42 Dr Westmore's evidence was that the fact that the accused was able to carry out activities to cover his escape from Australia does not affect his opinion as to the accused's mental state. Notwithstanding the elaborate activities, his evidence was at page 10:
"In terms of his ability to know that he ought not to do the act, that was deprived at the time."
43 According to Dr Westmore, it would be desirable from a psychiatric perspective for the accused to have long term support, such as psychiatric supervision in a secure environment. He noted that this could be provided either through the Long Bay Prison, where the accused is now held, or at some other secure hospital facility.
44 Dr Westmore described an incident of bizarre behaviour by the accused in New Zealand, involving cruelty to an animal. Dr. Westmore was comfortably of the view that it is highly likely that the accused had been mentally ill for some years. This evidence was supported by Dr Christopher Canaris, a forensic psychiatrist, whose report was exhibited before me. His evidence is that the accused suffers from severe and chronic paranoid schizophrenia, an inherent disorder of the mind. It is virtually indisputable that the illness has been present since about 1998, and more likely since his adolescence.
45 This evidence was further supported by the evidence of Dr Kathleen Smith of the Corrections Health Service, whose opinion was that the accused was acutely psychotic and it is likely that he has schizophrenia which back dates to at least 1998. The Court was provided with a further report of Dr Canaris, dated 12 May 2000, reinforcing his view that the accused suffers from paranoid schizophrenia, and that he was psychotic at the time of the killing. The accused admitted to Dr Canaris that he had killed the deceased.
46 The evidence of the psychiatrists was supported by the evidence of a Mary-Anne Hall, of events which occurred in New Zealand in July 1999. She stated that the accused, using the name James Moore, had a knife which was in the range of 26 to 30 centimetres in length. She described the devastation of her home caused by the accused throwing objects around the house and the singed burn marks to her cat and singe marks within the oven. The cat had to be destroyed.
47 Further evidence was also evidence was also provided by Roseanne Corrigan, who noted violent action by the accused when she told him that he was to leave her premises.
48 I direct myself that in respect of the charge of murder, I must apply the criminal standard and find beyond reasonable doubt that the accused caused the death of the deceased, and that that act causing the death was done with reckless indifference to human life or with the intent to kill or inflict grievous bodily harm upon the deceased.
49 I find beyond reasonable doubt that it was the act of the accused in stabbing the deceased that caused his death, and that this action was done with the intent to inflict grievous bodily harm on the deceased.
50 On the question of the defence of mental illness, I direct myself that, being the defence raised by the accused, the onus of proving it rests with the accused but only on the lesser standard of proof, which is the balance of probabilities. It is not open to an accused to avoid the inference of intent that arises from actions by referring to matters that only go to proof on the defence of mental illness. It is mandatory for me to bring in a special verdict of not guilty by reason of mental illness in the event that on the balance of probabilities, I am satisfied, as I am here, of the matters that constituted that defence.
51 I further direct myself that if I am satisfied that there was such a defect of reason from disease of the mind, then to constitute the defence, it must be of such a character as to either prevent the accused from appreciating the nature and quality of the act that he was doing, or to prevent him knowing that what he was doing was wrong.
52 The defence of mental illness requires me to consider whether upon a balance of probabilities, that is a weighing of the scales, the accused has proved that he was suffering from a defect of reason due to a disease of the mind, such that he did not understand and appreciate the nature and quality of his act, or that he did not know that it was a wrong act to commit in the sense that an ordinary reasonable man understands right from wrong; that is, he was disabled from reasoning with some moderate degree of composure and sense as to the wrongness of his act.
53 In those circumstances, I am obliged to have regard to the professional expert evidence of the psychiatrist, and in this case to take into consideration the fact that the psychiatric evidence is unchallenged. Indeed, both parties accept that all expert opinion is of the unanimous view that at the time of the commission of the acts, the accused was not mentally responsible.
