R v Jennings

CATCHWORDS : Criminal Practice & Procedure - Judge Alone trial - mental illness defence - alternative of substantial impairment by abnormality of mind - compliction of drugs taken before stabbing.

Crimes Act 1900 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1990

M'Naghten (1833) 10 Cl and Fin 200 [8ER 718] CASES CITED : R v Ayoub (1984) 2 NSWLR 511

P K Lynch (Crown) P M Winch (Acc) COUNSEL :

K Calder - DPP (Crown) SOLICITORS : McGowan Lawyers (Acc)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 KIRBY J: Trent Jennings stands charged with the murder of Giuseppe Vitale on 30 December 2003 at Narwee. Having had advice from Counsel, and with the consent of the Crown, Mr Jennings has elected to be tried by a Judge sitting without a jury. 2 When the accused was arraigned, he pleaded not guilty to murder, but guilty of manslaughter. His Counsel identified the basis of that plea. Medical evidence would be called in his case that, at the time of inflicting a single stab wound upon Mr Vitale, the accused was substantially impaired by an abnormality of mind (s23A Crimes Act 1900). 3 The Crown declined to accept that plea. It, too, foreshadowed medical evidence in the Crown case. A forensic psychiatrist, Dr Westmore, would give evidence that, at the time of fatally wounding Mr Vitale, the accused was suffering from mental illness, such that he was not responsible in law for his actions. According to the Crown, the appropriate verdict was not guilty of murder on the grounds of mental illness. 4 The matter has therefore proceeded as an investigation into the state of mind of Mr Jennings. There was no dispute as to the way in which Mr Vitale met his death, nor that the fatal injury was inflicted by the accused. 5 Let me first describe the circumstances leading to Mr Vitale's death.

