R v Hindmarsh

Summary of Crown case

1. The Crown case is that on 31 July 2014 at some time between 6:30 am and 7: 00 am, Mr Hindmarsh struck Mr Gumley a number of times about his head with an electric guitar belonging to Mr Gumley, also strangling him with the guitar's electric lead causing fatal injuries. The Crown accepts that the whole of the evidence supports the return of the special verdict of not guilty by reason of mental illness.

Agreed statement of facts

1. The Crown and the accused tendered an agreed statement of facts signed by counsel (Exhibit B). According to Section 191(2) Evidence Act 1995 (Cth), where the parties have produced an agreed statement of facts complying with subsection (3), evidence is not required to prove the existence of these facts. Nor may evidence be received to contradict those facts without leave of the court. Accordingly, I am satisfied beyond reasonable doubt of each of the agreed facts which I have set out [4]-[25] below:
2. The offender, Paul Hindmarsh and the deceased, Joseph Gumley were both patients at the high dependency observation ward, Elouera West Mental Health Unit, at Shellharbour Hospital. They both shared room 6.
3. The offender had been an involuntary patient at the facility for a period of approximately 11 months. The offender has been diagnosed with schizophrenia and poly substance abuse (cannabis/methamphetamine and alcohol) and presented as an in-patient on 23 August 2013 after referral by police.
4. The deceased was an involuntary patient at the facility on an on-and-off basis for a number of years with a last admission date of 14 April 2014. He had been diagnosed with chronic schizophrenia and chronic alcoholism with significant cognitive deficits.
5. About 3:00am on 31 July 2014 the offender was observed by staff attached to the Elouera West high dependency unit to be watching a female patient who was in her room through the glass insert on her bedroom door. This was highly unusual behaviour for the offender.
6. About 6:30am nightshift staff, Kaitlin Brown and Neil Mullins, entered room 6 and conducted a routine inspection of the offender and the deceased. Both were seen to be sleeping at this time.
7. About 7:50 am Health and Security Assistant Ross Twyford entered room 6 to tell the occupants that breakfast was being served. The door to the room was open and ajar.
8. Mr Twyford noticed that a curtain to his left was drawn to cover the offender's bed for privacy. Mr Twyford called out to the offender and informed him that breakfast was ready. The offender did not reply.
9. Mr Twyford then noticed the deceased's bed was alongside the south western wall of the room. Normally, the deceased's bed was located on the south eastern wall against the window. It was not unusual for the deceased to move his bed around in the room.
10. The deceased was lying supine in the bed with his head closest to the door to the room and his face covered with a blanket.
11. Mr Twyford then noted chocolate coloured splatter on the wall close to the deceased's head. This was later identified as human blood. He walked over to the deceased's bed and pulled the blanket down off his face and noticed blood on the deceased's face and an injury. The deceased's face was red and blue in colour.
12. Mr Twyford pulled the blanket back up over his face. At this time the offender ran from the room and out to the courtyard area. Mr Twyford alerted staff who entered the room and commenced CPR on the deceased without success.
13. A blue coloured strap was wrapped around the deceased's neck which was removed prior to commencing CPR. Mr Twyford then entered the courtyard area and confronted the offender saying, "Did you attack Joe?"
14. The offender replied, "Yes." Mr Twyford said, "Why did you attack him?" The offender did not respond.
15. Mr Twyford and another nurse, Maxine Johnson, escorted the offender back through the facility to a seclusion room. In doing so they walked through the dining room area. At this time the offender turned to the female patient and said, "I love you."
16. The offender was placed into the seclusion room. Police were contacted and on their arrival secured the location as a crime scene. Police saw red stains on a number of the walls in room 6, the window, and on a blue coloured guitar, which were identified as blood.
17. The deceased was lying on the floor in the centre of the room with injuries to his face and head.
18. About 10:05am the offender was cautioned and arrested and conveyed to Lake Illawarra police station and introduced to the Custody Manager who read him his rights under Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002.
19. The offender consented to a forensic procedure in the form of a buccal swab, photographs and swabbing. The offender was offered the opportunity to speak with a legal practitioner of his choice in relation to both the forensic procedure and later prior to participating in an electronically recorded interview which he declined.
20. He was then offered the opportunity to participate in an electronically recorded interview and again declined saying, "I don't want to say anything".
21. The Crown case is that sometime between 6:30am and 7:50am on Thursday 31 July 2014 the offender hit the deceased with the deceased's electric guitar causing fatal injuries to the face and head.
22. An autopsy report was completed by Dr Szentmarlay which concluded that the cause of death was the combined effects of strangulation and blunt force head and neck injuries.
23. The accused has a history of mental illness having been first diagnosed with schizophrenia in 2004 with multiple admissions to psychiatric hospitals over the intervening years. It is the opinion of experts retained by both the Crown and the accused that he has available to him the defence of mental illness.