54 I must then explain to myself both the legal and practical consequences of the findings which are open in this trial. Under the provisions of the Mental Health Act 1900, which will apply to this particular case if I find the special verdict of not guilty by reason of mental illness, it is my duty to order that the accused be detained in strict custody in such a place and in such a manner as to me would seem fit, until such time that the accused is released by the due processes of the law. In such a case, the accused would not automatically return to the community, but one may assume that he would be detained in strict custody in a place which would be a psychiatric hospital gazetted under the Mental Health Act 1900.
55 By being detained in such a manner, the accused would fall under the supervision of the Mental Health Review Tribunal. This Tribunal comprises a President or Deputy President with legal qualifications and two other members, one of whom must be a psychiatrist, and the other with appropriate qualifications to serve on that body. The Tribunal would commence review of the accused's case within fourteen days of this verdict being delivered. At the conclusion of the review, the Tribunal would make a recommendation to the Minister for Health. The recommendation can either be unconditional or subject to conditions as to the manner in which the accused should be detained, cared for, or treated.
56 The Tribunal can only make a recommendation as to the release of the accused if it were satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. If it makes such a recommendation, then that would be considered by the Department of Health, which in turn would advise the Governor. In accordance with the recommendation and advice of the Tribunal, the Governor would then either make an order for the detention or release of the accused. Such an order can either be unconditional or subject to conditions. The Governor may, however, only make an order for release where the Tribunal itself has recommended release.
57 After the first hearing of the Mental Health Tribunal, it can at any later time, and must at least do so once every six months, review the accused's case. At such later review, it could make a recommendation to the Minister for Health as to the continued care, detention or treatment of the accused or as to his release, being either conditional or unconditional.
58 It would not be free at any stage of review to make a recommendation for release unless the Tribunal were satisfied that the safety of the accused or any member of the public would not be seriously endangered. Again, the matter would go to the Department of Health, the Minister and the Governor, and any recommendation could only be carried into effect by order of His Excellency the Governor.
59 However, if at any time the accused were released into the public on conditions, and it appeared that a breach of those conditions has occurred, then the Governor may order the apprehension of the accused. Such an order would follow by reason of a practical consideration that if a person is released, the Department of Health would maintain a watch over his case with the assistance of the Community Health Centre, the private psychiatrist or one of the other public facilities available.
60 The conditions that could be imposed include, but are not limited to, conditions relating to such matters as living in a particular place, taking particular medication, and ensuring that the patient or the accused is properly cared for. Other than pursuant to any such release, the accused would remain in strict custody in one of the psychiatric institutions catering for forensic patients. The only manner in which a person ceased to continue as a patient is when they are released by the Governor or released on conditions after the expiration of a particular period of time, or in particular circumstances the release should become unconditional. However, such a recommendation could only be made if the Tribunal were satisfied, such as I have indicated earlier.
61 I find beyond reasonable doubt that the accused committed the act which caused the death of the deceased, and that that act was done with the intention to cause grievous bodily harm. Homicide is conceded by counsel for the accused. I find that the defence of not guilty on the grounds of mental illness to be made out on the balance of probabilities.
62 This was a tragic and senseless killing. It has left sorrow in the hearts of members of the deceased's family and his friends, and the court can only acknowledge the sadness and tragedy that these people have to live with. However, in the light of the determination that I have made and the circumstances of this case, the appropriate course that I should take is that defined by s38 of the Mental Health (Criminal Procedure) Act 1990. I am guided by the relevant tests enunciated in R v Gillett [1999] NSWSC 115; R v Maxwell [1999] NSWSC 281, R v Gabranovic [1999] NSWSC 205, R v Noyes [1999] NSWSC 397, and R v Fiori [2000] NSWSC 73, all of which matters are matters that I have taken into account.
63 I order that under s39 of the Mental Health (Criminal Procedure) Act 1990, the accused be detained in strict custody at the prison hospital at Long Bay according to law, and at such other places according to law as may be determined until he is released by the processes of law.
64 I express to counsel my gratitude for their assistance, and again my sympathies to the family of the deceased.
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