R v Gourlay [2015] NSWSC 67 | Case summary

Judgment (8 paragraphs)

[1]

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid New South Wales (Accused) File Number(s): 2013/321993

[2]

Judgment

On 10 February 2015, I ordered (pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW)) that the pending trial of Daniel Michael Gourlay (the accused) be heard without a jury and by judge alone. I made the order because a document had been filed setting out an election of the accused to that effect, along with the consent of the Crown. In those circumstances, the statute called upon me to make that order.
Immediately thereafter, the accused was arraigned on an indictment. It contained a single count averring that, on 24 October 2013 at Emu Plains in the State of New South Wales, the accused murdered Ian Gourlay. The accused, who at all stages of the trial was represented by a solicitor and barrister very experienced in criminal law, pleaded not guilty on the ground of mental illness.
The Crown proceeded to tender a deal of documentary evidence, none of which was the subject of objection by defence counsel.
The first documentary exhibit was a comprehensive Crown case statement in orthodox form.
The second was a set of formal admissions by the accused, made in accordance with s 184 of the Evidence Act 1995 (NSW). Their effect was that the accused formally admitted that he had caused the death of the deceased, his father, by stabbing him with a knife. He also formally accepted the correctness of the entirety of the Crown case statement.

Summary of the evidence

The following chronological overview is derived from the Crown case statement that was the subject of formal admission by the accused, and the three reports prepared by Dr Allnutt and Dr Furst. Neither the history provided by the accused to those experts, nor the contents of the documents (including but not limited to medical records relating to the accused) to which the doctors referred in their reports, was placed in dispute during the addresses of counsel.
The accused was born in April 1979, and accordingly on 24 October 2013 he was aged 34 years. For many years before that date he had worked as a sander. He enjoyed an uneventful childhood and adolescence in the Nepean area, leaving school in Year 10. He commenced smoking cannabis at the age of 13 or 14 years. He also commenced to drink quite heavily from the age of 15 or 16 years. During his early twenties, he used amphetamines. On two separate occasions at around that time, he was admitted to the psychiatric unit of Nepean Hospital. On the latter admission he showed symptoms of psychosis. At that stage the accused gave a history of receiving messages from the television and radio.
By 2005, the accused, (then aged 26 years) began to exhibit symptoms of a chronic psychotic illness. Those symptoms included paranoid delusions, delusions of reference (for example, that a television or radio was communicating with him personally), and thought disorder.
In 2006, the accused expressed the view to a doctor that his parents were conspiring against him.
In 2007, the accused was diagnosed with schizophrenia, a serious mental illness often characterised by the symptoms that the accused had previously exhibited.
From 2010, the accused lived with his parents in the family home in Emu Plains in the Western suburbs of Sydney. Over a period of years the accused was violent and threatening to his parents, especially when he was intoxicated by alcohol.
In 2011, the accused spent a short time in a psychiatric unit. On discharge, he remained psychotic and had no insight into his mental condition.
His illness worsened in 2013, and in March of that year he was involuntarily detained in a psychiatric unit for four days. After discharge, he remained psychotic.
Throughout 2013, the accused developed a belief that his neighbour was trying to kill him. He also believed that aerials were sending him messages. He would not reliably take his medication, and had no insight into his mental condition. He was also abusing alcohol heavily.
In June 2013, the deceased reported to the mental health case manager of the accused that his son believed that members of his family were trying to poison him.
In the weeks before 24 October 2013, the abuse by the accused of his parents became worse, and it appeared that his mental condition was deteriorating. He stopped working in the week before 24 October 2013.
On the afternoon of 24 October 2013, the deceased had some drinks at a local Leagues Club. He came home some time before 4 pm. At about 4:30 pm, Mrs Gourlay returned to her home. At about 5 pm, the accused arrived. He appeared intoxicated by alcohol. The accused obtained some cans of alcohol from the garage and threw them onto the floor of the lounge room of the family home. The deceased remonstrated with the accused, and told him that he would have to find another place to live. The accused o a knife that he was in the habit of using whilst fishing. He said "I don't care if I spend the rest of my life in gaol", and stabbed the deceased two times to the left side of his trunk. Mrs Gourlay pushed her son away from the deceased, and disarmed him of the knife. She immediately provided first aid to her husband and telephoned emergency services. Meanwhile the deceased left the family home through the front door.
At about 5:10 pm two uniformed police officers arrived at the home. They saw the accused sitting on the driveway of the home. He said to them "I'm the one that stabbed my Dad, he's inside." The accused was immediately arrested. On arrest, the accused said to a police officer "So he is the victim after everything I get."
Tragically, the deceased passed away shortly after he was stabbed by his son.
Some time later, the accused engaged in a recorded interview with police. Amongst other things, he freely admitted that he had stabbed his father twice, once in the stomach and once in the chest. By way of explanation, he referred to the fact that, a couple of weeks before, the accused had been up on the roof of some premises. He also said "all the weird shit's been going on" and "…next thing you know shit's been all fucked up." During the interview, his manner of speech was odd, including staring blankly on occasions, and grimacing at times.