General legal principles

1. Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of this case, would usually be given to a jury.
2. I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437 at 466.
3. The starting point, and fundamental rule, as in any criminal trial, is that Mr Hindmarsh is presumed to be innocent. It is relevant to record, given his plea, that he is also presumed to be sane. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.
4. The elements of murder which the Crown must establish in the present case to prove Mr Hindmarsh's guilt are that by his voluntary, or deliberate, act of striking and strangling Mr Gumley, neither in self-defence nor by provocation, Mr Hindmarsh caused Mr Gumley's death, intending at that time to kill him. Given the nature of his acts and the account he has given to various psychiatrists who have since examined him, the consideration of a lesser intent can safely be put aside.
5. Particular considerations apply to this case because Mr Hindmarsh has raised mental illness as a defence: Hawkins v The Queen [1994] HCA 28; 179 CLR 500; R v Minani [2005] NSWCCA 226; 63 NSWLR 490 at [32]. Those considerations relate to the order in which the issues are required to be approached. As Ms C Loukas SC, who appears for Mr Hindmarsh, and the learned Deputy Senior Crown Prosecutor both argued, the better view is that the issues are to be approached in the order which I will now set out.
6. The first issue is whether the striking of Mr Gumley with the guitar and strangling him were deliberate acts. Mental illness is irrelevant at this stage. There is no issue that the actions of Mr Hindmarsh against Mr Gumley were willed and voluntary.
7. The second issue is whether Mr Hindmarsh is criminally responsible for the consequences of his actions. This involves resolution of the mental illness defence.
8. Once again, there is no issue that Mr Hindmarsh suffered from a mental illness when he killed Mr Gumley; probably for some years before; and ever since. Mr Hindmarsh was first diagnosed with schizophrenia in 2004, and since then has been involuntarily admitted to psychiatric hospitals on multiple occasions. His last such admission was on 23 August 2013 to the Elouera West Mental Health Unit, where he remained up until the day of the alleged offence. At the time, Mr Hindmarsh was being treated for schizophrenia and poly substance abuse. The issue is as to the nature and severity of his illness: was it such as he was not responsible for his actions in the relevant legal sense?
9. The mental illness defence is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW). Section 38 provides for a "special verdict" if the accused person is not guilty by reason of mental illness. This is a third category of available verdict in addition to verdicts of "guilty" or "not guilty". The legal consequences which follow a special verdict "are quite different from those which follow a plain verdict of not guilty on the ground that [Mr Hindmarsh] did not do the things charged" (The King v Porter [1933] HCA 1; 55 CLR 182 at 185).
10. If I return a special verdict, I am empowered to order that Mr Hindmarsh be detained "in such place and in such manner" as I think fit "until released by due process of law" (s 39 of the Act). I am not authorised to release Mr Hindmarsh into the community unless I am satisfied that his safety, or the safety of any member of the public will not be seriously endangered by his release (s 39). A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal, which will review his case and make orders for his continued detention, care and appropriate treatment. The Tribunal may not release Mr Hindmarsh unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The Tribunal will be bound to review Mr Hindmarsh's case, at least every six months. Importantly, in this case, whilst under its supervision, the Tribunal may make orders for Mr Hindmarsh's continued detention, care or treatment in a hospital or prison.
11. I emphasise that the return of a special verdict will not mean that Mr Hindmarsh has not perpetrated what is the greatest wrong that may be committed according to the ordinary standards adopted by reasonable people; rather the law does not attribute criminal responsibility to him for it by reason only of his mental illness.
12. Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility. As Dixon J (as the Chief Justice then was) pointed out as long ago as 1933 (in Porter at 187): … a great number of [the] people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their disposition and peculiarly tempered…. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. His Honour went on to point out: (The criminal law) attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like.
13. As I say, the standard of proof is less exacting, but, in a given case, the necessary elements of the defence may not be easily satisfied. The legal requirements of the defence have been established since 1843 (R v McNaughten (1843) 8 ER 718) in the following terms: … to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong. It is necessary for me to focus on that short period of time during which Mr Hindmarsh attacked and killed Mr Gumley. Even so, his past and subsequent medical history relevantly shed light on his condition at the time.
14. Dr Allnutt and Dr Furst are in complete agreement in their expert reports. The evidence is unanimous that Mr Hindmarsh, at the time he killed Mr Gumley, was suffering from a disease of the mind, namely paranoid schizophrenia (Dr Allnut's report, page 10; Dr Hurst's report, page 12). Both experts considered, adapting the language of Dixon J (Porter at 189 - 190), that he maintained the capacity to know the nature and quality of his actions. However, due to the psychotic symptoms of his particular disease of the mind, Mr Hindmarsh was not able to distinguish between reality and his hallucinations, (Dr Allnut's report, page 10; Dr Hurst's report, page 12). In the words of Dr Allnut: 'He was compromised significantly in his ability to reason about the wrongfulness of his actions with a moderate degree of sense of composure as a person of normal mind would'
15. As can be seen, the psychiatric evidence, in terms of the opinion of each expert on the facts as agreed upon by the parties, favours me finding the mental illness defence has been established. As I have said, the Crown does not argue otherwise.
16. However, I bear in mind that the value of expert opinions is very much dependent upon whether the facts assumed for the purpose of expressing the opinion are sufficiently like the facts as I find them to be. I am not obliged to accept the opinion of any expert. I may reject the evidence, especially where the facts upon which the opinion is based do not accord with the facts as I find them to be.
17. It is very important to bear in mind that the expert evidence is unchallenged by either party. Notwithstanding this, and the parties' agreement, it is for me to decide whether I am actually satisfied on the balance of probabilities that Mr Hindmarsh has made out the mental illness defence.
18. In undertaking the review of the evidence I will bear in mind that if it is shown that the two doctors not only come to the same conclusion, but provide like reasons for it which "clearly lead to that conclusion … the right decision … must be that the defence has been made out" (R v Jenkins (1963) 64 SR (NSW) 20 at 31 by Walsh J).
19. Before proceeding further, I record that if I am not satisfied that the mental illness defence has been made out, it will be necessary to go on to consider the question of whether Mr Hindmarsh intended to kill Mr Gumley when he attacked him. The answer to that question will be informed by his mental illness, even if it does not rise to such a level as to support the mental illness defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental illness supports the partial defence of substantial impairment provided by s 23A Crimes Act 1900 (NSW) reducing murder to manslaughter.

