R v McDermott [2003] ACTSC 1

"... that on 23 February 2002 at Canberra aforesaid [he] did intentionally inflict grievous bodily harm upon Ryan David Scott."

2. On 16 October 2002 the accused was arraigned on the first count. No plea was sought on the second. To that first count the accused pleaded not guilty by reason of mental impairment. The prosecution agreed to the entry of such a verdict. I have to decide if such a course is appropriate.

3. The facts alleged were not disputed, either by the prosecution or the defence. Those facts were described by police as follows:

"Circumstances:

It is alleged that about 10.30pm on Saturday 23 February 2002 at 20 Moulder Court Charnwood ACT, the defendant now before the court Paul McDermott went to his sons (sic) bedroom which at the time was occupied by his 10 year old son and the victim an 11 year old friend.

It is alleged that whilst in the bedroom the defendant armed with a knife went to the victim who was laying in a sleeping bag. The defendant then stabbed the victim in the back of his neck causing a penetrating wound at the base of the skull.

The defendant has then struck the victim on the right hand as the victim tried to defend himself. The defendants son witnessed the assault. He saw blood coming from the victims neck and ran from the room screaming. The defendants wife went to the room and located the victim on the floor bleeding. The defendant was also present. The defendants wife saw that the victim had blood on his hands and began to assist the victim from the room whilst directing her son, eight year old daughter and her daughters friend to leave the house.

The victim was taken outside and emergency services were called. The victim was also moved further from the defendants home due to fears of further attacks.

The victim was treated at the scene by ACT Ambulance members and conveyed to Canberra Hospital. After receiving treatment at Canberra Hospital, the victim has stated to police that his friends father stabbed him and that his hand was injured whilst trying to defend himself.

On police attendance, the defendant remained inside the premises. After some negotiation with police, the defendant surrendered himself.

Statements were obtained from the defendants 10 year old son and the defendants wife.

The defendants wife stated that the defendant had a history of psychiatric illness and that he had been under increased pressure due to neighbourhood problems. In the days prior to the assault the defendants behaviour had been irrational. The defendant had accused his wife of trying to poison him and had called the police to inform them. The defendant also believed that someone was trying to kill him as well as other fixations.

The defendants son stated that the victim was staying at his house for a `sleep over' after they had spent all day together playing at the defendants house. They were both in bed when the defendants son saw the defendant enter his room carrying a knife in his right hand. The knife was long with a black handle and a sharp end. The defendant told his son to close his eyes and to lie down and go to sleep. He described the defendant as looking weird with his bottom lip shivering and the hand holding the knife shaking.

The defendants son saw the defendant lean over the victim and appear to hug him. The defendant then put his left hand on the victims chest and his right hand near the victims neck. He held his hand near the victims neck for a few seconds and when he took his hand away, his son saw that he was holding the same knife as before.

The defendants son then saw the victim fall out of bed and a large quantity of blood run down the victims chest. The victim has run from the house before apparently fainting on the front lawn. The defendants son has then called `000' before handing the telephone to his mother.

Following his apprehension, the defendant was conveyed to City Police Station where he was examined by the Commonwealth Medical Officer and deemed fit for interview. Mental Health Crisis Team were also called, however no assessment was able to be conducted. The defendant later agreed to participate in a taped record of interview. During that interview, the defendant stated that when he entered his sons room, he intended to kill the victim and his son. He then intended to kill his daughter and her friend who was also sleeping over. The defendant stated that he wanted to kill all the children because he believed that if he killed them quickly, it would be better than being tortured and crucified by the Rebels.

During the interview, the defendant made constant reference to voices from telepathic Rebel bikies and other people who continually told him what to do. He believed that they were going to come to the house to kill himself and the four children at dawn.

The defendant stated that sometime prior to the attack, he went to the kitchen and removed a knife from the drawer. He then sharpened the point of the knife with a steel in order to make it more effective. He further stated that he stabbed the victim in the base of the neck because that was the quickest way to reach someones cortex and kill them. He stated that he was a bit nervous and `got it wrong' because he did not push the knife in hard enough.

The defendant stated that the victim got up and ran away after being stabbed. The defendant stated that he followed the victim outside with the knife to kill him, however when he saw the victim collapse, he went back inside the house.

The defendant acknowledged that it was against the law to hurt or try to kill people however he believed that `some laws were made to be broken'. The defendant showed no remorse for his actions and stated that he was still of the belief that it was necessary to kill the other children to prevent them from being crucified by the Rebels. The defendant stated that had he been successful in killing the victim, he would have gone on to kill the other three children.