At the time of the alleged offence, the accused was not taking any psychotropic medications. He had stopped taking antipsychotic medications about two years previously, because he believed that he was not suffering from any mental problem.
A post-mortem examination of the deceased was conducted on 25 October 2013. It showed that the deceased had suffered two very deep stab wounds, the most severe of which was 17 cm in depth. That wound injured the vital organs of the deceased, and caused severe internal bleeding. The forensic pathologist expressed the opinion that the direct cause of death was multiple stab wounds.
After his arrest and incarceration, the accused showed signs of mental illness. On 26 October 2013, he reported that he was hearing voices of a commanding nature. On 14 November 2013, the accused remarked "everything I do is on TV". He also expressed the view that his food was being poisoned in custody. He was diagnosed with an acute relapse of chronic schizophrenia.
On 16 December 2013, the accused was asked about the stabbing. He remarked "everything just changed. Everything went real strange. I wasn't myself. I'd move and the TV would change." He said that he "did what he did because he had to do it."
On 16 January 2014, the accused told a doctor that voices had said that he was to do it (that is, stabbing his father) in order to save others and himself.
The accused saw Dr Furst in March 2014. When asked to describe the circumstances of the offence, the accused told the doctor that he was "all mixed up" and "upset and confused." He also accused his father of doing things to "make it worse", including "the clothes he wore". The accused told Dr Furst that "I thought mum would call them [the police] after what I did."
By the time he spoke to Dr Furst, the accused said that he felt "extremely bad" about his actions and that "it's all sinking in."
Dr Furst expressed the view that, when he saw the accused, the accused showed signs consistent with schizophrenia, including a blunted affect, impoverished thinking, and being malodorous.
Dr Furst provided two diagnoses: schizophrenia and alcohol dependence. He expressed the opinion that the accused was fit to stand trial.
Dr Furst expressed the following opinion: "Mr Gourlay was labouring under a defect of reason in the form of paranoid and persecutory delusions and the effects of auditory hallucinations that impaired his grasp on reality, made him misinterpret things about himself and his family, and prevented him from thinking about the wrongfulness of his actions with a moderate degree of sense and composure. He probably felt morally justified in killing his father in response to the paranoid delusions he was experiencing and auditory hallucinations that were apparently telling him to kill his father in order to save others and himself. He has a disease of the mind in the form of a chronic schizophrenic illness. In my opinion, Mr Gourlay has a mental illness defence available to him."
Dr Allnutt saw the accused on 18 July 2014. He received a history from the accused that was consistent with the history provided to Dr Furst. That history included receiving messages from the television, the feeling that the television was talking about him in code, and that the radio was also sending him messages. The accused described himself at around the time of the stabbing as being "in a mess."
The accused told Dr Allnutt that he felt "sick to my stomach" when he thought about his father.
Dr Allnutt noted the medical history, the events of 24 October 2013, and the things said subsequently by the accused about what had happened, both in a formal interview and informally. The summary provided by Dr Allnutt is consistent with that provided by Dr Furst, and does not require elaboration by me.
Dr Allnutt noted that, on 16 December 2013 (that is, whilst he was in custody), the accused stated that the television was telling him to hurt others, and that he was frightened that he might do so.
By the time the accused saw Dr Allnutt, the accused appeared reasonably well groomed, and could speak in a clear and coherent manner. The accused denied any active symptoms of psychosis. By that stage, of course, one can safely assume that the accused was being appropriately medicated by the custodial medical service.
Dr Allnutt diagnosed the accused as suffering from paranoid schizophrenia. The psychiatrist expressed the view that the condition has been complicated by a lack of insight into it on the part of the accused, poor compliance with medication, and the use of alcohol.
Dr Allnutt explicitly considered whether the stabbing was nothing more than an angry, drunken, infliction of violence in a domestic setting by a person who was aggrieved because he had been told that his behaviour meant that he must live elsewhere. On reflection, Dr Allnutt came to the view that that was by no means the complete picture. Dr Allnutt considered that, at the time, the accused was experiencing psychotic symptoms. That opinion was founded upon the medical history over many years before 24 October 2013; the behaviour of the accused immediately after the stabbing; and the mental condition of the accused whilst in custody.
Dr Allnutt was satisfied that the accused was fit to stand trial.
Dr Allnutt expressed the opinion that, at the time of the stabbing, the accused was suffering from a defect of reason founded upon a disease of the mind. The psychiatrist considered that the accused understood the nature and quality of his actions. He also expressed the view that the accused appreciated the legal wrongfulness of his actions. In contrast, Dr Allnutt ultimately expressed the opinion that, as at 24 October 2013, the accused did not appreciate the wrongfulness of stabbing his father to death in any deeper, moral sense.
Finally, Dr Furst was asked to express a supplementary opinion commenting upon the opinion of Dr Allnutt. To that end, Dr Furst saw the accused again on 23 January 2015.
Dr Furst recorded that the accused had come to realise the enormity of his actions. The accused referred to "the guilt. The whole thing. What I put my family through."
Dr Furst noted that the opinion of Dr Allnutt was consistent with his own. Dr Furst did not change his opinion with regard to the defence of mental illness.