Issue 1 - Voluntary Act

1. I am satisfied beyond reasonable doubt that the acts of strangulating and effecting blunt force head and neck trauma on Mr Gumley were deliberate acts by Mr Hindmarsh, and that that act caused Mr Gumley's death.
2. At the time of the incident, Mr Gumley and Mr Hindmarsh shared a room at the Elouera West Mental health Unit at Shellharbour Hospital. By the 31st July 2014, he had been an involuntary patient at that facility for 11 months. He had been diagnosed with chronic schizophrenia, chronic alcoholism and had significant cognitive deficits. Because of his illness he was non-compliant with the treatment prescribed, especially, refusing to take his oral medication.
3. The agreed statement of facts sets out clearly the facts surrounding the incident in question, as set out above in paragraphs 7-17.
4. The autopsy report prepared by Dr Szentmarlay, as stated in the agreed statement of facts, ' concluded that the cause of death was the combined effects of strangulation and blunt force head and neck injuries' (at para 21).
5. The facts founding my finding of deliberate act are the relative ferocity of the attack involving a number of blows, attempted strangulation, then further blows when Mr Hindmarsh perceived Mr Gumley was still breathing, and the account he subsequently gave that at the time of his attack he "heard" what he believed to be the voice of the devil commanding him to "kill".

Issue 2 - Mr Hindmarsh's history of mental illness

1. As I have already commented Mr Hindmarsh undoubtedly suffers from paranoid schizophrenia. The question is whether when he attacked Mr Gumley, his condition gave rise to such a defect of reason that he did not know what he was doing was wrong. It remains relevant to consider the nature of the history of his condition.
2. It was agreed by the parties that Mr Hindmarsh has a history of mental illness, dating back to his first diagnosis with schizophrenia in 2004, and having been admitting on multiple occasions in the years since then. This history is detailed in the expert reports (Dr Furst, p 3; Dr Allnut p 2) and need not be further recoumted. At the time of the alleged offence, Mr Hindmarsh was on a prescription of Risperidone Consta, Clozapine and Olanzapine. Mr Hindmarsh had been refusing to take oral antipsychotic medication in the weeks leading up to the alleged offence, and Clopixol Decanoate injections were being administered on a fortnightly basis (Dr Allnut, p 3).

