R v McMahon

R v Meddings [1966] VR 306 Falconer v The Queen (1990) 171 CLR 30 CASES CITED: R v Welsh (1996) 90 A Crim R 364 R v Peterson [2000] NSWCCA 47 R v Derbin [2000] NSWCCA 361

PARTIES: NSW DPP Brendan Francis McMahon

COUNSEL: M Laffan (solicitor) Crown D Marr (appellant)

1 Throughout July and August of 2005 police investigated a very disturbing series of events. They, and RSPCA inspectors, became aware that someone was purchasing rabbits from pet stores and mutilating them in cruel and horrible ways. Whoever was doing this was then dumping the bodies in the vicinity of York Street in the city.

2 Their investigations revealed that the person who was doing these terrible things was the appellant, Brendan Francis McMahon. He was arrested by police and convicted by a magistrate of 18 counts of committing an act of aggravated cruelty upon an animal (section 6(1) Prevention of Cruelty to Animals Act 1979). He was also convicted of two counts of possessing a prohibited drug(section 10(1) Drug Misuse and Trafficking Act), some cannabis being found when police searched Mr McMahon's home and business premises as part of their investigations into the torture of the animals.

3 The appellant now appeals against those convictions to this Court. No submissions were made in relation to the drug matters and so I can put them to one side and focus instead on the appeal concerning the convictions for the aggravated cruelty matters.

4 It has never been disputed that Mr McMahon was the person who tortured the animals. The focus of submissions both in the Local Court and in this Court was on whether the accused had available to him the defence of mental illness. I will spend some time discussing the defence of mental illness generally before moving to consideration of its application to the present case.

5 It is a fundamental rule of the criminal law, and indeed a fundamental mark of a civilised society, that people are not punished for actions over which they have no control. In Rethinking the Criminal Law Professor George Fletcher asks rhetorically (at 844): "What is the theory of political authority that justifies the state's intervention against someone who has committed a blameless act?:

6 As far as those suffering from mental illness are concerned, the law is, and has been for many years, that people who do not know the quality and nature of their acts, or who do not know that their acts are wrong, are not guilty of an offence (known since 1843 as the M'Naghten test).

7 It is not hard to see why the law is so. The concept of punishment carries with it the idea that the person being punished has made a decision to do what is wrong. And punishment is inappropriate for those who have not made that choice - people such as the mentally ill.

8 As Howard and Westmore point out in Crime and Mental Health Law in New South Wales, it has long been accepted that the insane should not be held criminally responsible for their actions, with records showing that as early as the 13th century, murderers who committed their crimes whilst suffering from madness were granted pardons.

9 This approach was formalised in the 19th Century following the trial of a man called Hadfield, who, believing that he could only save his soul if he were dead, and that the best way to ensure his own death was by killing the monarch, attempted in 1800 to assassinate George III.

10 Soon afterwards the United Kingdom Parliament responded by passing The Criminal Lunatics Act which provided, in essence, that where a jury finds that a person was insane and not criminally responsible for his acts, then they should return a special verdict of not guilty on the grounds of mental illness.

11 That is not to say that those who are not guilty on the grounds of mental illness should be entitled to walk free in society, and indeed the law has mechanisms in place to protect society and its members from those who are mentally ill. Those mechanisms have existed for many years. In the old English legislation which I have just mentioned it was provided that the person found to be insane was not set free but detained "until the King's pleasure be known". Now, in modern NSW, the Mental Health (Criminal Procedure) Act operates to govern the detention of those found not guilty on the grounds of mental illness.

12 The important thing to recognise however is that where those mechanisms involve the detention of the mentally ill, there is no concept of punishment or criminal responsibility involved. The finding that a person is not guilty on the grounds of mental illness is not a finding that the person should be free. It is merely a finding that the person was not criminally responsible for his or her actions.