Determination

Turning first to consider the Crown case, to my mind it is soundly established that the accused did an act that caused the death of the deceased. On the material placed before me, there can be no question but that the accused stabbed his father twice to his left side whilst his mother was closely nearby. It is incontrovertible that those serious wounds caused a severe haemorrhage and led to the death of Ian Gourlay. I am satisfied of those facts beyond reasonable doubt.
As for the question of voluntariness, it is true that it was not explicitly adverted to in the document setting out the formal admissions of the accused. But in oral submissions, defence counsel made it clear that there is not the slightest dispute about that element of the Crown case. Nor is there any suggestion in the evidence that the accused was acting in some way involuntarily as the law understands that concept: see Ryan v The Queen (1967) 121 CLR 205, especially when one considers the question without taking into account any mental illness of the accused. I am satisfied to the criminal standard that, when the accused stabbed his father leading to the infliction of two deep wounds to his body, that was as a result of willed movements of his muscles.
It follows that, in the circumstances of this case, the necessary elements of murder have been established beyond reasonable doubt. Accordingly, I now turn to consider whether the necessary elements of the affirmative defence of mental illness have been made out by the accused on the balance of probabilities.
I am amply satisfied on the balance of probabilities that, at the time that he stabbed his father, the accused was suffering from a disease of the mind; namely, paranoid schizophrenia. There is no question of feigning or malingering in this case: the disease was chronic; the accused had suffered from it for years; and it is manifest from his medical history both before and after 24 October 2013.
I am also satisfied that that disease led to the accused suffering from a defect of reason; namely, belief in delusions, experiencing hallucinations, being unable to think clearly, and being incapable of differentiating generally between what is real and not real. To give some examples from the many available, the accused believed that televisions, radios and aerials were communicating with him. He believed that his parents were trying to poison him, and that his neighbour was trying to kill him. He believed that his attack on his father was somehow connected to the accused climbing onto a roof some weeks before. He believed that voices were commanding him to do things. And he believed that the clothes worn by his father somehow exacerbated the manifestations of the illness from which the accused was suffering.
Turning to the third leg of the defence, as I have indicated, each counsel accepted that the accused understood the nature and quality of his act when he stabbed his father. To my mind, that acceptance is soundly based: it reflects the unanimous opinion of two eminent forensic psychiatrists. As well as that, there is no suggestion in the evidence that the accused was suffering from a delusion as to the true nature or identity of the deceased. He did not believe that he was attacking, for example, a demon, an android, or an alien, as, sadly, some very mentally disturbed people believe when they inflict violence upon others. Furthermore, the things that he said about what he had done afterwards show that the accused appreciated that he had stabbed his father. Indeed, his remark to the police immediately upon their arrival shows that very thing. In the recorded interview with police, the accused expressed his understanding that he had stabbed his father with a knife. I am not satisfied that the accused did not appreciate the nature and quality of his act when he stabbed his father; to the contrary, I am satisfied in that sense that he did indeed understand what he was doing.
Turning to the second aspect of the third leg of the defence, as I have said, each counsel accepted that, to some degree, the accused appreciated the legal wrongfulness of his acts. There was evidence to support that proposition. For instance, the accused was reported by his mother, Mrs Gourlay, as having said "I don't care if I spend the rest of my life in gaol" shortly before he attacked his father. As well, the accused spoke of the fact that he had thought that his mother would call the police "after what I did". I consider that that joint position of counsel was soundly based as well. I respectfully agree that the accused understood that his act was prohibited by the criminal law and could lead to punishment.
Each counsel contended, however, that I would be satisfied on the balance of probabilities that the accused did not in any deep or moral sense understand the wrongfulness of his actions. To my mind, there is a great deal of evidence of the actions and words of the accused that powerfully supports that proposition. It is as follows.
First, the accused was content to commit the offence in the presence of an eye witness; namely, his own mother.
Secondly, the accused announced his implicit intention to a degree before he committed the act.
Thirdly, immediately after stabbing his father, the accused did not flee the scene as one who possessed a true consciousness of guilt might have done, but rather simply sat in the front driveway.
Fourthly, on arrest, the accused referred to himself as being the victim, rather than his father, who, it must have been obvious, was gravely injured.
Fifthly, in the recorded interview, the accused connected the stabbing of his father with the fact that the accused had climbed onto a roof some time before. That wholly irrational connection is suggestive of a lack of comprehension of the moral wrongfulness of his actions on the part of the accused.
