R v Matthew Whitton

District Court of NSW|2022-07-18|Before: Mr P

Solicitors: Ms C Vye (Crown) Mr P Morris (Accused) File Number(s): 2019/378132; 2019/378069

The Offences/Background

The Accused, Matthew Whitton, is charged with an offence that on 1 December 2020, at Moorebank, NSW, he did wound Roy Whitton with intent to murder him, being an offence pursuant to s 27 of the Crimes Act 1900 (Count 1).
In the alternative, the Accused is charged with an offence that he did wound Roy Whitton with intent to cause him grievous bodily harm being an offence pursuant to s 33(1)(a) of the Crimes Act 1900 (Count 2).
There was also a related charge of contravene the terms of an apprehended domestic violence order.
On 18 December 2020, the Accused was arraigned and entered pleas of not guilty to Count 1 and the alternative Count 2.
The Crown and Counsel for the Accused have agreed that the proposed evidence in the proceedings establishes a defence of mental health impairment. The question for the Court is whether, after considering that evidence, it is satisfied that the defence of mental health impairment is established for the purposes of s.31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act").

Relevant Statutory Provisions & Principles

Section 31 of the Act provides as follows: "31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established."
Section 28 of the Act provides for the defence of mental health impairment: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions."
The term "mental health impairment" is defined in s 4 of the Act: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder."

The s 31 Procedure

The appropriate procedure for the Court to follow when considering the application of s 31 of the Act was considered by Johnson J in R v Jackson [2021] NSWSC 1404 at [7]-[13]. It is helpful to set out his Honour's consideration of this issue: [7] A hearing under s.31 of the Act is not a trial. No trial date has been fixed. Accordingly, there is no need for the Accused to elect to be tried by Judge alone under s.132 Criminal Procedure Act 1986: R v Sands [2021] NSWSC 1325 at [3]. The s.31(c) procedure has been described as an "evidentiary inquiry": R v Gough [2021] NSWDC 180 at [13]. [8] If the Court is satisfied that the defence of mental health impairment is established for the purpose of s.31(c) of the Act, the Court is required to enter a special verdict under s.31 of "act proven but not criminally responsible". The Court must then consider what consequential orders should be made under ss.33 and 34 of the Act. [9] In the absence of s.31, a criminal trial would take place for the purpose of determining whether the defence of mental health impairment had been established. A criminal trial is conducted as adversarial litigation where an accusatorial process is involved, in which the prosecutor bears the onus of proving the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In this case, if the matter proceeded to trial, it would be for the Crown to prove that the Accused committed the act in question and the other elements of the crime of murder (apart from the question of intention) and it would be for the Accused to establish, on the balance of probabilities, the defence of mental health impairment under s.28(2) of the Act. [10] Section 31 is a statutory modification of these usual procedures and permits the Court to consider the agreed position of the parties without the need for a criminal trial. In R v Siemek (No. 1) [2021] NSWSC 1292, reference was made (at [19]) to the origin of s.31 as explained in the second reading speech: "In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 'aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found' (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added 'extra safeguards' in that 'the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established'. This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, 'People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences', 2013, paragraphs 3.159-3.160." [11] The operation of s.31 has been considered in cases which had been fixed for trial and where, following an election for Judge-alone trial, the trial proceeded but culminated in a special verdict by way of s.31: R v Tonga [2021] NSWSC 1064; R v Siemek (No. 1). In those cases some consideration was given to the interaction between s.31 of the Act and ss.132 and 133 Criminal Procedure Act 1986. [12] However, that analysis has no application to the present case where s.31 has been engaged before any trial date has been fixed, let alone any election for Judge-alone trial. [13] It remains the case, however, that the Court is required to provide reasons for a decision to return a special verdict under s.31. In R v Siemek (No. 1), the Court said in this respect at [21] and [22]: "21 However, the Court's decision fulfills another important purpose. It provides reasons for the verdict of the Court announced in open court on a serious charge where there is a strong public interest in the community understanding the basis upon which the verdict has been returned. The provision of reasons for a decision is an expression of the open justice principle. The importance of a public explanation for final decisions has long been recognised: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[58]. 22 In addition, where the Court returns a special verdict of act proven but not criminally responsible under s.31 MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s.33 in circumstances where the Court must refer an accused person to the Mental Health Review Tribunal under s.34 MHCIFP Act if such a special verdict has been returned. The reasons of the Court for reaching the verdict, and for making consequential orders, serve an important role in the discharge by the Mental Health Review Tribunal of its functions with respect to a person in relation to whom such a special verdict has been returned: cf Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 at [17] (concerning the giving of reasons where the parties signed consent orders in civil proceedings under rule 36.1A Uniform Civil Procedure Rules 2005)."