13 As I mentioned earlier the appellant does not dispute that he tortured the animals in the way so graphically set out in the evidence before the magistrate. Upon reading that evidence there is a natural human reaction to think that someone must pay for what has happened. But that natural human reaction needs to be tempered by a proper application of the criminal law. Punishing the appellant, or any mentally ill person, for actions over which he had no control because of a disease of the mind would itself be cruel.

14 In this Court, the Crown abandoned any reference to Part 11A Crimes Act, which concerns self induced intoxication, acknowledging that that part had no application to the issue as to whether a person had a defence of mental illness or not. This is a highly significant feature of the way the prosecution proceeded in this Court because it represents an acknowledgment that the magistrate who convicted the accused did so after accepting a flawed argument advanced by the Crown.

15 In the Local Court, the Crown argued that part 11A Crimes Act did apply. The magistrate accepted that argument and so convicted the appellant.

16 The Crown was wrong to rely on Part 11A and doing so led the magistrate into error. A moment's reflection, or an understanding of the context of both Part 11A and the defence of mental illness, would have revealed the flaw in the prosecution's argument.

17 Section 428D Crimes Act provides: In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct:

(a) if the intoxication was self-induced - cannot be taken into account, or

(b) if the intoxication was not self-induced - may be taken into account.

(An offence of aggravated cruelty to animals is not an offence of specific intent).

18 So, as the section says, self - induced intoxication can't be taken into account in determining whether the appellant had the necessary mens rea. That is fairly straightforward. However the question of whether the accused was mentally ill or not had nothing to do with mens rea. If he satisfies the M'Naghten test, then he is not criminally responsible for his actions - whether he intended them or not.

19 The Crown Prosecutor in the Local Court made specific reference to 428G Crimes Act which is in these terms, (1)In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary.

(2)However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced.

20 Again, however, that section is concerned with a concept of voluntariness, which is different to the question of the appellant's criminal responsibility due to his mental illness. It has never been suggested that the appellant's actions were anything but voluntary. This is not a case of a person claiming to be acting in a state of automatism. If it were then 428G would require close examination, see Hadba v R (2004) 146 A Crim R 291.

21 The Crown Prosecutor in the Local Court, and the Magistrate as well, seemed to have thought that a person who does not know that their conduct is wrong is acting involuntarily, but that is not the case as the High Court made clear in Falconer v The Queen (1990) 171 CLR 30.

22 Although Falconer v The Queen concerned the Western Australian Criminal Code, the High Court judgments are of application to those jurisdictions where the principles of criminal responsibility have not been codified.

23 Section 27 Criminal Code (WA) (the Code equivalent of the Common Law M'Naghten rules) provided that: "a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease… as to deprive him… of capacity to know that he ought not do the act or make the omission".

24 Dean and Dawson JJ noted that s27 extended beyond the concept of voluntariness when they said (at 60): "Section 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness. (emphasis added)

25 So 428G, which speaks of "whether the relevant conduct was voluntary" is of no application where what is being examined is the question of whether an accused person is "criminally responsible", at least in a case where it is suggested that the accused does not know the wrongfulness of his or her actions.

26 Elsewhere in Falconer v The Queen, Toohey J, said (at 71): "Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily , hence the need for a lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s27.(emphasis added)

27 And Gaudron J said, (at 82): "At common law evidence postulating a mental state that involves a defect of reason due to disease of the mind (ie evidence raising the first limb of the common law defence of insanity) raises the defence of insanity but does not raise intent or voluntariness as an issue separate and distinct from that defence…"

28 The flaw in the suggestion that s428G is relevant in the present case is made clear by the extracts from Falconer v The Queen I have set out.

29 At the risk of over-repetition the flaw is that s428G speaks of "whether the relevant conduct was voluntary" but answering the question as to whether the appellant has the defence of mental illness available to him does not depend on whether his conduct was voluntary.