It is the opinion of investigating police that during the interview the defendant continually switched from fact to fiction. He stated that he had been diagnosed with schizophrenia however he did not believe that he suffered from this illness. He stated that he was not taking any medication or seeing any doctors. He was polite and cooperative throughout."

4. For the purposes of these proceedings, I accept those alleged facts as proved.

5. The accused had, by order dated 2 May 2002, been required to submit to an assessment to determine his fitness to plead.

6. On 1 August 2002, it was determined by the Mental Health Tribunal (the Tribunal) that the accused was fit to plead.

7. He was, however, found to be suffering from mental illness which, untreated, posed a threat of serious harm to himself or others. An involuntary psychiatric treatment order was made by the Tribunal on 26 September 2002.

8. He remains subject to that order. A question has now arisen as to whether, in the circumstances, the accused, at the time of the events referred to in the indictment, suffered from mental impairment so as to be entitled to acquittal on the grounds of that mental impairment. At common law that issue would be determined by a jury applying the M'Naghten Rules (M'Naghten's Case [1843] EngR 875; (1843) 10 Cl & F 200; 8 ER 718).

9. The matter is now governed by s 320 Crimes Act 1900 (ACT) (the Act). That provides:

"(1) An accused is entitled to be acquitted of an indictable offence on the grounds of mental impairment if it is established on the balance of probabilities that, at the time of the alleged offence, the accused was, as a result of mental dysfunction or mental illness -

(a) incapable of knowing what he or she was doing; or

(b) incapable of understanding that what he or she was doing was wrong."

10. The application before me invokes the provisions of s 321 of the Act. That provides:

"If an accused pleads not guilty by reason of mental impairment, the Supreme Court shall enter a verdict of not guilty on that ground with respect to the offence charged if -

(a) the court considers the verdict appropriate; and

(b) the prosecution agrees to the entering of the verdict."

11. The prosecution agrees to the entering of such a verdict. It is, therefore, necessary for me to determine whether such a verdict is "appropriate". That, in turn involves an examination of the evidence concerning the mental illness from which it appears that the accused suffers and the effect that it had on his criminal responsibility for his acts at the time of the events referred to in the indictment.

12. Even before he was administered the usual caution, in his record of interview with Detective Constable Anita van Hilst and Senior Constable Mick Horan, the accused said at A5:

"Yep. I planned on killing all the children - everyone in that house, except um ..."

Q68: "Okay. All right, Paul, I'll just go back to the allegation, and that's that you stabbed Ryan Scott earlier this evening."

A: "I did. I planned on killing all the children."

Q69: "What can you tell me about tonight, how did it come about?"

A: "I was under - on a record of death sentence, and they were going to kill me, and they were going to kill, um, my son, and I think it maybe was because we are the powerful psychics and I'm looking at you now, and there are telepathic people inside the planet that can see you too."

A: "I was just - I was under death sentence if I left the house apparently."

A: "There were bikies down the road and they got me if I left the house and stuff like that."

Q91: "Did you go out at all today? Did you leave the house?"

A: "And I've - and the Reb's are dogs. Like at one stage I had the washing machine up against the doors and stuff like that ..."

A: "... but um, basically, the rule is that they decided to come - and it's real bad torture - the day they decide to come and get you, if you don't go out and cop it sweet, and let them do what they want to you ..."

A: "... they're going to butcher the other people."

Q310: "Do you - Paul do you understand that it's against the law to kill somebody?"

Q311: "That you're breaking the law by doing that, do you understand?"

A: "Oh, definitely breaking the law by doing that."

Q312: "And you understand that you have broken the law by hurting Ryan tonight?"

A: "But sometimes laws are made to be broken, if the alternative's ... (indistinct) ... That's my opinion."

13. Generally, the accused's responses were those reflecting a disordered and delusional mind. The accused in his mind was threatened by "the Rebels" who were about to commit rape, torture and murder upon all the inhabitants of the house. To save the children from this it was necessary, in his mind, to kill them quickly and humanely.

14. He was assessed on 25 June 2002 by Dr William Lucas, psychiatrist. This was to assess the accused's fitness to plead.

15. Dr Lucas took a history, the salient part of which was -

"He believed that he was going to be killed by bikies and he responded to beliefs or thoughts that he had to go to the end of the road where he would be bashed and possibly killed. He believed his children would be tortured and killed."

