R v JH

PARTIES : Regina JH

COUNSEL : Mr C Maxwell QC (Regina) Mr P Winch (Accused)

SOLICITORS : Solicitor for Public Prosecutions Legal Aid

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

JUDGMENT 1 HIS HONOUR: The accused is a young person charged with the murder of his father, Mr John McCann at Schofields on 30 December 2007. The death occurred when the accused was just short of his 15th birthday.

2 A question arose as to the accused's fitness to be tried. A hearing in relation to this issue was held before Buddin J in 2009. On 16 June 2009 his Honour delivered judgment in which he found on the balance of probabilities that the accused was unfit to be tried: R v JH [2009] NSWSC 551. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (the Act) his Honour referred the accused to the Mental Health Review Tribunal (the Tribunal).

3 Forensic reviews were carried out by the Tribunal on 20 August 2009 and 11 February 2010. Reports of the Tribunal of 23 September 2009 and 17 February 2010 are before me. The Tribunal found that the accused would not become fit to be tried during the period of 12 months after the finding of unfitness. On 5 November 2009 the Director of Public Prosecutions notified the Court that further proceedings would be taken in respect of the offence. As a consequence the matter has been listed for special hearing before me pursuant to s 19 of the Act.

4 The purpose of a special hearing is to ensure that, despite the accused's unfitness to be tried, he is acquitted unless it can be proved beyond reasonable doubt that on the limited evidence available he committed the offence charged (s 19(2)). The hearing has been conducted as nearly as possible as if it were a trial of criminal proceedings (s 21(1)). The accused has been legally represented (s 21(2)).

5 At the commencement of the hearing he was arraigned upon an indictment containing the single charge of murder. He did not enter a plea but was taken to have pleaded not guilty (s 21(3)(a)). He has raised a defence that could properly have been raised at an ordinary trial of criminal proceedings (s 21(3)(c)). Although he had a right to give evidence he equally has a right not to and he has availed himself of the latter (s 21(3)(d)).

6 The hearing has been before me without a jury. That is now the default position provided by s 21A of the Act. No election was made by either party for there to be a jury. The verdicts available to me are the verdicts that would have been available to a jury, if there was one, and my verdict will have, for all purposes, the same effects as a verdict of a jury (s 21B(1)). The available verdicts are: (a) not guilty of the offence charged; (b) not guilty on the ground of mental illness; (c) that on the limited evidence available, the accused committed the offence charged; and (d) that on the limited evidence available, the accused committed an offence available as an alternative to the offence charged (s 22(1)).

7 In this case there has been no suggestion that I should consider finding that the accused committed the alternative offence of manslaughter.

8 If I am to return a verdict of not guilty on the ground of mental illness, the only realistic outcome is that the accused will be detained as a forensic patient and not released until such time as the Tribunal is satisfied of certain matters, including, and most importantly, that the safety any member of the public will not be seriously endangered by his release (s 43(a)).

9 It is necessary that I formally record some legal principles to which I must have regard: s 21B(2) of the Act (see also Fleming v R [1998] HCA 68; 197 CLR 250).

10 The Crown bears the onus of proving beyond reasonable doubt that it was an act of the accused that caused the death of Mr McCann and that it was accompanied by an intention to kill him, an intention to inflict grievous bodily harm upon him, or a reckless indifference to human life. In the circumstances in which Mr McCann's death occurred, it has not been disputed that it was accompanied by an intention to kill.

11 The accused did not give evidence. He was quite entitled not to. His silence is not evidence against him and nor does it constitute any sort of admission by him. Similarly, his silence may not be used to fill any gaps in the evidence tendered by the prosecution. It cannot assist one iota in the assessment of whether the prosecution has proved its case. See Azzopardi v R [2001] HCA 25; 205 CLR 50 per Gaudron, Gummow, Kirby and Hayne JJ at [67].

12 The defence case concedes that I would find that the accused committed the act causing death and that it was accompanied by the necessary intention. However it is contended that I would be satisfied that the accused was mentally ill at the relevant time and so I should return the special verdict provided by s 38 of the Act, that he is not guilty by reason of mental illness. This requires a consideration as to whether, at the time of the killing, the accused was labouring under 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 that if he did know, that he did not know what he was doing was wrong: R v M'Naghten (1843) 8 ER 718; R v Porter [1933] HCA 1; 55 CLR 182. The onus of proof in respect of this issue is upon the accused and the standard of proof is the balance of probabilities: Mizzi v The Queen [1960] HCA 77; 105 CLR 659; R v Ayoub [1984] 2 NSWLR 511. 13 It is the second leg of the test in M'Naghten that is in issue in this case, that is whether the accused did not know what he was doing was wrong. It is not to the point whether he knew what he was doing was legally wrong. Regina v Cheatham [2000] NSWCCA 282.

