R v Mitchell

[2012] NSWSC 1404

Supreme Court of NSW|2012-11-21|Before: Fullerton J

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Court

Supreme Court of NSW

Decision date

2012-11-21

Before

Fullerton J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Judgment 1HER HONOUR: At about 10am on Tuesday, 3 January 2012, the deceased, John Foss, was riding his motorised bicycle south on Coolamon Scenic Drive, Mullumbimby, when he was deliberately hit from behind by the accused, James Mitchell, who was driving a white Toyota Hiace van. 2The deceased was riding to an Alcoholics Anonymous meeting which was scheduled to commence at 10.30am having left his home at Ocean Shores approximately four kilometres from the site of the collision. The deceased and Mr Mitchell were both members of Alcoholics Anonymous and regularly attended meetings in the area. 3The deceased was aged 60 at the time of his death. At autopsy an external examination revealed an extensive pattern of abrasions typical of ground impact abrasions from a rough road surface. A distinctive mark extending over an area of 70mm x 60mm on his left cheek and consisting of a series of distinctive straight lines joining to form obtuse angles and rectangles was also noted. A crime scene officer who examined the van and the body of the deceased following autopsy determined that the tyre on the front nearside of the van corresponded in pattern and in size with the mark on the deceased's face. 4An internal examination exposed severe blunt force trauma to the chest with multiple rib fractures, pulmonary contusions, pulmonary lacerations and an accumulation of blood and air in the chest cavity. In Professor Lyons' opinion, this pattern of injuries would have rapidly and inevitably led to death. The toxicology results were negative for alcohol and prohibited drugs. 5On 4 January 2012 Mr Mitchell was charged with the murder of the deceased and, in the alternative, with one count of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900. 6With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986, the trial was listed to proceed without a jury. 7On 19 November 2012 Mr Mitchell was arraigned before me on the charge of murder only. He pleaded not guilty to that charge on the ground of mental illness as provided for in s 22(2) of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). 8The sole issue at trial was whether Mr Mitchell had discharged the onus of establishing that he should be acquitted of murder on the grounds of mental illness pursuant to s 38 of the Act. This is sometimes referred to as a special verdict. The Crown did not seek to persuade me that a special verdict ought not be entered in this case. 9The defence of mental ilness is made out if I am satisfied that, more probably than not, at the time of the killing Mr Mitchell was suffering from a mental illness such that he did not know that it was wrong to deliberately drive his van at or into the deceased. This is the act that caused the death of the deceased, an issue about which there was no disagreement and which, on the evidence, I am satisfied is established beyond reasonable doubt. In deciding whether a special verdict ought be entered I am obliged to have regard to the legal and practical consequences of a finding that he is not guilty of murder on the grounds of mental illness. I am not, however, required to decide whether the requisite intent for the offence of murder, that is, either an intention to kill or to inflict grievous bodily harm, is proved (R v Minani [2005] NSWCCA 226; 62 NSWLR 490). That question only arises if I do not find that the defence of mental illness is established. For the reasons that follow, that issue does not arise in this case. 10By consent, and without objection, the Crown tendered an agreed statement of facts; a number of witness statements from people who had observed changes in Mr Mitchell's behaviour in the weeks and months before the deceased's death; the results of the police investigation including scientific testing of the van and the bicycle; the post mortem report of Professor Lyons; transcripts of recorded conversations between police and Mr Mitchell; and a report from Dr Olav Nielssen, forensic psychiatrist, dated 9 June 2012. Included in the materials tendered by the Crown was a report obtained by Mr Mitchell's solicitor from Dr Bruce Westmore, forensic psychiatrist, dated 12 March 2012 and a supplementary report from him dated 19 November 2012. 11The reports from both consultant psychiatrists reflect their shared opinion that at the time of the collision Mr Mitchell was suffering from a mental illness that deprived him of the capacity to consider the moral consequences of his behaviour. 12No oral evidence was called in the proceedings.