30 It is disappointing that such mistake was made. Falconer v The Queen could hardly be said to be an obscure case. And in R v Derbin [2000] NSWCCA 361, a case with some similarities to the present, the Court of Criminal Appeal made no reference to part 11A, which should have caused anyone who was planning to suggest that part 11A was relevant where mental illness is relied upon, to at least pause and reconsider. No doubt the Crown Prosecutor who appeared in this court was familiar with both cases and thus appropriately abandoned, before me, the Crown submission in the Court below concerning part 11A Crimes Act, it being irrelevant to the question I have to determine

31 Because the Crown acknowledges that the whole basis of the Magistrate's decision was flawed it sought to run a different argument in this Court.

32 Both in the Local Court, and in this Court on appeal, the appellant sought to establish on the balance of probabilities that he did not know that what he was doing was wrong, because he was suffering from drug-triggered psychosis, which he submits resulted from a disease of the mind amounting to mental illness.

33 The Crown agrees that at the time the appellant did these terrible things he was psychotic and unable to know that what he was doing was wrong. The point of dispute between the appellant and the Crown is a very narrow one and it concerns whether the accused had a disease of the mind (the appellant's case) or whether his psychosis was only due to his consumption of drugs (the position advanced by the Crown).

34 The point of dispute needs to be resolved because the law distinguishes between those people who become unable to control their own actions purely because of their consumption of drugs or alcohol and those who have an underlying disease of the mind, whereby their inability to know that what they are doing is wrong is triggered by drugs or alcohol.

35 In R v Meddings [1966] VR 306, Sholl J recognised that: "mere transient causes such as alcohol alone do not produce insanity within the meaning of M'Naghten rules".

36 So, if a person without a disease of the mind takes drugs or alcohol with the consequence that they either do not know what they are doing or do not know that it is wrong, they are nevertheless said to be responsible for their own actions and unable to avail themselves of the defence of mental illness.

37 But Sholl J went on to hold that if a person has a disease of the mind predisposing them to a particular condition, then for the purposes of that defence it does not matter whether the trigger was alcohol or a set of surrounding circumstances. The same principle applies where the trigger is not alcohol but drugs.

38 Later, in Falconer v The Queen, at 51, Mason CJ, Brennan and McHugh JJ, referred with approval to the following passage from a judgment of the Ontario Court of Appeal in which Martin JA discusses the concept of "disease of the mind": "In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind, or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not), may be a 'disease of the mind' if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind."

39 Thus a person who has a disease of the mind where their inability to understand the wrongfulness of their conduct is triggered by the consumption of alcohol or drugs is able to rely on the defence of mental illness, but a person whose identical inability arises solely from the consumption of alcohol or drugs is not.

40 This is a fine distinction. The validity of the distinction may be hard to understand because in each case it is the person's voluntary consumption of an intoxicant which is the ultimate cause of the inability to understand the wrongfulness of that person's conduct. But a consequence of the decisions of R v Meddings and Falconer v The Queen, and the many cases in which they have been applied, is that the distinction is important.

41 The distinction is well expressed in Howard and Westmore Crime and Mental Health Law in New South Wales at 165: Thus the concept of 'disease of the mind' will clearly include the classic mental illnesses such as schizophrenia and sever mood disorders; and it will clearly exclude certain temporary conditions such as transient alcohol or drug-induced intoxication causing a temporary inefficient working of the mind, although such substances (which include alcohol, amphetamines, cannabis, narcotics and others) may act as a trigger for an underlying disease of the mind, predisposing a person to a particular condition, such as psychosis.

42 There are thus two ends of the spectrum: A person who does a criminal act but who does not know that what they are doing is wrong purely because of a disease of the mind has the defence of mental illness available to them.

43 At the other end, a person who does a criminal act but who does not know that what they are doing is wrong purely because of the consumption of drugs or alcohol does not have the defence of mental illness available to them.

44 But this case is at neither end of that spectrum. In this case the accused's inability to know that torturing the animals was wrong came about because of a psychosis from which the Crown agrees he was suffering. That psychosis was brought on by the accused's consumption of drugs.