The incident. 6 Trent Jennings was born on 14 February 1985. At the time of these events he was approaching his nineteenth birthday. He worked as a casual waiter in a city hotel. He lived at Nirimba Avenue, Narwee. He was homosexual. 7 On 30 December 2003, Mr Jennings spent much of his day on a computer. The computer had software which permitted access to a gay chat room. The chat room allowed contact between individuals who had logged onto the same site. Once contact had been made, a dialogue could take place by each typing messages to the other. 8 By this means, Mr Jennings made contact with Giuseppe Vitale on the evening of 30 December 2003. They were strangers to each other. They exchanged information and made arrangements to meet. Each knew the other was homosexual. Both were interested in some form of sexual encounter, although not necessarily sexual intercourse. They discussed what was to happen once they met. Each had an interest in being tied up whilst the other engaged in some form of sexual foreplay. 9 The deceased was a man aged 32 years. At 9.15 pm he sent a photograph of himself, which Mr Jennings then downloaded. They exchanged phone numbers. At 9.35 pm Mr Vitale telephoned Mr Jennings on his mobile phone and spoke for 2 minutes and 33 seconds. Mr Vitale then drove to Narwee. A second call was made at 10.20 pm, lasting 1 minute and 32 seconds, perhaps as he approached Narwee. 10 At some point after 10.20 pm, Mr Vitale came to Mr Jennings' home. Mr Jennings got into his car. He was carrying a backpack. Within the backpack he had condoms and lubricant. He also had a length of rope which he had purchased from Woolworths some months before. He had used it in previous sexual encounters. He also brought with him a small bottle of amyl nitrate which is used to heighten sexual pleasure. Finally, he included a knife. It had a black handle with a stainless steel blade measuring 11 centimetres. The blade had a serrated edge. It was the sort of knife that you would see in many kitchens. Mr Jennings would later tell psychiatrists that he had been carrying a knife since leaving Perth, a number of months before. When interviewed by the police, Mr Jennings explained why he took the knife on this evening: (Exhibit C2, Q399) "A. Just for my own safety if anything happened, like, got out of control ... I used to always ... when I was in the city, just going ... by myself ... just to ... stuff in there ..." Q400. OK. So the knife, the knife you're saying you have with you for your protection? A. Yeah." 11 Mr Vitale drove to a reserve which was close by. He did so, no doubt, at the direction of Mr Jennings who was familiar with the reserve. It was dark. They obviously wanted privacy. The reserve was deserted. They talked for a time and then walked along a footpath that crossed the reserve from east to west. About 70 metres from the road, they came to a small bridge. It was about one metre wide with a metal railing on either side. It crossed a creek bed, which was a few feet below. At that time, the creek bed was more or less dry. 12 Once at the bridge, the accused and Mr Vitale stopped. The four lengths of rope were tied together and then used by Mr Vitale to bind the feet and hands of the accused, the hands being tied behind his back. At the same time he was tied to the bridge. Mr Vitale then performed oral sex upon the accused. 13 Thereafter their roles were reversed. The accused was untied and the rope was used to tie the hands and feet of Mr Vitale, again with his hands being tied behind his back. However, Mr Vitale was not tied to the railing of the bridge. He stood in the creek bed with Mr Jennings somewhat higher. 14 What then happened is not entirely certain. Whatever happened, it is plain that the victim was utterly blameless, being later found bound hand and foot with his hands tied behind his back, as I have described. Whatever happened culminated in Mr Jennings reaching into his backpack and taking out the knife, which he then used to inflict a single stab wound to the side of Mr Vitale's neck. The knife penetrated about 8 cms, unfortunately injuring both the left external carotid artery and the left internal jugular vein. The result was massive bleeding. 15 When interviewed by the police on 5 February 2004, Mr Jennings said that once he had tied Mr Vitale up "he was doing stuff to him", that is, oral sex (Exhibit C2, Q153). However, he was not tied "that tight" (Q156). Mr Jennings said this: (Q158) "A. ... and then he ended up, like, he had me and he was trying to, like, get down me and, like, trying to, like, stuff with me, and I was just, like, freaking out and things like that." 16 Later, Mr Jennings said this: (Q189) "A. Like, he was trying to get me like grabbing and spinning me and stuff like that." 17 He then added: "Q198. What happened then, so when he's, he's tried to turn you around, you've said? A. He was trying to, like, grab me and, like, grabbing my arms and stuff like that. Q199. Mmm. A. And I was just trying to get away, and then he wouldn't stop, and then I picked up, my bag was in my knife, my knife was in my bag ... Q200 Mmm. A. ... and I just, like, went like that to him. And then he stopped and I just threw the knife and I just ran away." 18 As Mr Jennings gave that answer, he motioned with his hand that he swung the knife in a circular fashion. He said he threw the knife away. He then picked up his bag and ran, returning to the apartment. The police later determined that he had again logged onto the Internet at 11.42 pm. 19 Meanwhile, Mr Vitale struggled to get from the bridge to the road adjacent to the reserve. He was still bound hand and foot and was bleeding profusely. Having reached a suburban street alongside the reserve, he went to the front door of a home, seeking help. He yelled out. Although the house was apparently unoccupied, others within the neighbourhood heard his cries. An ambulance and the police were summoned and various people came to his assistance. By that time, however, Mr Vitale could hardly speak and ultimately collapsed. The police arrived at 11.45 pm and the ambulance soon thereafter. First aid was given and efforts were made to revive him. Ultimately, however, he lapsed into unconsciousness and died. The post mortem conducted the next day determined that the cause of death was a single stab wound to the side of the neck and a loss of blood. 20 The police began their investigation immediately. They followed the blood trail through the park to the bridge. They located the knife and other items which had been discarded, including unopened condom packets and the bottle of amyl nitrate. A crime scene was established and the area guarded until daylight. The debris of the previous evening, including the knife, was then gathered. It was sent to the Institute of Chemical Pathology for examination. A fingerprint examination was made in the vicinity of the bridge and in respect of other items which had been collected. 21 Quite apart from admissions made by the accused when interviewed by the police, his involvement was established beyond any doubt through forensic evidence assembled as a result of the police investigation. Within the console of the vehicle driven by the deceased there was a note. It had obviously been written during the dialogue with Mr Jennings in the chat room, or during their later phone conversations. It recorded a name sometimes used by Mr Jennings (Nathan) and his mobile telephone number. The phone records in respect of the mobile telephone of the deceased, and that of the accused, showed the two telephone calls to which reference has been made, at 9.35 pm and 10.20 pm that evening. The rope used to bind the hands and feet of Mr Vitale was tested for DNA. The DNA profile was then compared to that of Mr Jennings. There was a match, in circumstances where that profile could be expected to occur in fewer than one in ten billion people. A further section of the same rope was later found in of Mr Jennings' flat. 22 The laboratory attempted to obtain a DNA profile from the handle of the knife, but was unsuccessful. Nonetheless, the blood on the blade of the knife was shown to be that of the deceased. The fingerprints of Mr Jennings were found, both inside the vehicle owned by the deceased and on the railing of the bridge.