The Defence of Mental Health Impairment

With respect to medical evidence where a defence of mental health impairment is raised, the Court said in R v Siemek (No. 1) [2021] NSWSC 1292 at [91]-[92]: "91 Prior to the enactment of the MHCIFP Act, it had been said that, although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174; [1970] HCA 14), the need to establish the elements of the defence made the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160."

Evidence Received

The Court has before it, with the agreement of both the Crown and defence, a bundle of material (Exhibit 1) which contained a number of documents including: 1. a Statement of Agreed Facts; 2. statements of the complainant and other witnesses, being the Accused's grandparents (including the complainant/victim Roy Whitton); 3. the Accused's ERISP; 4. reports of Dr Richard Furst, forensic psychiatrist, who examined the Accused at the request of the legal representatives for the Accused dated 10 July 2021 and 25 September 2021; and 5. reports of Dr Adam Martin, who examined the Accused at the request of the Crown, forensic psychiatrist, dated 29 July 2021 and 28 November 2021.
Also included in Exhibit 1 were other medical, ambulance and police records relating to the Accused's admission to hospital on 1 December 2019, prior to the event the subject of this case.
It was this evidence which led to the parties' agreement required by s 31(a) that the defence of mental health impairment was made out. I note that the Accused is represented by Counsel and an instructing solicitor as required by s 31(b). In accordance with s 31(c) the Court, after considering the evidence, must be satisfied that the defence is so established.
I have received detailed written submissions from the Crown. Those submissions have, relevantly, been adopted by Counsel for the Accused in her written submissions.

Findings of Fact

I find the following facts which are taken from the Agreed Statement of Facts.
The Accused, Matthew Whitton, now 27 years old, is the grandson of the complainant Roy Whitton.
The complainant and his wife Marlene Whitton live at 27 Stockton Avenue, Moorebank. They are the Accused's grandparents They have cared for the Accused for most of his life. However, over the past years the Accused has experienced intermittent homelessness in the context of his mental illness and drug addiction.
On 3 November 2019, the Accused was charged with property damage following an incident at the complainant's home. An apprehended domestic violence order ("AVO") was put in place against the Accused, with the complainant nominated as the protected person.
On 1 December 2019, at about 2:40am the Accused called "000" complaining that he didn't "really know what's goin' on at the moment" and that he thought "he was having another psychotic episode".
Upon questioning by the 000 operator, the Accused denied having any violent thoughts and he denied having any weapons on him. He admitted to recent drug use.
He told the operator he would be waiting for them out the front of 27 Stockton Avenue, Moorebank. Police were dispatched to the Accused's location along with an ambulance.
Ambulance officers arrived at 2:48am and noted the following: C/T this 24YOM hearing voices, staged until police arrival. Pt outside relative's house, stated had ice tonight and has been hearing voices, multiple voices saying many things. Denies voice telling him to hurt himself or anybody else, however Pt has suicidal ideation all the time, but no plan. Pt always hear voices when smokes ice. Pt also not feeling well, refused any further assistance from paramedics. Police escort to hospital with nil incidents. Obs as stated.
SC Matthew Preston made the following observations of the Accused upon attending his location at 27 Stockton Avenue, Moorebank: The accused appeared drug affected and dazed. He was sitting down and appeared to be rocking back forwards and was fidgeting. He appeared to be looking down, was struggling to make eye contact and his speech was slurred.
The Accused's grandparents were unaware of his attendance at their address at this time.
The Accused was willingly escorted to Liverpool Hospital, arriving at 3:09am at which point he was handed into the care of the emergency department staff.
Records of the Accused attendance at Liverpool Hospital indicate that he was triaged at about 3:30am and at 4:46am his vital signs were taken. There are no records indicating that any psychiatric review took place. Sometime after 4:46am the Accused left the Liverpool Hospital.
The Accused returned to 27 Stockton Avenue, Moorebank and knocked on the back door at about 7:00am. In his possession, the Accused had a small paring knife that he had purchased the night before at 9:24pm on 30 November 2019 from Moorebank Woolworths.
The complainant opened the back door and asked the Accused what he was doing there. The Accused said he had come to "see Nan". He also apologised for smashing the windows.
The complainant left the Accused at the backdoor and went to the front bedroom where Ms Whitton was sleeping. The complainant woke Mrs Whitton up and told her the Accused was at the back door. The complainant sat in a chair next to the dining table. Mrs Whitton went to the backdoor and told the Accused she was going to call the police and that he had to leave.
The complainant told Mrs Whitton to make the Accused a cup of coffee and toast. Matthew Whitton opened the door and tried to enter the house but was told by the complainant that he wasn't allowed inside.
Mrs Whitton gave the Accused coffee and toast and went back into the kitchen to look for the number for Liverpool Police.
The Accused entered through the backdoor and walked to the kitchen. The complainant told him he wasn't allowed inside. The Accused said "I'm just putting my plates back in". He then put his plates on the kitchen bench and walked towards the complainant.
The Accused put his left hand out as if to shake the complainant's hand. He then moved his right hand from behind his back and the complainant saw he was holding a small paring knife. The complainant grabbed the Accused's right hand with his left hand and tried to push the knife away from him.
The Accused lunged towards the complainant about four times in an effort to stab the complainant. On at least one occasion he stabbed the complainant to the chest causing a wound.
The complainant fell to the ground and saw blood on his shirt. He told Mrs Whitton to call an ambulance. Mrs Whitton called Triple Zero.
The Accused said nothing and left the house with the knife in his possession. He walked north along Stockton Road. He discarded the knife on the nature strip outside 11 Stockton Avenue. He stopped at a bus stop on Newbridge Road, approximately 350 metres from the complainant's home. He was arrested, cautioned and taken to Liverpool Police Station.
He participated in an ERISP shortly after 11:30am. He told Police that he stabbed the complainant. He said he "just felt like stabbing" him and that when he did so, he was "obviously trying to kill him". He was asked "Do you feel like that schizophrenia is why you did this today or is there some other reason?" to which he answered, "I'm not sure, probably."
The complainant was taken to Campbelltown Hospital by ambulance and was treated. His injuries and treatment were noted as follows: 1. Penetrating injury (wound) to the right anterior chest wall in a paramediastinal (membranous partition between lungs) position approximately 15mm in length. 2. Right anterior chest wall haematoma and hemothorax (blood collected between chest wall and lung) with actively bleeding branch of the right internal mammary artery at the left of the sixth costochondral cartilage. 3. Selective antiogram (x-ray of heart) performed demonstrating a cut on the sixth intercostal branch of the right internal mammary artery with active bleeding. The branch was embolised (procedure blocking blood vessels) with microcoils occluding the branch. 4. The complainant spent one day in ICU and four days total in hospital.
From these facts, I am satisfied beyond reasonable doubt that the Accused performed the physical conduct giving rise to Count 1, namely the stabbing of the complainant with the paring knife resulting in the wounds described above.