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The collision 13Coolamon Scenic Drive is a rural road in Mullumbimby with no lane marking, oriented generally in a north-south direction. The roadway on approach to the collision site for vehicles travelling south was flat and straight, opening into a tight right-hand bend. Synott's Lane intersects with Coolamon Scenic Drive, 100 metres north of the collision site. 14Gary Scrimshaw was stationary at that intersection intending to turn left to travel south into Coolamon Scenic Drive when he saw a cyclist (who later proved to be the deceased) cross through the intersection heading south. Mr Scrimshaw's son, Jason, was a passenger in the car. They both said that the cyclist was pedalling as well as using the engine on the bicycle. As their car commenced to turn left a vehicle, which I am satisfied was being driven by Mr Mitchell, also passed through the intersection in the same direction as the deceased. They both remarked at the time that the van was travelling at a fairly high speed, in the sense that it was travelling faster than cars usually travel along that piece of roadway. After they completed the left-hand turn both the bicycle and the van were out of sight. As they ascended a slight rise, Jason could see Mr Mitchell's van about 100 metres in the distance accelerating around the right-hand bend under speed. As the van cleared the bend Jason saw the deceased's body on the left-hand side of the road. 15Mr Scrimshaw stopped his car and notified 000. His son administered CPR. As Jason approached the deceased he saw the white van through the trees in the distance still travelling at a high speed. 16The deceased was unconscious and was bleeding profusely from his nose and mouth. Jason noticed what appeared to him to be a tyre mark across the deceased's face. He also noticed that he had a large laceration to his upper left arm. The deceased was gasping for air and stopped breathing five times before the ambulance arrived. On each occasion Jason was able to revive him. CPR was maintained by ambulance officers upon their arrival twenty minutes later until a second ambulance arrived. The deceased was thereafter transferred to hospital. He died shortly after arrival. 17A crash investigation officer attended the collision site shortly after midday at which time the following observations were made:

The weather was fine and sunny and the bitumen road surface was dry and appeared to be in a good state of repair;
A posted speed limit of 100 km per hour applied;
A single tyre scuff mark (consistent with a bicycle tyre) was noted in the south bound lane, about 1.25 metres in length. It was accompanied by a series of scrape marks between 0.3 and 2 metres in length, also within the single southbound lane;
A parallel set of tyre braking skid marks were noted within the southbound lane between 6.35 and 8.55 metres in length. A spoke from a bicycle wheel was located a short distance south of the end of those skid marks; and
A bicycle was located 1.75 metres down an embankment on the eastern side of the roadway, 33 metres from the scuff mark. It had sustained major damage to the rear wheel and the rear section of the frame.

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Interviews with Mr Mitchell 23Mr Mitchell was interviewed by police following his arrest on 4 January 2012. In the first interview he gave a superficially coherent account of his movements the previous day. Although he admitted driving his van in the area of the collision site, he denied hitting the deceased. He said that his windscreen was shattered and the front panel of his van damaged when he hit a wallaby. He said that he had obtained parts to repair his van. He said he knew the deceased and regarded himself as on reasonably friendly terms with him. He said he had never had an argument with him or spoken to any other members of Alcoholics Anonymous about him. He agreed that he knew where the deceased lived. 24The interview concluded at 3.58pm. Police then informed Mr Mitchell that they had received information identifying what they described as "trace evidence" on his vehicle and that he would be charged with murder. In a conversation with the police immediately after the interview Mr Mitchell alleged that the deceased had raped his mother. He then agreed to participate in a second record of interview. 25In the second interview Mr Mitchell made a number of allegations about the deceased and other members of Alcoholics Anonymous, including that the organisation was a refuge for members of the criminal underworld who preyed on vulnerable people and who committed serious criminal offences, including murder. He went on to allege that the deceased was a high ranking official in the organisation who had tried to have Mr Mitchell removed and that the deceased had intimidated him by placing a bullet in front of him at meetings which Mr Mitchell interpreted as a threat. 26Mr Mitchell also repeated the allegation that the deceased had sexually assaulted his mother (since deceased) in company with others and that they had forced him to have sex with his mother while being videotaped. He said his mother had refrained from telling him that she had been assaulted (by the deceased), "possibly because of the outcome that's just arrived". Police asked what that outcome was and he replied, "Mr Foss' passing". 27When he was asked if he had killed the deceased he said, "Not that I know of". When he was asked whether he was involved in a collision with the deceased's bicycle he said, "No". When asked whether he took matters into his own hands he said: At this point I feel as though a lawyer would come in handy. I've had my piece. I'm not sure whether the blood on the front of my truck's anything to do with Mr Foss or any other injuries on the vehicle. What we do know, [is] that he was going to kill me and quite a few other people involved with the raping [of] my mother.