45 In this case there is a very narrow issue for me to determine. That issue is whether the accused had a disease of the mind which meant that his consumption of drugs triggered the psychosis, or whether the psychosis was due only to the consumption of drugs.

46 Mr Marr, who appeared for the appellant, referred me to the reports of Dr Allnutt, a well-respected forensic psychiatrist, who provided a number of reports which were tendered in the Local Court. I will quote at some length from part of Dr Allnutt's report in order that the severity of the appellant's mental illness can be understood. "… In 1998 he developed an interest in Genesis in the Bible, which stimulated an interest in religious matters. Your client describes an intensification of his preoccupation with mysticism beliefs, sometime in 2003. About 18 months prior to my seeing him he described having had a number of unusual experiences that involved special connection to birds and a belief that nature might be communicating with him in some manner. In January 2005 he first used methamphetamines ("Ice"). And continued to use this substance until the time of the alleged offending. Following this he developed the belief that he had a purpose; this was that he was a "tool of the universe"; connected to nature; and meant to protect nature. He also developed the belief that he could communicate with rabbits through a third eye. He embarked on a process of releasing captured animals from pet shops in Sydney, which included rabbits.

At the material time of the alleged offences he believed with conviction that the rabbits communicated with him through his third eye; that some of them did no t want to be released and he needed to kill them; that this was necessary. These beliefs were in my view delusional beliefs derived from a psychotic mental state that had its onset a number of months before the alleged offence."

47 Other reports from Dr Allnutt expand on the connection between the appellant's mental illness and his treatment of the unfortunate animals. The Crown does not challenge any aspects of Dr Allnutt's finding that, because of the appellant's psychosis, he was mentally ill and thus did not appreciate that what he was doing was wrong.

48 Let me take some time to expand on what I have just said. All right thinking members of the community know that it is wrong to be cruel to animals. It is reprehensible to torture animals and only the evil or the insane would argue otherwise. That is what right thinking members of the community believe, but Dr Allnutt found, and the Crown agrees, that at the time the appellant did these terrible things, he was not a right thinking member of the community. His mind was so disordered that he did not understand that what he was doing was wrong. Never has the Crown challenged that finding because it is obviously correct.

49 The only aspect of Dr Allnutt's finding which the Crown does challenge is conveniently summarised in this part of his report of 22 May 2006: "The Issue in this case is whether or not your client was suffering from a 'disease of the mind'. In my opinion this is ultimately a legal decision. However, given your client's positive family history of mental illness, the persistence of symptoms beyond the state of intoxication, the severity of the symptoms and the requirement for antipsychotic medication in order to treat the symptoms - there is sufficient evidence in my view to conclude that the psychosis was persistent and not transient; and that he has an internal vulnerability that predisposed him to the development of a severe and significant psychotic mental state triggered by the use of substances. In my view there are grounds for the court to conclude that his psychotic mental state meets the legal definition of 'disease of the mind'".

50 Dr Allnutt gave evidence in the Local Court and was cross-examined. Although the particular part of the challenge the Crown makes in these proceedings in this Court concerns the underlying basis for Dr Allnutt's opinion and in particular whether there was a family history of mental illness, it has to be said that this matter did not achieve the prominence it did in this Court. That is a significant matter in considering the Crown's application that I should now reject Dr Allnutt's opinion on a basis that was never put to him in cross-examination.

The Crown challenges a matter Dr Allnutt relied upon

51 Dr Allnutt was told by the appellant that his brother suffered from a mental illness. That was one of the factors on which Dr Allnutt based his opinion that the appellant suffered from a disease of the mind. But, says the Crown, Dr Allnutt should not have accepted what the appellant told him.

52 As a matter of law, since the Evidence Act 1995, a history given to a doctor is evidence of the truth of that history (see R v Welsh (1996) 90 A Crim R 364 and R v Peterson [2000] NSWCCA 47, per Grove J, at paras 18 and 19). In this case there is evidence that the appellant's brother suffered a mental illness. There is no evidence to suggest the contrary. Thus, as far as the question of the appellant's brother's mental illness is concerned, the evidence is all one way.