Sixthly, in custody the accused spoke of voices having commanded him to do what he had done in order to save himself and others.
Seventhly and finally, one can draw a stark contrast between the position of the accused on 24 October 2013, when he was unmedicated, and the deep guilt he came to feel about his actions once he had been in custody for some months, and his illness was being treated by medication.
To my mind, all of those aspects of the evidence strongly support the proposition that, at the time he inflicted fatal violence upon his father, the accused had no deep or moral appreciation of the wrongfulness of what he was doing.
Additionally, and leaving aside my own assessment of all of those factors, I have been provided with the considered and unanimous decision of two psychiatrists. They are each experienced not only in forensic psychiatry generally, but also within the criminal justice system, and indeed with regard to this very question. It is quite true that, sitting as the tribunal of fact without a jury, I am not compelled to accept expert evidence, even if it be unanimous. Having said that, I certainly would not dismiss it capriciously, or without sound reason. To my mind, and speaking of the three reports as a whole, the opinions of the psychiatrists are founded upon the undisputed evidence, apply the correct legal test to that evidence, are cogently explained, and are ultimately compelling.
In short, I am well satisfied that the accused did not appreciate that what he was doing was wrong according to the standards of everyday people. To the contrary, I consider that his illness led him to believe that he was justified in attacking his father in that way; indeed, he considered himself to be the wronged party.
To summarise my findings, I am satisfied beyond reasonable doubt that the accused voluntarily did an act that caused the death of the deceased. To express those concepts more simply, I am satisfied beyond reasonable doubt that the accused, by willed movement of his muscles, stabbed his own father in the presence of his mother, and that his father died as a result of the wounds inflicted upon him by his son.
I am satisfied on the balance of probabilities that, at the time he did that act, the accused was suffering from a defect of reason that arose from a disease of the mind. Again, to express that finding more simply, the accused was incapable of distinguishing between the real and the unreal because of his paranoid schizophrenia.
I am not satisfied on the balance of probabilities that, at the time he did those acts, the accused did not appreciate the nature and quality of them. I consider that the accused well understood that he was stabbing his father, thereby endangering his life.
Nor am I satisfied on the balance of probabilities that the accused did not appreciate that what he was doing was wrong in a legal sense. I consider that the accused understood that his acts were prohibited by the criminal law, and could well expose him to arrest, incarceration, and punishment.
However, I am satisfied on the balance of probabilities that the accused did not appreciate in any deeper moral sense that what he was doing was terribly wrong. To the contrary, I consider that his chronic and severe mental illness in the form of paranoid schizophrenia led him to believe that the only aggrieved party was himself.
For those reasons, I shall shortly deliver the special verdict that the accused is not guilty of the offence of murder on the ground of mental illness.
There was almost complete agreement between counsel with regard to the ancillary orders that I should make after delivery of verdict. Of course, there is not the slightest question of immediate release of the accused pursuant to s 39(1) of the Act. Defence counsel submitted, on the basis of some recommendations of Dr Furst, that I should make an order altering the current placement of the accused, in the interests of his psychiatric treatment, or at the least I should recommend such an alteration. But I consider that both steps would be precipitous: I think that the Mental Health Review Tribunal, with its expertise and resources, is soundly more qualified than me to make a considered decision as to the next step with regard to the detention and treatment of this very ill man.
As well as that, I think it appropriate that I briefly explain the practical effect of my verdict to members of the community generally, and to those intimately involved in this tragedy in particular. In a moment, the accused will be found not guilty on the ground of mental illness of murdering his father. That does not mean, of course, that the acts of the accused did not cause his father's death - they unquestionably did so. It does mean that, due to his profound and long-standing mental illness, the accused is not judged to be criminally responsible for his father's death, and is not to be branded a murderer. However, it also means that the accused will be detained indefinitely by the determinations of the Mental Health Review Tribunal, and he will not be released into the community unless and until the Tribunal is satisfied that he is not a serious danger to anyone, including himself.
Finally, I take this opportunity to express my condolences, on behalf of the Supreme Court of New South Wales, to all of those who have suffered, and who will continue to do so, as a result of the actions of the accused on 24 October 2013.

R v Gourlay

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Judgment (8 paragraphs)

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