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Observations of Mr Mitchell's behaviour prior to the collision 28In the course of the police investigation, members of Alcoholics Anonymous were spoken to by police. With differing emphasis they each said that they had noticed a change in Mr Mitchell's behaviour in the six to nine months prior to the deceased's death. 29At the end of October and beginning of November 2011, Katherine Knight received a number of incoherent and incomprehensible text messages from Mr Mitchell, replete with overt sexual references and signed "Ecquine". (He told Dr Westmore in March 2012 that he intended to sign the text message "Equine" because he believed he was Napoleon's horse - a belief which he claimed had come to light in 2011. Four months later, he told Dr Nielssen that he was the reincarnation of Napoleon's horse. While he acknowledged that if another person had made that assertion he would consider it to be an absurd belief he was unable to recognise that his belief in equine reincarnation was bizarre.) 30On 22 November 2011, Thierry Fossemalle received a number of text messages from Mr Mitchell issuing veiled threats of violence and alleging that the deceased had "murdered" him. He went on to claim, "But as you can see I can't die". 31On 13 December 2011, after an Alcoholics Anonymous meeting, Mr Mitchell told Marcus Peace that he was waiting for "Ian" to come past on his bike so he could run him off the road because he and the deceased were running a prostitution ring at Monday night Alcoholics Anonymous meetings and they had guns. 32In mid to late December, Mitchell Chambers rode his motorcycle to an Alcoholics Anonymous meeting at Bangalow. After the meeting, Mr Mitchell's business card was in his helmet. On the back of the card was written, "It's funny watching your mother being raped when you're eight years old". 33In late 2011 Mr Mitchell started telling Christopher Meyers that he had been sexually assaulted by his father and other men. He also said that he was psychic and had provided Queensland police with information about the location of a then missing person (Daniel Morecombe). 34On 30 December 2011, Mr Mitchell approached John Gough at a local hotel. Mr Mitchell and Mr Gough were acquaintances and all previous contact between them had been friendly. Mr Gough held out his hand to Mr Mitchell intending to shake it and wish him a happy New Year. Mr Mitchell punched Mr Gough in the right eye and repeatedly said, "You raped my mother". 35There is nothing in the evidence to give any credence at all to any of the allegations levelled at the deceased or at the organisation of which he was a member. I am satisfied that these thoughts are symptomatic of what was at that time an undiagnosed mental illness.

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Mr Mitchell 's mental health prior to his arrest 36Various medical records pertaining to Mr Mitchell's physical and mental health prior to his arrest were made available to the consultant psychiatrists. They were not the subject of a separate tender, The records from Lismore and Tweed Heads hospitals record that Mr Mitchell had been admitted by police because of irrational behaviour on several occasions whilst affected by alcohol without any accompanying diagnosis of any psychotic illness. The date of the admissions are not noted although it would seem that the last contact with either of those hospitals was in 2007 after he was referred to Alcoholics Anonymous by community-based services. 37Mr Mitchell informed Dr Nielssen that it was through his participation in the Alcoholics Anonymous program that he realised he had been treating depression and anxiety throughout his adult life with alcohol and cannabis, and that he used Panadeine to reduce the symptoms of pain associated with the abuse of alcohol. He denied ever taking amphetamines, heroin or cocaine or abusing other types of medication. 38Mr Mitchell informed the reporting psychiatrists that he began drinking alcohol at around the age of 14 and was drinking daily from about age 19 until joining Alcoholics Anonymous in 2005. He is currently aged 54. He told Dr Nielssen that he started using cannabis and alcohol a few weeks before the offence because he was distressed by his beliefs about the people around him. 39He reported a number of failed suicide attempts in his adult life but said he was afraid to seek hospitalisation because of the history of mental illness in his family. He reported that his sister suffers from a bipolar condition and he understood his brother has schizophrenia and two members of his extended family had committed suicide whilst suffering from mental illness. This information has not been independently verified. Although he has taken antidepressant medications on occasions, he has never been prescribed any psychotropic medication. He claimed that he had not experienced any of the typical auditory symptoms of a schizophrenia-type psychosis. He said, however, that he believed he had been hypnotised over the telephone.