14 The Crown concedes that I would return the verdict for which the defence contends.

15 Despite the defence conceding that the Crown has proved its case beyond reasonable doubt and the Crown conceding that the defence has made out its case on the balance of probabilities, they are both matters that I must be satisfied of for myself.

16 Tendered before me by consent was a large folder of documentary material that comprises the Crown case directed towards establishing that the accused committed the offence with which he has been charged. The material is consistent with that which was before Buddin J and so I may gratefully draw upon the summary provided in his Honour's judgment with some additional material interpolated: [7] It would appear that the relationship between the accused's parents broke down in about 1996, when the accused was about 3. From then on the accused lived with his mother. Over the years that followed there were a number of proceedings in the Family Court in which the deceased sought access to the accused. …

[8] Some months before the fatal incident the accused and the deceased (sic - his mother), who were at that stage living in Maitland, discussed the possibility of killing the deceased. At that time the deceased was residing in the Sydney suburb of Schofields. On about 21 December 2007 the accused's mother went to the Kmart store in Maitland and purchased an axe which she then hid in a cupboard at her home. She and the accused then had further discussions about going to the deceased's house in order to kill him. Their plan was to kill him and then burn down his house in order to destroy any physical evidence that may have remained.

[9] On the morning of 29 December 2007 the deceased and the accused's mother spoke on the phone. Arrangements were made for the accused and his mother to travel to Schofields in order to collect a parrot that the deceased no longer wanted. Following that conversation the accused and his mother again discussed killing the deceased. To that end a number of items were obtained including a box of latex gloves, two kitchen knives, the axe (which had been wrapped in a plastic bag), a packet of matches, a packet of Panadeine Forte, a number of Avial capsules and a length of rope.

[10] Some time after noon that day, the accused and his mother travelled by public transport to Schofields. They arrived there between about 8 pm and 9 pm. Upon their arrival they were greeted by the deceased and invited into the house.

[11] The accused's mother and the deceased had a conversation whilst the accused went into a backroom and watched television. During the course of the evening the accused's mother offered to make a cup of tea for the deceased. In fact she placed the tablets, which she had brought with her, into warm water and dissolved them. She then placed the contents into a glass of orange juice which she offered to the deceased. The deceased took only one sip of the juice before telling the accused's mother that it tasted bitter.

[12] In due course the deceased said that he felt tired. He then went to bed and fell asleep. The accused and his mother watched television before they too fell asleep.

[13] At about 2.35 the following morning (December 30), the accused and his mother awoke. The accused's mother removed the box of latex gloves from the bag which she had brought with her. She and the accused then each placed a pair of gloves on their hands. She handed the axe to the accused and also removed from the bag a kitchen knife which she retained for herself.

[14] The accused and his mother then went to the deceased's bedroom. The accused placed a pillow over a small night-light which illuminated the hallway. The accused and his mother then swapped weapons so that the accused then had the knife. Both of them then proceeded to attack the deceased with those weapons. The accused's mother struck a number of blows which inflicted large wounds to the deceased's chest and upper torso area. The accused also stabbed the deceased a number of times in the upper chest.

[15] The blows caused the deceased to wake up. He pushed the accused's mother away from him as he attempted to run from the scene. That prompted the accused to again stab the deceased in the region of his upper torso. The deceased was nevertheless able to wrestle the axe from the accused's mother but by this time he was bleeding profusely. He managed however to get to the front door of the house where he called for help.

[16] The deceased then turned towards the accused and his mother. He proceeded to abuse them whilst still holding the axe. [The accused stabbed him twice more]. The accused and his mother then ran into the deceased's bedroom and attempted to lock the door. The accused and his mother made good their escape from the house through the window in the toilet area.

[17] In due course the deceased collapsed to the floor near the front door of his house and died. The cause of death was a stab wound [caused by a long-bladed knife] to his right thigh which had penetrated the femoral artery. The deceased had also sustained a number of other injuries but none of them apparently were fatal. Meanwhile the accused and his mother made their way back to Maitland again using public transport.

