumed by the accused had a greater effect on his capacity than it would have done had it not been for the underlying brain damage that he was substantially impaired by an abnormality of mind arising from the underlying condition when he committed the offence if the substantial impairment arose from the intoxication, rather than the underlying condition. 80Dr Nielssen uses the term "pathological intoxication" which, without further explanation could be taken to mean that the accused's intoxication was involuntary, and therefore not self-induced. However, I do not consider that it can properly be understood that way. As Dr Westmore explained it in his most recent report, referred to below, it is a term which describes an abnormal response following the consumption of alcohol. As long as the consumption of alcohol is not involuntary, its effects must be disregarded by reason of s 428A of the Act.

[14]

Dr Westmore's evidence 81Dr Westmore first examined the accused on 9 March 2011 at the request of the DPP. Relevantly, he diagnosed on Axis III alcohol-induced brain damage and possible brain damage associated with previous head injuries. 82His conclusion relevant to s 23A of the Act is: "I would agree with Dr Nielssen when he wrote that Mr Goodridge has an underlying condition, specifically the acquired brain damage (alcohol and possibly head injuries). I note however that he has not, by his own account, displayed any aggressive behaviour since being placed into custody and that would suggest that the underlying condition itself is not the primary source of his aggression. He acknowledges that sometimes he becomes aggressive with alcohol and he acknowledges that in relation to the victim he had been violent after drinking. That would indicate that alcohol is the critical factor in his aggressive behaviour and the alleged aggressive behaviour towards the deceased." 83Dr Westmore was asked to prepare a further report in relation to the defence of substantial impairment. Relevantly he said, in his report of 29 March 2012: "Under the heading "Presenting Complaint", on page 2 of my report, I described his account of the incident and I note, in a Record of Interview, he told the police that he had been angry because he could not find his alcohol. He said that he did not remember saying that, but said he probably had said that. In relation to why he had been aggressive towards the woman, he said he did not know why, but "I just had enough of her. She was driving me nuts, I just had enough of her". He had memory difficulties relating to the incident and it is probable he had consumed alcohol on the day. On the balance of probability, I would accept that this man suffers from an underlying condition, specifically a disease abuse and the disease of the brain, which has its aetiology in a past history of head injuries and alcohol abuse and the disease of the brain would represent an abnormality of mind which, at the relevant time, is likely to have impaired Mr Goodridge's capacity to control himself in relation to the deceased. To that extent he would be eligible to raise the defence of substantial impairment to the charge of murder which, I understand, is now before the court." [Emphasis added.] 84The sentence emphasised in the passage extracted above is a serious understatement and indicates that Dr Westmore was unaware of the extent of the drinking binge that had started no later than Wednesday 13 May 2009 and continued relatively unabated until at least the time of the offence. Although Dr Westmore opines that the accused "would be eligible to raise the defence of substantial impairment" I do not read his opinion as necessarily supporting the proposition that the undoubted impairment from the underlying condition was substantial at the relevant time. Furthermore, the weight to be given to his opinion is substantially undermined by his insufficient apprehension of the accused's level of intoxication at the relevant time. 85Dr Westmore was invited to respond to Dr Nielssen's further report of 23 March 2012 and in particular the issue of "pathological intoxication". Dr Westmore's response is as follows: "Dr Nielssen raised the issue of pathological intoxication and this is a concept well understood by psychiatrists and it refers to an abnormal response following the consumption of alcohol. In this particular case, Mr Goodridge has established organic brain damage, which would make him more vulnerable to alcohol and to provocation. Mr Goodridge is likely to become behaviourally disturbed as a result of his underlying brain damage, even in the absence of alcohol consumption. I note that he has not demonstrated behavioural problems since being placed into custody and that raises the probable importance of provocation at the time of the incident. I understand that the deceased may have concealed, hidden or prevented Mr Goodridge accessing alcohol leading up to the events now before the court and that could well have been sufficient provocation, even in the absence of alcohol, to result in Mr Goodridge acting aggressively. It is probable that he has not experienced similar levels of provocation in custody, hence no similar problems have been identified since he has been in prison." [Emphasis added.] 86Mr Winch identified the underlined passage as "the height" of the psychiatric evidence to support the partial defence under s 23A of the Act. Although I accept that Dr Westmore considers it was possible the accused could have reacted aggressively to provocation, even if not intoxicated, by reason of the underlying condition, I do not understand his opinion to go further than that. 87I read Dr Westmore's evidence as supporting the proposition that the accused's relevant capacity was impaired by an underlying condition and that his capacity could become substantially impaired when he consumed alcohol. I do not read it as amounting to an opinion that the accused's relevant capacity was necessarily substantially impaired if the effects of ingestion of alcohol at the time are disregarded.