Expert Evidence

Exhibit 1 contains, as observed above, reports from Dr Richard Furst and Dr Adam Martin.

Dr Furst

Dr Furst provided reports dated 10 July 2021 and 25 September 2021. In his first report, Dr Furst met with and assessed the Accused and considered the other material, including the Accused's medical records from Liverpool and Bankstown Hospitals as set out on p.2 of the report.
Dr Furst described in some detail the psychiatric history of the Accused who has a history of mental health problems dating back to when he was aged 19. That history included a significant number of presentations and admissions to Liverpool Hospital, Bankstown Hospital and other mental health treatment units. The records indicate that the Accused was first diagnosed with schizophrenia when he was 19. He received treatment for that condition including medication although there were periods on non-compliance by the Accused in taking that medication which exacerbated his condition.
Dr Furst concluded that the Accused clearly met the criteria for schizophrenia, but his treatment had been both sub optimal and inadequate since at least 2015-2016. The Accused also met the criteria for alcohol/substance abuse disorder (cannabis, methylamphetamines and alcohol).
Dr Furst opined that the Accused probably did have sufficient understanding of the charges he is facing, and the legal proceedings in respect of those charges, and thus was fit to be tried.
Dr Furst was also asked to provide an opinion on the question of whether or not a mental illness/mental impairment defence arose, namely, whether or not the Accused knew that the act of stabbing the complainant was wrong (that is, whether or the Accused could reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
Dr Furst concluded that it was more likely than not that the Accused was psychotic at the time he stabbed his grandfather. Overall, Dr Furst was of the opinion that it was more likely than not that the Accused's schizophrenic illness was not sufficiently controlled and that the symptoms of his illness prevented him from reasoning with a moderate degree of sense and composure about whether the offending against his grandfather, as perceived by reasonable people, was wrong.
In his second report dated 25 September 2021, Dr Furst was provided with additional material, including hospital records, notes from attending paramedics and police and police fact sheets surrounding the events of the morning of the stabbing. This material indicated that the Accused had presented himself to Liverpool Hospital about 3 1/2 hours prior to the stabbing enduring a psychotic episode. At that time, he was suffering from auditory hallucinations after having used ice that day.
Having regard to the additional material provided to him, and the professional observations contained in that material, Dr Furst was of the opinion that it was more likely than not that the Accused was in a psychotic state when he returned to his grandfather's house after he left the Liverpool Hospital and stabbed him. Dr Furst was of the opinion that the Accused's schizophrenic illness and signs of psychosis on the morning of the offence, especially the auditory hallucinations, made it more likely than not that the Accused did not know that the act of stabbing his grandfather was wrong because he could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong.