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Dr Westmore 43In March 2012 Dr Westmore examined Mr Mitchell in custody. He summarised his presentation as follows: Mr Mitchell presented as a man with long hair which was quite well kept. He was neat and tidy and pleasant and cooperative. He maintained good eye contact and he spoke spontaneously and expansively. His affect was flat and unresponsive, although I felt there was underlying anxiety. His mood state was subdued. His thought content reveals extensive delusional beliefs. He denies auditory hallucinations or ideas of reference, but he does believe that he has been hypnotised in the past when using the phone. He was generally alert and attentive. 44When asked about the offence Mr Mitchell said that he was convinced that he hit a kangaroo only to find later that he had run over and killed the deceased. When asked whether he had thoughts of harming the deceased he said: Years ago I did, three years earlier as I was attempting suicide by poisoning myself in a caravan. [The deceased] advised me that would be a good idea. I survived my own suicide attempt and thought that his actions were deplorable. 45When asked to recount the history leading up to the incident he reported the resurgence of horrendous memories from childhood including sexual abuse, drug abuse, rape and hypnotism. He also detailed various attempts upon his life in 2006 and 2007 which included extreme physical brutality of various kinds including torture, sexual degradation and murder by drowning. He identified the deceased as one of a number of people who had attempted to kill him. He said one of these events had been filmed. He said that he managed to survive these attempts upon his life because he had the ability to leave his body. He also claimed that he was able to channel information relating to missing people and had spoken to the Prime Minister of Japan and warned him in advance of the tsunami. 46In the course of recounting his personal history (some of which was relatively commonplace in the sense of his nomination of schools he had attended and places his family had lived) Mr Mitchell also claimed that he was a child prostitute for the Freemasons in Sydney; that he had been hypnotised to forget the experience; that the abuse had been filmed and documented; and the former premier of Queensland would have the records. He also claimed he was married at age 6 and that he had a daughter who he met on the same night that he made the predictions about the floods in Toowoomba, the tsunami in Japan and the earthquake in Turkey. 47Dr Westmore offered a differential diagnosis which included a delusional disorder and chronic paranoid schizophrenic illness or perhaps a schizoaffective disorder as suggested by the Justice Health psychiatrist. In so far as the defence of mental illness was concerned he said: On the balance of probabilities, [at the time of the incident] Mr Mitchell was suffering from a disease of the mind, specifically a psychotic illness, which is an abnormality of mind, which would have totally deprived him of the capacity to know that he ought not to do the act. It seems likely, certainly on the balance of probability, that he was delusionally driven, ie acting on delusional beliefs in relation to the deceased at the time of the incident. Mr Mitchell could therefore raise the defence of mental illness to the charge of murder. If the defence is successful, he will require long term and probably lifelong psychiatric support and supervision.

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Dr Nielssen 48Dr Nielssen examined Mr Mitchell in custody on 31 May 2012. He summarised his presentation at that time as follows: Mr Mitchell presented as a trim man of fifty-four years of age with shoulder length grey hair tied into a neat ponytail. There were no obvious signs of neurological disorder, for example, abnormalities of movement, gait or articulation. He did not seem especially agitated or distressed at any stage in the interview, or to be depressed, and if anything, his emotional responses were rather bland considering the topics being discussed. He was calm and softly spoken, and his speech was superficially fluent. However, there was subtle disorganisation of his speech as he wandered from the point, missed the intention of some questions and gave some bizarre responses that referred to the names of people as though they were familiar to the interviewer. He denied experiencing auditory hallucinations or other typical symptoms of schizophrenia, and did not appear distracted as though by hallucinations. However, he expressed a number of bizarre delusional beliefs and did not seem to recognise the apparent absurdity of many of his statements. He was correctly orientated and had some knowledge of recent events, although he was unable to describe current events in great detail. A formal screen of intellectual function was not performed, as his memory and concentration appeared to be intact. He was literate and his pre-morbid intelligence was estimated to be within the normal range, from his vocabulary and his occupational attainment. His intellectual function was thought to be largely unimpaired, apart from his inability to critically evaluate the basis for his beliefs arising from late onset mental illness. 49Mr Mitchell recounted the same or very similar delusional beliefs to Dr Nielssen as those recorded by Dr Westmore, and asserted the same range of supernatural powers which do not warrant repetition in this judgment. 50In response to questions directed to his relationship with the deceased, he said that he had known Mr Foss as a member of Alcoholics Anonymous since 2005. He said they had not had any dispute until the months before the offence when the deceased had, according to him, taken to placing a shotgun pellet on the table in front of him before each meeting which he understood was to let him know that people were trying to kill him. He said it was at that time that he realised that the deceased was party to a conspiracy to kill him. 51When taken to the offence itself Mr Mitchell told Dr Nielssen that he had planned to wait beside the road until the deceased drove by and run him off the road. He said he had formed that plan on the day of the killing. He said he parked his van beside the road as he expected the deceased to come by on his bicycle on the way to the Alcoholics Anonymous meeting. He said that when he saw the deceased ride past him he drove after him and hit him. He went on to say that he did not stop after hitting the deceased and did not check whether he was moving or whether he needed medical assistance. He said, "They had already tried to kill me twice before...I was in fear". 52Dr Neilssen diagnosed chronic paranoid schizophrenia on the basis of what appeared to him to be bizarre delusional beliefs arising as primary delusions, rather than secondary to symptoms such as auditory hallucination. He went on to say: ... The onset of the illness is relatively late, as Mr Mitchell was not reported to have symptoms of psychosis at the time of assessments performed in 2002, 2003 and 2005. However, there is evidence of a decline in social and occupational function in recent years, including being granted the Disability Support Pension two years ago. Mr Mitchell reported the emergence of his beliefs regarding having been hypnotised about eighteen months ago, and the witness statements confirm that bizarre beliefs had been evident for some months prior to the offence. ...[The] comparatively late onset of illness and the unusual pattern of symptoms suggests some kind of neurological basis for the development of psychosis. There has to be a marked loss of self-awareness to be able to uncritically entertain such bizarre beliefs, similar to the loss of self-awareness associated with some stroke syndromes. Notwithstanding the aetiology of his condition, it is clear from the findings from the recent interview and the corroborative information provided that Mr Mitchell was mentally ill at the time of the offence and that he committed the offence in response to bizarre delusional beliefs regarding Mr Foss. Hence I believe he has the defence of mental illness open to him for the charge of murder. He has a disease of the mind, in the form of a chronic schizophrenic illness that produced a defect of reason in the form of a bizarre delusional belief and the loss of any capacity to critically evaluate his own thinking. He was clearly aware of the nature and quality of his act in deliberately driving his car into Mr Foss with the likelihood that he would cause his death. He also recognised that his actions were likely to result in criminal charges, from his attempt to conceal the offence from the police. However, I believe he was unable to recognise that his actions were morally wrong, as he believed that Mr Foss was part of a conspiracy to harm him, and his mental illness deprived him of the capacity to logically consider whether his beliefs might be unfounded or consider the other courses of action available to him.