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My assessment of the expert evidence 90There is, as I have identified above, some support in both Dr Westmore's and Dr Nielssen's reports for the proposition that the accused's capacity was substantially impaired by an underlying condition even if the effects of his intoxication with alcohol were disregarded. The accused submitted that the opinions of Dr Nielssen and Dr Westmore were "congruent" on this question; however, I do not read Dr Westmore's opinion in this way. 91Both Dr Westmore and Dr Nielssen appear to consider that it is possible that the accused would have responded "aggressively" to provocation in the absence of alcohol. However, it is one thing to respond aggressively because he did not get what he wanted (more alcohol or a willing response to his sexual advances) but it is quite another to do what the accused did which resulted in the death of Ms George. 92The issue raised by Dr Westmore and considered by Dr Nielssen as to the "probable importance of provocation at the time of the incident" is vexed. There are two relevant distinctions between the circumstances at the time of the offence and his circumstances in gaol. 93First, at the time of the offence there was the "provocation" of the presence of Ms George, her rejection of his sexual advances and the availability of alcohol. At some stage she was almost naked because he had ripped her dress off. He said he felt "randy and horny". He was also anxious to consume more alcohol, which he believed to be available in the vicinity. He is not subject to provocations of those varieties in gaol. 94Secondly, at the time of the offence, the accused was grossly intoxicated. In gaol he is not permitted to consume alcohol and accordingly is not intoxicated. 95Although I accept that the accused has not been subject to the same provocations in gaol as those to which he was subject at the time of the offence, nonetheless I consider that had the accused's relevant capacity been substantially impaired as a result of his underlying condition, as distinct from intoxication, it is likely that his behaviour in prison would have manifest some of the features which he displayed at the time of the offence. That his behaviour has not is, in my view, supportive of the proposition that his impairment at the time of the offence was made substantial by his self-induced intoxication. 96However, even if the psychiatric evidence is taken at its highest for the accused, I would still not be satisfied that the defence under s 23A(1)(a) of the Act had been made out in part because of what I regard as the deficient foundation of the expert opinions. 97The expertise and experience of the experts is undoubted. However, for the reasons set out below, their opinions are insufficient to persuade me that impairment is made out. 98Neither of the psychiatrists reviewed the ERISPs, had access to the statements tendered by the Crown which form the basis for the factual narrative set out above and the summary of the accused's general behaviour set out above, or was aware of Ms George's blood alcohol concentration as revealed by the autopsy report. The ERISPs and the statements are, in my view, the most reliable pieces of evidence of the accused's relevant capacity and the extent to which it was impaired by his underlying condition proximate to the time of the acts that caused Ms George's death, if one disregarded the effects of intoxication. 99For example, Dr Westmore seems to have been under what I consider to be a misapprehension: that a significant trigger for the accused conduct was that Ms George may have concealed, hidden or prevented the accused from accessing alcohol. It emerges from the second ERISP that the accused put the wine cask under the sink himself, but had forgotten where he had put it. I consider that the ERISPs taken together are more consistent with the principal trigger for the accused's violence being that Ms George did not want to have sex with him and refused his advances. He then became angry and violated her. Whether he was able to penetrate her with his penis is a moot point, although he said that he did so on more than one occasion, but he undoubtedly did so with his right arm, causing the injuries which proved to be fatal. 