16. By the time he was interviewed his condition had improved with treatment. Dr Lucas considered he was then fit to plead.

17. On 30 July 2002, a further report was prepared by Dr Lucas. It included the following history:

"He believed that it was best to kill the children before they were tortured and killed."

"I asked if when he decided to kill the children, beginning with Ryan Scott, he thought it was wrong. He replied, `No!, right, to stop being tortured.' I asked if he had thought that it was against the law and he said that obviously he knew that now but at the time it `didn't figure into it'. He knew the children were going to be killed, so was he, so `it didn't compute into it'."

18. In a later session, Dr Lucas returned to this issue:

"... on 23 July 2002 I asked again about his appreciation of the wrongness of his act ... He had thought about the wrongness but he was terrified all the time. Although he definitely thought it was wrong, it was the `lesser of two evils'. He said that at the time he was `not same, not me' ... it was `just the lesser of two evils, torture in the morning, torture and dying slowly'."

"Although at the time [of the stabbing] he was capable of knowing what he was doing I believe that he was incapable of understanding that what he was doing was wrong. He had an awareness of the wrongness of his act but because of his mental illness (a disease of the mind), paranoid schizophrenia, was unable to reason about this with a moderate degree of sense and composure. His mental state was severely disturbed, predominantly by strong delusional beliefs, auditory hallucinations and disturbed thought processes."

20. The record of interview and the above reports are entirely consistent with the police statement of facts.

21. In the delusionary framework within which the accused found himself he believed he was under imminent threat of death to be preceded by torture. He believed the children in the house would be similarly dealt with. It was thus necessary to his disordered mind to kill them painlessly to avoid them suffering. He acknowledged that his intended acts were legally wrong. He, however, considered it to be the right thing to do in the circumstances as the lesser of the two evils that faced him.

22. In R v Porter [1933] HCA 1; (1936) 55 CLR 182, Dixon J, conducting a trial on indictment for murder in the original jurisdiction of the High Court of Australia, directed a Canberra jury on the issue of insanity at common law. There was no issue but that the accused knew the nature and quality of the act he had committed. Turning to the second limb of the insanity test, his Honour said, at 189-90:

"The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act ... If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know what he was doing was wrong. What is meant by `wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people ... [If you find that] he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty ...."

23. At 190, his Honour posed the question for the jury as being, whether, at the time of his wrongful act:

" ... he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness."

24. The accused was acquitted by reason of insanity.

25. In R v Windle [1952] 2 QB 826 the Court of Criminal Appeal (UK) held that to establish a defence of insanity at common law it must be shown that the accused did not know that what he was doing was contrary to law. That view was rejected by the High Court of Australia in Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358.

26. In R v Balaban (1953) SASR 282 at 288, a Full Court of the Supreme Court of South Australia (Napier CJ, Ligertwood and Ross JJ), expressed the result of Stapleton (supra) as requiring that:

"... if the trial Judge sees fit to explain to the jury the sense in which he is using the word `wrong', the direction cannot stand if it leaves them to understand that the defence must prove that the prisoner did not know that his act was contrary to law."

27. It seems to me unlikely that s 320 (supra) was intended to do otherwise than restate the Porter test in more contemporary language.

28. I am fortified in that conclusion by the more recent decision of Sperling J in R v Jones (NSW Supreme Court) (13 May 1996, unreported) (at 4-5). The test required by the Crimes Act 1900 (NSW), albeit criticised by his Honour, asked whether the accused, by reason of his mental illness lacked the capacity to reason calmly about the wrongfulness of his act. At issue was the accused's capacity to appreciate "wrongfulness".

29. In this case the accused's attempt to kill was prompted by that which, in his delusional state, he considered to be a moral dilemma. Should he prevent suffering and inevitable death by intervening to painlessly kill those about to be so dealt with?

30. The legitimacy of such reasoning is not self-evidently contrary to ordinary moral standards.

31. Was Abraham wrong to obey God and prepare to kill his only son Isaac as a sacrifice (Genesis 22: 1-12)?

32. Of course, the accused did not reason calmly or logically about the moral dilemma he faced. Indeed, it seems to me that by reason of his mental illness he was unable to reason calmly about the moral quality of what he was doing. As a result, he did not know that what he was doing was morally wrong.

33. It follows that, in my view, it is appropriate to enter a verdict of not guilty of attempted murder by reason of mental impairment.

34. I will hear the parties as to consequential orders.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Solicitor for the Crown: Director of Public Prosecutions