Drugs taken by Mr Jennings. 23 There was a further aspect of the Crown case. In January 2004, Mr Jennings was arrested in respect of an unrelated matter. It arose from his time in Perth before he came to Sydney, when he stole a car to drive to Sydney. Whilst in custody, he was interviewed by the police on 5 February 2004 in relation to the murder of Giuseppe Vitale. He was again interviewed on 19 February 2004, when the police took him to the reserve at Narwee. With his consent, they conducted what is termed a walk-through. That is, Mr Jennings and the police retraced his steps along the path of the reserve to the bridge, the police asking questions as they did so. Ultimately, Mr Jennings became distressed and the interview was suspended. When it was apparent that he was in no fit state to continue, the interview concluded. However, before that occurred, and whilst standing at the bridge, Mr Jennings disclosed his drug taking at the time of the stabbing in the following exchange with Det Snr Const Johnston: (Exhibit D2) "Q77 OK. You, now you talk of this bridge, are you having a few problems remembering? A. Yeah, it looks different. Q78 Is there any other reason why you are having problems remembering? A. My memory lately is, I've been forgetting a number of things. Q79 OK. Is there any reason for that? A. I just ... test done, I'm seeing a psych, I was going to see him today, regarding bi-polar and a few mental conditions. Q80 Bi-polar disorder? A. Yeah, from like drugs and that. Q81 OK. When you mention drugs, what do you mean by that? A. I was using drugs before I went inside. Q82 OK. What sort of drugs were you using? A. Speed, ice, eccies, ... Q83 How often would you use drugs? A. Pretty, pretty regularly. Q84 OK. And what quantity would you take them? A. It varied. Just, it varied from time to time. Some days go out, some days I'd be on drugs for whole week, so, like coupla times a day, sometimes ... " 24 Before dealing with medical evidence, I should say something about the law's approach to mental illness and the partial defence of substantial impairment by abnormality of mind.