100This may be regarded as a matter of detail as to the particular provocation which inclined the accused to act as he did. However, of greater importance, the ERISPs, viewed as a whole, display the extent to which the accused was capable of understanding events, judging whether his actions were right or wrong and, to a lesser extent, his capacity to control himself. The autopsy report shows, in broad terms, the probable level of the accused's intoxication at the relevant time. 101In my view, the ERISPs show the accused's capacity to understand events and judge whether his actions were right or wrong to be impaired by his underlying condition, but not substantially so. The lay witness statements show that when the accused was relatively sober he was reasonably capable of controlling himself, but that when he was intoxicated by alcohol, his capacity was substantially impaired. The autopsy report provides some circumstantial evidence of his state of intoxication, which was considerable. 102For the foregoing reasons, I am not satisfied that the accused's relevant capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition at the relevant time. I accept that his capacity at the relevant time to understand events, judge whether his actions were right or wrong or to control himself was, to some extent, impaired. However, in my view, his substantial impairment came from his consumption of excessive quantities of alcohol which I find to have been not involuntary, and therefore self-induced, and, by reason of s 23A(3) of the Act, to be disregarded. 103In making this finding, I have taken into account the submissions of the defence, with which the Crown agreed, to the effect that the partial defence could be made out under s 23A(1)(a) of the Act and that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. The submissions are, however, based on the foundation of the psychiatric opinions which are not, for the reasons given, sufficiently well-founded.

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Substantial impairment such as to warrant liability for murder being reduced to manslaughter 104This second matter arises only if I am satisfied as to the first matter referred to above. However, for completeness, I shall consider whether, had I found substantial impairment, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. As with other matters in s 23A of the Act, the accused bears the onus. 105Both the Crown and the defence submitted that the impairment was so substantial that I could find that it was warranted that the accused's liability for murder be reduced to manslaughter. 106In the usual case, this question is one for the jury. In the Second Reading Speech to the Crimes Amendment (Diminished Responsibility) Bill (see New South Wales Legislative Council, Parliamentary Debates (Hansard), 25 June 1997 at 11064), which reformulated s 23A of the Act, the Attorney-General said, at 11064: "Proposed new section 23A(1)(b) is the centrepiece of the new defence. It returns the jury to the central position of assessing the culpability of the accused person... In coming to its verdict, the jury brings to bear the community's collective wisdom and its sense of justice." 107Because of the special nature of this hearing, which is conducted, in the absence of an election, by judge alone (s 21A(1) of the Mental Health (Forensic Provisions) Act), I must decide this question, bearing in mind that manslaughter is regarded as a less serious crime than murder and that the community places less blame and condemnation upon a person guilty of manslaughter than of murder. In this case there is no jury to bring to bear its collective wisdom or sense of justice. In making this decision, I must not, and do not, take into account any of the opinion evidence of the psychiatrists or psychologist that could otherwise bear on the question, since such evidence is inadmissible on this question: s 23A(2). 108The accused has not discharged the onus of persuading me that any lessening of the blame and condemnation upon him is warranted. Ms George appears to have been staying at the barracks with the accused, rather than at Mr Knight's unit, because she was concerned about the accused's wellbeing following his having been hit by a car some days earlier. The acts of the accused that resulted in her death were horrendously violent and savage. His acts involved a substantial and determined use of force, which both violated and denigrated her in a brutal and degrading way. 109The admissions made by the accused on the ERISPs set out above, and in particular that he wanted to hurt her and "teach her a lesson" for not responding positively to his advances, cast his behaviour in a particularly abhorrent light. 110Even had I otherwise found the partial defence of substantial impairment to have been made out I would not have considered that it would be such as to warrant the accused's liability for murder being reduced to manslaughter.