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Mental state at the time of the offence 53As I have noted above, the consultant psychiatrists are of the unanimous view that at the time of the incident Mr Mitchell was suffering from a disease of the mind that prevented him from recognising the moral wrongfulness of his actions and which operated to compromise his capacity to understand the true nature and quality of his actions. Having regard to their expert opinion and the other evidence tendered in the proceedings I am satisfied that the defence of mental illness has been established and that a verdict of not guilty by reason of mental illness should be returned. 54Before turning to decide what orders should be made under s 39 of the Act, in these circumstances I pause to extend my deepest sympathies to Mr Foss' family. I well understand that these proceedings, and my findings, will not ameliorate their grief but I trust that they appreciate and accept that in our system of justice only the mentally competent are punished as criminal offenders. 55Both Dr Westmore and Dr Nielssen were of the opinion that Mr Mitchell requires long-term psychiatric care and supervision. There is no evidence before me as to his current functioning or any treatment he is receiving as a remand prisoner. I do note that he does not appear to be detained as a forensic patient in the sense that he informed Dr Nielssen in May 2012 that he was housed at the Metropolitan Remand and Reception Centre and had a job working in the prison laundry. On the other hand, his counsel does not submit that I would order his release into the community, either unconditionally or on conditions under s 39(2) of the Act there being no evidential basis to support a finding that neither his safety nor the safety of other members of the community would not be put seriously at risk were he released. The alternative is to order that he be detained in custody as a forensic patient under the supervision of the Mental Health Review Tribunal until a decision is made to release him under s 39(1) of the Act. 56The Tribunal's functions include a review of the case of a forensic patient as soon as practicable after an order is made under s 39 of the Act. The Tribunal may make orders thereafter concerning a person's continued detention, care or treatment on review at six monthly intervals and make appropriate orders as to their continued detention, care or treatment in a hospital, prison or other place, or order their release either conditionally or unconditionally. I also note that the Tribunal cannot make an order for the release of the forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered and that it must notify the Minister of Health and the Attorney General in advance of the release of a forensic patient in order that the Executive may make submissions to the Tribunal in relation to that question. 57Having regard to the prevailing diagnoses of chronic schizophrenia (albeit, in Dr Westmore's view, a range of differential diagnoses were available), and with no apparent abatement of symptoms at least up to and including 31 May 2012 when Dr Neilssen examined him, and no information from Justice Health addressing his current functioning such as to enable me to make an informed risk assessment, I am not satisfied that Mr Mitchell should be released into the community at this time. 58Accordingly, I make the following orders:

James Andrew Mitchell is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
I direct that the Registrar notify the Minister of Health of these orders.
I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that he provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.