Mental illness and the law. 25 The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial. 26 The defence of mental illness arises where the accused satisfies the Court, as a matter of probability, that, at the time of committing the act, he comes within what is known as the M'Naghten rule ((1833) 10 Cl and Fin 200 [8ER 718]). The McNaghten rule has two limbs. The accused must demonstrate either that he was labouring under such a defect of reason, from a disease of the mind, that he did not know the nature and quality of his act or, alternatively, if he did know, then he did not know that what he was doing was wrong. The first limb, in lay terms, requires that the accused did not know what he was doing, whereas the second deals with his appreciation of the morality of what he was doing, that is, whether it was right or wrong. 27 Here, Mr Jennings told the police that he knew that when he wielded the knife he was attempting to stab the victim. And, of course, he did stab the victim. The issue, therefore, is whether, as a matter of probability, he did not appreciate that what he was doing was morally wrong, and that because of mental illness which deprived him of the ability to reason and form judgments. Where the defence is made out, the appropriate verdict is "not guilty by reason of mental illness" (s38 Mental Health (Criminal Procedure) Act 1990) ("the Act"). The person, however, is not then released. In accordance with s39 of the Act, a person, the subject of such a verdict, is detained "in such place and in such manner as the Court thinks fit until released by due process of law". A person subject to an order made under s39 becomes a forensic patient under the jurisdiction and supervision of the Mental Health Review Tribunal, which makes recommendations to the Minister (Mental Health Act 1990, s81). 28 Where, as here, the issue of M'Naghten mental illness is raised, whether by the Crown or the accused, or, indeed, by the Judge, the onus rests upon the accused to prove that defence on the balance of probabilities (R v Ayoub (1984) 2 NSWLR 511 at 515). The Court is then obliged to resolve that issue before addressing the availability of the partial defence of substantial impairment. 29 Turning, then, to the partial defence, were the Court to find that the impairment suffered by the accused through mental illness was not total, but was nonetheless substantial, the partial defence of substantial impairment by reason of abnormality of mind may then be available. What, then, are the elements of that defence? The accused must prove, again as a matter of probability, the following:

1. That, at the time he stabbed Giuseppe Vitale, his capacity to understand events, or 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; and

2. That such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. 30 There will be an abnormality of mind, for the purposes of this defence, where an accused's capacity to understand events or judge whether his actions were right or wrong or control himself, deviates from what may be regarded as normal, given that there is variation in the different ways in which people function. However, the abnormality of mind must arise from an underlying mental or physiological condition. It is not enough if the accused's inability is merely transitory, although it does not have to be a permanent condition. 31 I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory. 32 On the other hand, as explained by the medical evidence given in this case, drugs or alcohol may, in certain individuals, trigger an abnormality of mind, that is, bring about some physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment may, in that circumstance, be open, or indeed, the M'Naghten defence may be available if the impairment were total. 33 There is a further alternative. According to the medical evidence, it has some relevance to Mr Jennings. A person may, by reason of an abnormality of mind (that is a pre-existing psychiatric condition), resort to drugs and/or alcohol to deal with the discomfort caused by symptoms arising from that condition. The drugs or alcohol, once taken, may add to the impairment already suffered by that person. Should that happen, the M'Naghten defence, or the partial defence of substantial impairment, may be available to that person. 34 Let me then turn to the medical evidence.