The expert evidence

1. The reliability of the expert psychiatric evidence depends in part upon the validity of the assumptions they have made about Mr Hindmarsh's medical history, and the reliability of the accounts he gave them. In this case the facts assumed by the experts were supported by clinical records of the institutions where Mr Hindmarsh had received treatment since 2004 and the opinions of the psychiatrists who had treated him there. The accuracy of the histories is agreed by counsel.
2. Whilst at the police station, Mr Hindmarsh consented to forensic procedures, namely a buccal swab, photographs and swabbing. As he was completely entitled to do, he declined to participate in an electronically recorded interview. I draw no inference from Mr Hindmarsh exercising his right to silence. However, he voluntarily provided an account of the events surrounding the alleged offence to the expert witnesses, Dr Allnut and Dr Furst . As he has not given evidence, it is appropriate that I warn, or caution, myself that hearsay evidence is often unreliable perhaps especially when it consists of out of court statements by a person accused of a serious crime, who may therefore have a motive for proffering self-serving statements of an exculpatory type. That Mr Hindmarsh cannot be cross-examined on them affects the weight which might be accorded them. Nonetheless the statements made are admissible because they are the foundation, or part of the foundation, of the opinions expressed by Drs Allnutt and Furst. Being admissible for that purpose, I am entitled to rely upon them, if I am otherwise persuaded as to their reliability, as evidence of the truth as an exception to the hearsay rule under s 60 Evidence Act 1995 (NSW).
3. Whilst I am not bound to accept these out of court statements, as they are consistent with accounts he has given to Justice Health psychiatrists, and the experts regard what Mr Hindmarsh told them as consistent with his disease, especially given his resistance to treatment, I am satisfied that his account is probably reliable and should be accepted.
4. Mr Hindmarsh told Dr Allnut that he had been unable to sleep. While lying in bed awake, he began to hear voices saying 'Kill, kill, kill'', which he took to be the voice of the 'devil'. He further told Dr Allnut that he thought at the time that he was the character of Jack from the movie, 'The Shining'. Mr Hindmarsh said, "There's this little boy who writes REDRUM on the wall, which is "murder" backwards. I thought that I was taught by the devil to kill someone, so I snapped. I picked up his electric guitar. He was asleep, facing the wall on his side, and I just hit him about three times on the back of the head and then I looked at him. It looked like he was still breathing. I got guitar wire and wrapped it round his neck and made it tight. He was still breathing. I hit him two or three more time on the head and then covered him with a blanket. It looked like he has stopped breathing' (Dr Allnut's report, page 3). Substantially the same account was given to Dr Furst (page 4), and to Dr Henderson of Justice Health on 14th October 2014 (Dr Furst page10).
5. It is not without significance that upon being taken into custody Mr Hindmarsh was admitted into the Mental Health Screening Unit at Silverwater Metropolitan Remand and Reception Centre ("MRRC") on 4 August 2014. He was transferred to Hamden two months later, a step-down mental health pod at the MRRC. Throughout his time at the MRRC he has been under the care of Justice Health with a diagnosis of schizophrenia and under treatment by appropriate anti-psychotic medications.
6. Dr Furst examined Mr Hindmarsh on 11 March 2015 at the Metropolitan Remand and Reception Centre at Silverwater. Dr Furst carefully detailed the full mental health history of Mr Hindmarsh dating back to 2004. A feature of his past illness was episodic aggression and threatened self-harm when Mr Hindmarsh was unwell or untreated. This had been manifested in one attempted strangulation and other assaults. He concluded that the main psychotic symptoms of Mr Hindmarsh are paranoid delusions and auditory hallucination, which Mr Hindmarsh referred to as 'the voice of the devil' (Dr Furst report, p 3). Dr Furst refers to the long period of involuntary admission of Mr Hindmarsh, recording his feelings of frustration and negative symptoms of schizophrenia. At the time, Mr Hindmarsh was prescribed Risperidone Consta, Clozapine and Olanzapine. Clopixol Decanoate injections were given on a fortnightly basis because Mr Hindmarsh had been refusing to take oral antipsychotic medication in the weeks leading up to the alleged offence (p 3). His condition was symptomatically worsened by bouts of abuse of various substances.
7. Dr Furst made a diagnosis of chronic and treatment resistant schizophrenia with a co-morbidity of substance abuse disorder. He said that schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, marked instability and bizarre behaviour as a consequence of the illness (Dr Furst report page 10) he said that non-compliance with medication and the co-morbid substance abuse are frequently problems for managing the condition. He concluded that Mr Hindmarsh was mentally ill when he attacked Mr Gumley by virtue "of his chronic treatment resistant schizophrenia" (Dr Furst report page 11). This condition is a disease of the mind. Mr Hindmarsh's account of his mental processes leading up to the attack on Mr Gumley demonstrates delusional thinking and auditory hallucinations. If accepted, and I accept the account, these matters constitute a defect of reason. Dr Furst said ( Dr Furst report page 12): He was probably also unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure owing to his impoverished thinking, negative symptoms of schizophrenia and apparent cognitive defects from his schizophrenia and previous alcohol abuse.
8. Dr Allnutt substantially agrees. In his report dated 20th August 2015, he recorded a history of the occurrence in all material respects identical to that received by Dr Furst ( Dr Allnutt report page 3). He too reviewed the clinical evidence concerning Mr Hindmarsh's previous psychiatric history expressing conclusions similar to Dr Furst. He made a diagnosis of "paranoid schizophrenia, characterised by hallucinations of a command nature in the form of auditory hallucinations" (report page 9). He was not persuaded that there was clear evidence of delusional content, but considered his presentation "was probably one of thought disorder and thought blocking".
9. Dr Allnut concluded (report page10): Based on his account as provided to me, at the material time of the alleged offence the defendant was manifesting symptoms consistent with a "disease of the mind", that is thought disorder and auditory hallucinations derived from an underlying condition of schizophrenia. The "disease of the mind", impaired his reasoning capacity because it was psychotic and he was unable to distinguish reality from his delusional and auditory perceptual beliefs, and would not have been able to think in a logical manner about his circumstances. In my view he maintained capacity "to know the nature and quality of this actions". However he was compromised significantly in his ability to reason about the wrongfulness of his actions with a moderate degree of sense of composure as a person of normal mind would, that is there was a religious entity which was urging him to act in a particular manner and he was incapable of reasoning about this because of his thought process problems.
10. Dr Allnut said that he was fairly confident about his opinion. The degree of diffidence implied by that expression was founded on the absence from the material he received of the Justice Health documentation regarding Mr Hindmarsh's condition since he was taken into custody for this matter. Dr Furst, as I have said, reviewed that material and having considered his summary of it, I am persuaded that had it been given to Dr Allnut, he would have expressed his views in even firmer language.