[18] Upon their return to Maitland, the accused and his mother told a number of witnesses that they had assaulted the deceased with an axe. On 3 January 2008 the accused and his mother attended a real estate agency in Maitland. She handed in the keys to her house having decided that she could not return there. She told the real estate agent about the events which had taken place in the house in Schofields. As a result of that conversation, the real estate agent drew to the attention of the accused's mother a newspaper article on the internet which reported that the deceased had died as a result of the injuries which had been inflicted upon him.

[19] At about 1.15 that afternoon police from Maitland detectives arrested the accused and his mother as they left the real estate agency. They were taken into custody and transported to Maitland Police Station.

[20] The accused was interviewed in the presence of a support person. … During the course of that interview he made admissions concerning his role in causing the death of his father. He told police that his purpose in travelling to Schofields was to kill his father whom he hated. He explained his feelings towards his father in some detail. He said that the various pieces of equipment that they had taken with them was for the purpose of killing him. The medication which they had with them was to enable them to drug the deceased so that they could then kill him before destroying the house by fire. …

17 Some aspects of the police interview with the accused warrant further elaboration.

18 The accused said that at some stage shortly before the killing his mother said that she did not want to do it and proposed that they leave and go home but that he had said, "if you really loved me you would" (Q167). At a later stage of the interview the accused said that in response to his mother's statement that she did not want to kill the deceased he said, "but if you don't he'll ruin my life forever, there's no point in doing anything or getting a job or anything" (Q380). I take this to be a reference to the accused having recently left school at the age of 14 years 9 months and wanting to obtain employment.

19 The accused was asked about the purpose of bringing rope and he said, "we were, were gunna tie him up, but he was still alive when we went out of there and um it didn't quite work out the plan and we were, tie him up and burn the house with him in it" (Q213).

20 There was obviously quite a deal of thought put into the plan to kill the deceased. Apart from the acquisition of various items to take to the deceased's home for the purpose, it also included the accused bringing black clothing to change into. He chose to wear black so that blood would not show up (Q225). The accused also said that gloves were worn so that fingerprints would not be left (Q424). At this point the accused was also asked about the plan to set fire to the house: Q OK. Were you going to burn the house down before or after you killed your father? A After.

Q After. And why were you going to do that? A So then no one would know who did it.

Q OK. What um, why didn't you want anybody to know who did it? A Because I didn't want to get into trouble." (Q847 - 849).

21 The accused claimed that he did not stab the deceased very hard because he was "too scared": Q Why were you scared? A Because it's a horrible thing to do. I was just scared to even stab him, because I've never done that to anyone, ever, and I never would do that to anyone at all.

Q Why do you think it's a horrible thing to do? A I just think it is.

Q Why did you decide to do it this time? A Because I hated all the bad things he's done to me and other people and he would've just ruined my life and there would've been no point in doing anything with him around. (Q664 - 666)

22 The accused claimed that he would never do the same thing to anyone else but that, in a sense, he was justified in killing his father: Q Mmm. You said the words, I never would do that --- A To anyone.

Q --- to anyone else at all? A That's right. I wouldn't want to harm anyone else.

Q OK. Why is that? A Because there is no one else horrible. I don't know any other horrible people.

Q If you --- A And even if I came across one I wouldn't do anything to them.

Q Why not? A Because I wouldn't want to do it again.

Q How come? A I just, 'cause I wouldn't hate anyone else as much as I hated him.

Q And can you tell me how wrong killing someone is? A Well, I reckon it's wrong to kill someone when there's no reason and they're innocent people.

Q Uh-huh. A But if it's someone who's real bad and they've done lots of bad things to people and they've been real violent, I think it's right. (Q898-903; Q915-916)

23 The accused said that when they left the house he did not realise that his father would die. He saw that he was bleeding but expected that he would somehow get to the phone, call triple 0 and receive treatment that would save his life. He did not find out that his father had died until earlier on the day of his arrest, 3 January 2008. He was asked how he felt when he found out that his father had died and he said, "well, I thought, at least he won't be able to do anything to me" (Q925). He reiterated that he could not believe that his father had died, "because he was fine when we left" (Q926). However he also confirmed that his intention when he went to Schofields was, "to kill him" (Q927).

24 At the end of the interview the accused was asked whether there was anything else that he wished to say and he responded: A Well, I don't want to end up in gaol, 'cause I don't think I've done a bad thing.

Q You don't think you've done a bad thing? A That's right. I just want to be happy, that's all.