Medical evidence. 35 Three experienced forensic psychiatrists were called to give evidence, Dr Westmore, on behalf of the Crown, and Drs Allnutt and Giuffrida, in the case for the accused. Each had reviewed the evidence in the Crown case, including the records of interview conducted by the police with the accused. Each had also seen Mr Jennings at some length. Each had access to the reports prepared by his colleagues; so that each was in a position, when giving evidence, to comment upon the views expressed by the other practitioners. 36 The history provided by Mr Jennings to Dr Westmore was similar to that given to Drs Allnutt and Giuffrida. Mr Jennings told Dr Westmore the following: "... He told me the victim then tied him up with a rope. Mr Jennings said he had taken the rope with him. He said he and the victim had previously discussed this and it had been decided that he would take the rope with him. He said the victim commenced performing oral sex on him. He stated, 'I started getting all freaked out, I heard some foot steps. I looked up and in the bushes there was a man and a wolf telling me to be careful, he might get you. I felt frightened and paranoid. I asked him (victim) to stop so I could collect myself.' He continued stating, 'Then we talked for a bit because I had to calm myself down. I had to ask him to untie me before we talked. Then I tied him up after I collected myself and I started doing oral on him and he started doing oral on me. Then I heard the voices again, "I'm going to get you, I'm going to rape you." I felt him grabbing at me.' He said, 'I went down and picked up my knife and I stabbed him and everything went all blank. I dropped the knife, picked up my stuff and run back to the unit.' In response to a question from me he told me his unit was about two hundred metres away. I then asked him more about the reported voices. He said the voices were male and at first they were internal but then 'I thought it was coming from the visions I was seeing. It seemed like he was saying he was going to rape and bash me when he was grabbing at me.'" 37 Mr Jennings said that he had similar visions in the past. They had included a black man with a green outline, which he saw in circumstances where he would hear footsteps and would peak around corners. Dr Westmore noted that the history given to Dr Allnutt included an account of auditory hallucinations. 38 The account provided by Mr Jennings of his drug taking was again similar in the case of each doctor. He told Dr Westmore that on the evening he met Mr Vitale, he had taken three or four ecstasy tablets between 30 and 60 minutes beforehand, as well as "an eight ball" of amphetamines intravenously at about the same time. 39 Before moving to the diagnoses provided by each doctor, I should deal with one issue which arises in every psychiatric case. Diagnosis is, to a greater or lesser degree, dependent upon the history provided by the patient. It is therefore obviously important that the patient provides a truthful and accurate history. Doctors ordinarily look for corroboration of the history, or aspects of it. Here, there was no corroboration in the form of complaints to others of the visual and auditory hallucinations reported by Mr Jennings to each doctor. Mr Jennings provided the following explanation to Dr Westmore: (Exhibit H1, p10) "He said he did not speak to others about these experiences because he did not want to be placed into a mental institution." 40 Nor did Mr Jennings disclose to the police the matters which he later related to the doctors. Yet each doctor said that he accepted that the symptoms as reported by Mr Jennings were genuine. A number of reasons were provided. First, the descriptions of symptoms given to each doctor were consistent, even though their examinations were spread over a number of months. Dr Giuffrida said that he would not have expected a person who was feigning mental illness to be able to reproduce that level of detail with such consistency. 41 Secondly, the symptoms as described by Mr Jennings, were very typical. Dr Westmore, for instance, said that he would not have expected a person who was not mentally ill to be able to describe the constellation of symptoms in the terms chosen by Mr Jennings, even if he had attempted to familiarise himself with various forms of mental illness. 42 Thirdly, each doctor said that it was not uncommon for a person suffering from mental illness not to discuss their symptoms, especially when questioned by the police. They may not do so, either through embarrassment, or because of anxiety associated with their condition. They may not feel comfortable discussing such issues with persons who are not treating them, or at least persons who were not doctors. 43 Each doctor who examined Mr Jennings is, as I have said, an experienced forensic psychiatrist. Each made the clinical judgment that the symptoms Mr Jennings reported were genuine. I accept that evidence. Whilst there were differences between each doctor as to the diagnosis of Mr Jennings' condition, there was also broad agreement on many issues. Dr Westmore believed Mr Jennings was suffering from a schizophrenic illness which had been precipitated and/or aggravated by his excessive use of illicit drugs. He considered, as an alternative diagnosis, a drug induced psychosis. Dr Giuffrida, on the other hand, diagnosed a drug induced psychosis, believing that there was insufficient evidence of deterioration in cognitive social and other aspects of personality to diagnose schizophrenia. 