Dr Martin

In his first report dated 29 July 2021, Dr Martin had also reviewed information provided to him and had interviewed the Accused by audio-visual link. He recorded the psychiatric history of the Accused, including his diagnosis of schizophrenia. He also referred to the numerous admissions for the psychiatric treatment of the Accused and his history of alcohol use.
Dr Martin said that he had only had access to limited medical notes from Bankstown Hospital and the Liverpool mental health service, however, based upon what he had seen, and his interview with the Accused, he was suffering from a mental illness at the time of the alleged offence. He was of the opinion that whilst his fitness to stand trial may be significantly compromised, he was fit to be tried.
With respect to whether a mental health or cognitive impairment defence was available, after acknowledging this was a matter for the Court, based upon the limited material he had seen, Dr Martin opined that such a conclusion would be "somewhat speculative".
For his second report dated 28 November 2021, Dr Martin had been provided with additional material including medical records of the Accused. He also conducted a second interview with the Accused. His conclusion was that the Accused was fit for trial but that based upon the available information, it was highly likely that the offending conduct occurred in direct nexus to severe mental illness with distorted perception and thought as part of the Accused's psychotic condition. His opinion was that it is likely that the Accused will be seen to have a severe mental health impairment by virtue of having a chronic psychotic condition complicated by substance use.
He was of the opinion that the available information demonstrated that the Accused had an underlying vulnerability to psychosis. He said whilst it is likely the Accused would have known the nature and quality of his acts in stabbing his grandfather, his capacity to understand the wrongfulness of his actions would have been significantly compromised by his mental health impairment. He said the Accused would not have been able to reason with a moderate degree of sense and composure about the wrongfulness of his behaviour, as judged by a reasonable person. He opined that the Accused's behaviour is consistent with severe mental illness and, on balance, it would be reasonable for the Court to accept that he has the mental health impairment defence available to him.
It can be seen, therefore, that there is a consensus between the experts, that at the time of the offence, the Accused could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. As the Crown submits, whilst the Court is not bound by expert opinions, those opinions ought not to be rejected by the Court where no party has tendered evidence to cast doubt on those opinions: R v Brian Lee (No.2) [2019] NSWSC 586 at [69]; R v Osmond [2019] NSWSC 326 at [35]-[37].

Decision Concerning s 31 Elements

I have already found that the requirements of s 31(a) and (b) of the Act have been satisfied.
Having considered the factual material and the expert evidence placed before me, I am satisfied that at the time of the offence the Accused suffered from a mental health impairment and that this impairment meant that he could not reason with a moderate degree of sense and composure about whether the act of stabbing his grandfather, as perceived by reasonable people, was wrong. I am satisfied therefore on the balance of probabilities that the defence of mental health impairment is established.
As such, each of the elements of s.31 of the Act have been established and it is appropriate to return a special verdict in this case.

Consequential Orders

The written submissions provided by the Crown (at [48]) proposed orders that the Court should make in the event that the Court returned a special verdict. These orders were expressly adopted as appropriate by Counsel for the Accused. In my opinion, it is appropriate to make those orders. Having regard to the material I have seen with respect to the Accused's mental health condition, and the recommendations for treatment by the expert witnesses, it is not appropriate for the Accused to be released into the community. In those circumstances s.34 of the Act requires the Court to refer him to the Mental Health Review Tribunal.
I should add that because of the verdict and orders I will make with respect to Count 1, there is no need to consider the alternative Count 2. Additionally, I note that there is a related matter under s 166 of the Criminal Procedure Act 1986 (NSW) with respect to contravene AVO. Counsel for the Crown indicated that if the Court found a special verdict in respect to Count 1, that matter would be withdrawn.

Verdict & Orders

The verdict and orders the Court makes are: 1. Pursuant to s.31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 a special verdict of act proven but not criminally responsible is entered in respect of Count 1. 2. Pursuant to s.33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, Matthew Whitton is to be detained at a correctional facility or such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 3. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. 4. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation: 1. a copy of the Court's reasons for verdict and orders; and 2. a copy of the exhibits including the reports of Dr Adam Martin and Dr Richard Furst. 1. The Registrar is to notify Justice Health, as soon as practicable, of the verdict and orders in this matter and to provide Justice Health the following documentation: 1. a copy of the Court's reasons for verdict and orders; and 2. a copy of the reports of Dr Adam Martin and Dr Richard Furst.

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: 19 July 2022

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