53 I can see no reason why I should not accept that evidence. It is likely that the appellant was accurately telling Dr Allnutt about his brother's condition. After all, the appellant is highly unlikely to be familiar with the intricacies of forensic psychiatry and the criminal law in this area. He is highly unlikely therefore to have lied to Dr Allnut. He would not have known the use to which that piece of information would later be put. This suggests that he was telling the truth.

54 Although very considerable caution should be exercised before relying upon statements made to a psychiatrist when there is no evidence given by the person who made those statements, the circumstances in which the appellant told Dr Allnut about his brother's condition are such that I accept that aspect of the history he gave. This means that there is no reason for me to do anything other than accept the reliability of Dr Allnutt's opinion.

55 Given the narrowness of the dispute between the parties that finding is enough to dispose of this appeal.

56 But even if the appellant's brother did not suffer from a mental illness, then the result would be the same. Even if that factor was removed from the circumstances on which Dr Allnutt based his opinion, then, as I will explain, I am still satisfied that the accused suffered from a disease of the mind, and that his psychosis was not due to drugs alone.

57 In evidence, Dr Allnutt explained that the appellant's psychosis persisted once he had been taken into custody and why that fact was important. If his psychosis remained for a considerable period of time after he ceased consumption of drugs, then that tended to suggest that there was an underlying disease of the mind.

58 Dr Allnutt found that the appellant remained mentally ill even after he had been in custody, and thus unable to take illegal drugs, for some time. He saw the appellant first on the 14th of September 2005, which was a month after the appellant had been arrested and thus a month after he had been taking any drugs. This is what Dr Allnutt said, Well when I first saw him I was very concerned by his presentation … I thought he was probably psychotic at the time that I saw him. He gave me a very convoluted, circumstantial, tangential account of his experience … interlaced with themes of what I believe was of a delusional nature, a history of delusional beliefs and probably hallucinatory experiences, so when I saw him in prison, at the time that I saw him, I thought he was experiencing active symptoms of a psychotic mental state.

59 Things started to improve and when Dr Allnutt saw him a little while later he said, "… I found him to be somewhat improved. He was less disorganised in his thinking but he persisted with unusual thought content consistent with the delusional beliefs that he had experienced prior to that, so I thought - I believed in my view at that stage I believe his symptoms were beginning to resolve.

60 Dr Allnutt formed the opinion that the appellant's psychosis was triggered by the drugs he had taken, but for reasons which he explained, it was not the only cause of the psychosis. He said that the appellant had an underlying mental illness or disease of the mind and Dr Allnutt could tell that that was the case because the psychosis persisted after the appellant was no longer under the influence of the drugs: "… As I explained earlier, if you're psychotic as a consequence of intoxication when the intoxication goes the psychosis remits. So when you're high, you're psychotic, you're seeing things, you're hearing things, you're having a one - hour experience and then you come down to earth again and the essential experience has disappeared and you feel normal. In his case those experiences and those beliefs about his environment which were delusional persisted after the amphetamines had left his body. These are not the transient effects of amphetamines but they were persistent."

61 Mr Marr relies primarily on his client's history after being taken into custody as demonstrating the accuracy of Dr Allnutt's opinion that the appellant was suffering from a disease of the mind - that being an internal vulnerability which predisposed him to the development of the psychotic state once it was triggered by the use of drugs.

62 To summarise his client's history: there is the fact that the psychosis persisted after drug taking stopped, the fact that anti-psychotic medication was necessary to treat the symptoms; and the severity of those symptoms. However Mr Marr, as well as Dr Allnutt, also relied on what was said to be the family history of mental illness. It will be recalled in the passage I have quoted from the report of 22nd May 2006 that that was one of the factors which Dr Allnutt took into account. In turn, that was said to be based on something which was said to him by the appellant. Dr Allnutt records that the appellant told him that his brother suffered from a bi-polar disorder, although he wasn't sure of the exact diagnosis.