Q And do you think that you are happier now than you were before? A Yes. I don't feel miserable any more.

Q And what has made you happy? A That he's no longer in my life.

Q And why is he no longer in your life? A Because he's not alive. (Q1033-1037)

25 The foregoing evidence, which I accept, clearly establishes beyond reasonable doubt that it was an act of the accused (and his mother) that caused the death of the deceased and at the time the accused had an intention to kill.

26 Tendered before me is a folder of reports by Dr Stephen Allnutt, forensic psychiatrist, Dr Olav Nielssen, psychiatrist, Dr Kenneth Nunn, the accused's current treating child and adolescent psychiatrist, and the Mental Health Review Tribunal. The overwhelming conclusion from the reports is that the accused was mentally ill at the time of the killing of his father.

27 Dr Allnutt described the accused as manifesting delusional beliefs that his father had abused him from a young age; his father had an intention to murder him; his father had raped his mother; and that his father had attempted to poison him for most of his life. Dr Allnutt reported that the accused related these beliefs with a significant degree of conviction. Similar delusional beliefs were related by the accused to other report writers.

28 There is no clear evidence that the accused was in fact exposed to physical abuse at the hands of his father. I note that his parents separated when he was only 3 years of age and that from that time onwards he lived with his mother. His mother had custody of him and it would seem there were continual disputes involving the Family Court in relation to the deceased having access. It would seem from the material before me that the accused's mother was resistant to her former partner having access. It also seems likely that this was a cause of her denigration of the deceased in the eyes of the accused and that this substantially contributed to his beliefs. I am not satisfied that there was substance to any of those beliefs. They were clearly delusional.

29 Grove J found the accused's mother not guilty of murder but guilty of manslaughter following a judge alone trial: R v Hevesi-Nagy [2009] NSWSC 755. He did so on the basis that she had a substantial impairment of her capacity for self-control. He specifically found that the impairment did not extend to her capacity to understand events or to distinguish right from wrong. It is useful to note the following in his Honour's judgment on passing sentence (R v Hevesi-Nagy [2009] NSWSC 956) in relation to the interaction between the accused and his mother and the influence that she had over his delusional beliefs concerning his father: [16] As I understood Dr Wilcox's evidence the diagnosed disorder, manifest in your harbouring of persecutory delusions, may have coordinated with some of those harboured by your mentally ill son. In the judgment on the indictment I mentioned the likely recognition by John McCann of the need of the boy for special care. It has been more than unfortunate, indeed I would say disastrous, that you developed what psychiatrists labelled an enmeshed relationship. Your obvious obsession with excluding his father from normal relationship and your seeking to inspire and encourage an unjustified and misguided hatred in the child are background circumstances which do not operate to mitigate your culpability.

30 One of the features of the relationship of the accused and his mother was one of relative social isolation. Statements from teachers at the high school that the accused had been attending up until a few months before the death of his father indicate that the accused had few friends at school and none outside of school. He did not interact well with other students and was the victim of bullying. Observations made by those witnesses and others in the material tendered by the Crown, and in the various psychiatric reports, indicate that the accused relied heavily upon his mother and deferred to her to an inordinate degree.

31 Dr Allnutt reported that the various beliefs that the accused harboured in relation to his father were compounded by the influence of his mother, and in the absence of any significant others to challenge them, significantly influenced his thinking process to the extent that he maintained them with a degree of conviction. As a result, Dr Allnutt was of the opinion that at the time of the alleged offence the accused "manifested persecutory delusions that related to his father, auditory hallucinations and ideas of external control such as receiving telepathic messages from other people". Thus Dr Allnutt was of the view that the accused was suffering from a psychosis. He added: In addition to this the defendant was of a young and vulnerable age, immature and was intellectually impaired, and would be regarded by most psychiatrists as meeting the legal definition of having a "disease of the mind".

32 Dr Allnutt advised that psychosis is a mental illness which impacts upon an individual's capacity to make a rational interpretation of their environment and upon a persons capacity to appreciate that they have lost that capacity. He stated that it is a condition that affects reasoning capacity and so at the time of the alleged offence, as a consequence of this disease of the mind, the accused manifested a defect of reason. He added that, "intellectual impairment, immaturity and his social circumstances would only serve to compound these difficulties".