44 Dr Giuffrida, however, acknowledged, as indeed did Dr Allnutt, who's views I will deal with shortly, the force of Dr Westmore's argument which relied upon two matters. The first was that the symptoms of visual and auditory hallucinations had persisted after arrest and were still present in April this year, that is, some fourteen or fifteen months after the incident, and after the cessation of drugs. If the psychosis of Mr Jennings were entirely drug related, you would not have expected symptoms to persist for that long. Secondly, the symptoms of auditory and visual hallucinations had abated, when appropriately treated with anti-psychotic medication, but had returned when that medication was reduced. Again, that suggested an underlying condition. 45 Both Dr Westmore and Dr Giuffrida reached the view that Mr Jennings met the requirements of the M'Naghten test for mental illness. Dr Westmore, in his first report, said this: (Exhibit H1) "I believe that Mr Jennings was on the balance of probability suffering from an acute psychotic illness at the time the homicide occurred. My preferred diagnosis is that he suffers from a paranoid schizophrenic illness and that that illness was either precipitated and or aggravated by his use of illicit drugs. I believe he suffered a disease of the mind, namely a schizophrenic illness which was present at the time of the homicide and which would have totally deprived him of his capacity to know that he ought not to do the act. It is likely that Mr Jennings would have understood that he would have got into trouble from a legal perspective because of his behaviour but at the time the incident occurred I think it is probable that he was acting under delusional beliefs in relation to the victim and that as a consequence he was totally deprived of his capacity to consider his behaviour with a moderate degree of calmness and rationality." 46 In his second report, Dr Westmore elaborated: (Exhibit H2) "I however think the preferred defence is that of mental illness. I believe he was suffering from a defect of reason caused by a disease of the mind which totally deprived him of the capacity to know, again in a moral sense, that what he did was wrong. He had a psychotic illness which was precipitated or aggravated by illicit drug use." 47 Dr Giuffrida reached the same view. In his report of 27 July 2005, he said this: (Exhibit 2, p2) "I am however in full agreement with Dr Westmore that Mr Jennings was suffering from a psychotic illness at the time of the offence which was characterised by florid auditory and visual hallucinations and the consequent delusional ideas that constituted a disease of mind giving rise to defect of reason such that Mr Jennings did not know that what he was doing was wrong." 48 Dr Allnutt, on the other hand, favoured a diagnosis of substance induced psychosis. He accepted that Mr Jennings was impaired by reason of "a disease of the mind". However, he did not believe he was so impaired as to lack insight into the wrongfulness of his actions. He readily acknowledged that the defence of substantial impairment by reason of abnormality of mind was open to him. 49 In cross examination, Dr Allnutt agreed that there was no bright line separating, on the one hand, someone who was mentally ill, according to the M'Naghten test, and someone who was substantially impaired. It was a spectrum. The views held by Drs Westmore and Giuffrida were, to use the words of Dr Allnutt, "in the same patch" as his own view. They differed only in their conclusion as to which side of the line was appropriate. The following exchange with the Crown encapsulated the difference in view: (T65/66) "Q. Doctor, do you accept that Mr Jennings had a genuine belief at the time he picked up that knife that this man represented some danger to him? A. Now that is a very good question. Yes. I think he did genuinely believe it at the time. He genuinely believed at the time that he was at risk from this person. Q. And that belief derived from his delusional thinking? A. That's correct. Q. And yet you say he still had the capacity to reason about the rightness and wrongness with a moderate degree of composure? A. That's where I - when you invoke Porter, that is where it becomes very difficult to make the distinction. What I am saying is had he stopped, had he stopped and thought, he probably would have - in my view he probably would have been able to work out that he was misinterpreting, but his anxiety was such that he didn't stop to think. And that then could very well be Porter. Q. But how can a man whose having acute delusional beliefs stop and think about them? A. Because as I said, they do it every day. They stop and think about all kinds of things." 50 However, with great respect to Dr Allnutt, I prefer the views of Drs Westmore and Giuffrida. I accept that it was probable that Mr Jennings, although understanding what he was doing, was so disabled by disease of the mind, that he did not know that what he was doing was wrong.

Verdict. 51 I therefore find Mr Jennings not guilty of murder by reason of mental illness.

Order. 52 In accordance with s39 of the Mental Health (Criminal Procedure) Act 1990, I order that Trent Jennings be detained in a hospital as a forensic patient at such place as may be determined by the Mental Health Review Tribunal, until released by due process of law.

11/08/2005 - spelling errors - Paragraph(s) paras 35 and 43 11/08/2005 - spelling - Paragraph(s) para 3

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