63 Because of the way the Crown approached this issue in the Local Court, and because the Crown at no stage challenged the accuracy of the history given to Dr Allnutt insofar as concerned his brother's mental illness, Dr Allnutt was never asked if he would still have the same opinion about what led to the psychosis if he removed the history of mental illness from the equation.

64 The Crown's argument is that I should not accept that the appellant's brother had a mental illness and that therefore the whole basis of Dr Allnutt's opinion is removed.

65 It must be noted, and indeed firmly remembered, that the Crown has adduced not one skerrick of psychiatric evidence to contradict that of Dr Allnutt. One would have thought that if the Crown wanted to mount an argument that Dr Allnutt was wrong, it might have adduced evidence to that effect. It called no such evidence in the Local Court and made no application in this Court to have such evidence admitted.

66 I accept of course that the onus of proof is on the accused on the balance of probabilities, but that onus is more easily satisfied when there is no evidence to contradict that relied on by the appellant. There is psychiatric evidence to establish that the accused is entitled to rely on the defence of mental illness. The Crown says I should not accept that evidence but introduced no evidence to contradict it, preferring instead to attack what I am satisfied is a minor part of the basis of Dr Allnutt's opinion.

67 As I read Dr Allnutt's evidence in the Local Court, in particular his cross-examination, the primary basis for his opinion about the appellant's underlying predisposition to psychosis is not related to any family history but is related to his observations of the appellant once he was taken into custody and ceased using drugs. I repeat that after that happened what Dr Allnutt found was this - the accused remained psychotic even after he ceased using drugs; that psychosis was severe, and he needed anti-psychotic medication. The psychosis was thus not some transient event caused only by the drugs the accused was taking but persisted well after his drug use stopped.

68 It is true that Dr Allnutt relied on the family history of mental illness when asked if the appellant would have become psychotic without taking drugs, but this is a separate issue to the question of whether he had an underlying vulnerability which predisposed him to developing psychosis once he began to take drugs.

69 I suppose the high point of the cross examination as far as the present approach of the Crown is concerned is in this passage: Q. Wouldn't a lot of people have this internal vulnerability?

A. A lot of people with family histories of mental illness would have this internal vulnerability, yes.

70 But again this question is addressing a different issue to the one I have to decide. That passage shows that those with family histories are more likely to be vulnerable to drug - triggered psychosis, but there is nothing in that passage to indicate that Dr Allnutt would have concluded that the appellant's psychosis was solely caused by his drug taking if there had been no family history of mental illness.

71 I am satisfied that these matters clearly indicate that the accused was suffering from a disease of the mind and his consumption of drugs triggered psychosis because of his underlying predisposition. I am satisfied that that is the case even if one were to find that the appellant's brother was not diagnosed with a bi-polar disorder.

72 For the reasons I gave earlier, I am prepared to find on the balance of probabilities that every one of the factors which Dr Allnutt took into account in coming to his opinion is accurate and that therefore Dr Allnutt's opinion should in turn be accepted. But even if one of those matters is removed from the equation and the matter is looked at on the basis that there is no family history of mental illness, I am nevertheless still satisfied for the reasons I have just set out that Dr Allnutt's opinion remains accurate.

73 In those circumstances I am satisfied on the balance of probabilities that the appellant has the defence of mental illness available to him. I therefore find that at the time these animals were tortured by the appellant he was mentally ill so that he was not responsible, according to law, for his actions. In relation to each offence of aggravated cruelty to an animal therefore the appeal is allowed, the convictions are quashed and a verdict of not guilty by reason of mental illness is substituted.

74 The appeal concerning the two drug matters is dismissed and convictions are confirmed.

75 I will now hear submissions as to what consequential orders should be made.

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.