Determination

1. This body of evidence, including the opinion of the experts actually persuades me on the balance of probabilities that, at the time he attacked and killed Mr Gumley, Mr Hindmarsh was suffering from a severe case of paranoid schizophrenia. This is undoubtedly a disease of the mind as the Crown and defence agree.
2. On the evidence of the experts, in particular Dr Furst, I accept that the account given by Mr Hindmarsh of his perceptions when he attacked Mr Gumley he was then labouring under a delusional belief system which was symptomatic of his paranoid schizophrenia. I am satisfied when he killed Mr Gumley, Mr Hindmarsh suffered from a disease of the mind giving rise to a defect of reason such that he did not know that what he was doing was wrong according to the accepted standards of ordinary members of the community. I find this because I am satisfied that his condition then was such as left him unable to reason about his actions and beliefs with even a moderate degree of sense and composure.
3. It follows from this finding that I will return a special verdict that Paul Hindmarsh is not guilty of the murder of Joseph Gumley by reason of mental illness. This conclusion makes it unnecessary to consider the issue of intent or the alternative defence of substantial impairment.
4. As I said at the outset, a special verdict is not the same as a verdict of not guilty. Mr Hindmarsh may not walk free from this court. It is apparent to me from the evidence I have received that his particular disease is a serious illness which is likely to remain resistant to treatment.
5. In these circumstances there is not the slightest question of it being appropriate to release Mr Hindmarsh into the community at this time. I am not satisfied that he does not present a danger to himself or to others. Accordingly the effect of my verdict will be that Mr Hindmarsh will be committed to the long-term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, the Tribunal may not release Mr Hindmarsh into the community unless and until it is satisfied that he will not seriously endanger any person including himself.

Orders

1. My orders are: 1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness; 2. Under s 39 of the Act, Paul Hindmarsh is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law; 3. I direct the Registrar to notify the Minister for Health of these orders; 4. I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the exhibits.

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: 22 February 2016