33 Dr Allnutt did not, however, believe that the accused's defect of reason was of a nature and severity that impacted upon his capacity to know the nature and quality of his actions. However he was also of the view that the accused's capacity to understand the wrongfulness of his actions was significantly impaired. Dr Allnutt's report of 23 April 2009 concludes as follows: I do not believe that, given his intellectual impairment, psychosis and immaturity (age) at the material time of the alleged offence, that he would have been capable of reasoning about the wrongfulness of his actions with a moderate degree of sense and composure and thus he would have available to him a defence of mental illness.

34 The earlier report of Dr Olav Nielssen of 19 September 2008 includes a history he obtained from the accused similar to that which appears in other reports. Dr Nielssen made the diagnosis of chronic schizophrenia and subnormal intelligence. I note that in the first report of Dr Allnutt of 1 March 2009 he indicated a diagnosis of chronic psychotic disorder with a differential diagnosis including schizophrenia, schizoaffective disorder with shared delusions. Returning to Dr Nielssen's report his conclusions included: I believe that [JH] has the defence of mental illness available to him. He has an early onset schizophrenic illness that has resulted in a defect of reason in the form (of) impairment in intellectual function and a shared delusional belief about his father. His immature emotional development and low intelligence, and the influence of his mother with whom it appears he shared a delusional belief regarding his father prevented him from realising that his actions in killing his father were morally wrong.

35 Dr Nunn has been the accused's treating child and adolescent psychiatrist since the age of 15 (he is now aged 17 years 4 months). He has provided a number of reports. One prepared for the purpose of the proceedings before Buddin J on 29 April 2009 addresses the issue of whether the mental illness defence is available in these terms: All three psychiatrists involved (Drs Allnutt, Nielssen and Nunn) share the view that [the accused] is mentally ill, that his illness is that of a chronic psychosis viz, schizophrenia, that the world view and ideation associated with this illness was intimately connected with and ultimately causal to the acts allegedly committed. I am therefore of the view that this young man, a young boy at the time of the alleged offence, has (a) psychiatric basis for a defence of not guilty by reason of mental illness.

36 There is material in the police interview with the accused that indicates that he was aware of the wrongfulness of killing another human being. However, it also demonstrates that he saw a distinction in relation to the killing of his father (See Q898-903 and Q915-916 extracted above). It would seem that he thought killing somebody who he perceived to be a bad person was in someway justifiable and thus not morally wrong. In my view this further confirms the conclusion reached by the psychiatrists that the delusional beliefs that the accused had about his father prevented him from appreciating the moral wrongfulness of his conduct.

37 The psychiatric evidence points overwhelmingly and unanimously in one direction. I am satisfied on the balance of probabilities that whilst the accused knew the quality and the nature of his acts which brought about the death of his father, he was labouring under such a defect of reason, from a disease of the mind as not to know that what he was doing was wrong.

38 I find the accused to be not guilty on the ground of mental illness.

39 Section 39 of the Act provides for various consequential orders that may, or must, be made upon the return of such a verdict. In this case there is no question of considering the release of JH, unconditionally or subject to conditions. There is no dispute between the parties that it is appropriate that an order be made that he be further detained until released by due process of law and that is what I propose to do. The only other matter to consider is where and in what manner he should be detained. 40 I have a further report from Dr Kenneth Nunn of 23 February 2010. JH was transferred to the Bronte Adolescent Forensic Intensive Care Unit at the Forensic Hospital at Long Bay in January this year. Dr Nunn's report is very lengthy and, I might say, very helpful. In short, JH appears to be responding to the treatment he is receiving and is making progress. 41 Dr Nunn notes that JH's "capacity to further respond to treatment is significant but contingent on a steady social integration and mental health supervision and treatment". He indicates that a request had been made to the Tribunal to approve JH receiving ongoing care in the Forensic Hospital "for the next six month". I note in the 17 February 2010 report concerning the second forensic review by the Tribunal that a decision was made pursuant to ss 46 and 47 of the Act that "the current arrangements for [JH]'s care, treatment and detention as a forensic patient at the Forensic Hospital should continue to apply". 42 It appears to me to be appropriate that the order that I should make is that JH be held there or at such other place as the Tribunal may determine.

43 I make the following orders: 1 JH be detained at the Bronte Adolescent Forensic Intensive Care Unit at the Forensic Hospital at Long Bay or at such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.

2 The Registrar is to notify the Minister of Health of order 1 as soon as practicable.

3 The Registrar is to notify the Mental Health Review Tribunal of order 1 as soon as practicable and provide to the Tribunal the following documentation:

(a) a copy of these reasons for verdict and orders, and

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