R v Moore

Supreme Court of NSW|2020-11-03|Before: Johnson J, Health J

Solicitors: Solicitor for Public Prosecutions (Crown) Marsdens Law Group (Accused) File Number(s): 2019/70328 Publication restriction: ---

The Trial of the Accused

On a prior occasion, when this trial was listed to proceed today, counsel appearing for the Crown and the Accused informed the Court that the sole issue in the proceedings was whether the defence of mental illness was established. In advance of the trial, documentary evidence has been prepared by the Crown and the legal representatives for the Accused which has been tendered at the trial.
The evidence in the trial is almost entirely documentary. There is contained in a folder (Exhibit A) a range of materials, including a Statement of Agreed Facts, photographs, reports of Dr Olav Nielssen and Dr Adam Martin (both highly experienced forensic psychiatrists to whom later reference will be made) together with a volume of other material concerning the psychiatric history of the Accused and his treatment over a number of years.
I said that the evidence was almost entirely documentary because there is one additional item - a disk containing closed circuit television footage taken on the evening of 28 February 2019 at the location where these tragic events occurred, namely 16 Gladstone Street, North Parramatta.
The CCTV footage did not disclose the fatal attack upon Mr White-Cotterell, but it did show movements of the Accused at about that time which have direct relevance to the issues in the trial.
Neither the Crown nor Ms Wasley, counsel for the Accused, wished to cross-examine the psychiatrist witnesses.
I note that the psychiatric evidence placed before the Court confirmed that the Accused is fit to be tried.
In addition to the evidence to which I have made brief mention, helpful written submissions were furnished as well by the Crown (MFI 2) and by counsel for the Accused (MFI 3). It is the common position of the Crown and counsel for the Accused that the appropriate verdict to be returned in the circumstances of the case is that the Accused is not guilty by reason of mental illness.

Issues in the Trial

The burden of proof lies on the Crown to establish beyond reasonable doubt each element of the offence of murder. The Crown must prove, in this case, that Mr White-Cotterell died as a result of injuries inflicted by the deliberate acts of the Accused. There is no issue in this trial that those elements of the crime of murder are established to the criminal standard of proof.
In addition, in a murder trial, it is necessary for the Crown to prove beyond reasonable doubt that at the time of doing the acts which caused the death of the deceased, it was the intention of the Accused to kill or inflict grievous bodily harm to the deceased.
It has been said that when the defence of mental illness is raised, it is unnecessary to consider whether the Crown has proved the mental element of the offence charged unless the Court is not satisfied that the Accused has established, on the balance of probabilities, the elements of the defence of mental illness: Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].
I state that, to the extent that the Crown is required to prove the mental element in this case, it would be clearly established to the criminal standard.
Once the Crown has established beyond reasonable doubt the elements of the crime of murder, the remaining issue is whether the Accused has available to him the defence of mental illness as to which he bears the onus of proof on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659 at 664-665; [1960] HCA 77.
If it appears that the Accused was mentally ill at the time when he committed the relevant acts, the Court must return a special verdict that he is not guilty by reason of mental illness: s.38(1) Mental Health (Forensic Provisions) Act 1990.
The defence of mental illness is to be determined in accordance with the M'Naghten rules laid down in England in R v M'Naghten (1843) 8 ER 718 at 722. Although the principles in M'Naghten's case are almost 180 years old, they form the basis of the common law with respect to the defence of mental illness. The classic statement of the defence of mental illness which remains current and is applied in Courts in this State was contained in what was a summing up to a jury in a murder trial in Canberra by Dixon J, a Judge of the High Court of Australia, in The King v Porter (1933) 55 CLR 182; [1933] HCA 1.
In summing up to a jury, Dixon J said at 187-190 (emphasis added): "You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is. The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how he was before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive. The next thing which I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to form your opinion upon it. In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. In this case, except for the prisoner's own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged. 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. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression 'disease, disorder or disturbance of the mind.' That does not mean (as you heard from the doctor's replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know,' 'knew that what he was doing was wrong.' We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? 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 that 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 think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but 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 upon the ground that he was insane at the time he committed the acts charged."
Accordingly, it is for the Accused to establish the defence of mental illness. It must be proved, on the balance of probabilities, that at the time of committing the acts causing the death of Mr White-Cotterell, the Accused was labouring under such a defect of reason from disease of the mind so as to not know the nature and quality of his acts or, if he did know it, that he did not know that what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it was wrong according to the ordinary standards of right and wrong adopted by reasonable persons or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing. That formulation has been applied repeatedly by the High Court of Australia and by Courts in this State as being the test for the defence of mental illness.
A "disease of the mind" is any disease which is capable of affecting the mind and the term is synonymous with "mental illness": R v Radford (1985) 42 SASR 266 at 274. However, it does not include the transitory effects of some application of an external factor such as the effect of alcohol or drugs to an otherwise healthy mind: R v Falconer (1990) 171 CLR 30 at 53; [1990] HCA 49; Fang v R (2018) 97 NSWLR 876; [2018] NSWCCA 210 at [66]ff.
I will return to the elements of the defence of mental illness after making findings of fact and referring, in some little detail, to the psychiatric evidence.

Findings of Fact

I make the following findings of fact by references to the Statement of Agreed Facts contained within Exhibit A.
The Accused was born in June 1983 and was 35 years old in February 2019. At the time of his death, Mr White-Cotterell was 46 years of age.
The Accused and Mr White-Cotterell were next door neighbours residing in adjacent units at 16 Gladstone Street, North Parramatta.
The Accused had a long-standing psychiatric history. He was living in the community and receiving treatment for psychiatric conditions. He lived on his own in a unit at 16 Gladstone Street, North Parramatta, a property administered by Housing New South Wales.
I will refer to aspects of the Accused's psychiatric history a little later. For the moment, I will move directly to the events of late February 2019. Events on 27 February 2019
On 27 February 2019, two client service officers from Family and Community Services attended the unit of the Accused for the purpose of conducting a home inspection as part of their regular duties. The officers were unable to raise the Accused by knocking on the door. One officer attended the unit of Mr White-Cotterell to make enquiries as to whether he had seen the Accused. That officer engaged in general conversation with Mr White-Cotterell who made no complaint concerning the Accused. The other officer called the Accused on his phone. The Accused thereafter opened the door to the officers. This was a normal arrangement for the Accused who had a practice of not answering the door unless he was telephoned first.
Upon entering the Accused's unit, the officers noticed a baseball bat in the corner of the lounge and observed that the Accused was sweating and agitated. The officers decided not to inspect the property further because of concerns about the Accused's behaviour. Before they left, they asked the Accused why a fly screen had been removed from a door. The Accused glared at them and said he liked it like that. The officers asked the Accused if they could assist him with anything and he replied in the negative. The officers then left the property and took no further action. Events on 28 February 2019
On 28 February 2019, Mr White-Cotterell had been visiting the premises of his ex-partner, Ms Theepa Puvanachandran, in Kellyville. Ms Puvanachandran observed that Mr White-Cotterell was not in a particularly fit state. He appeared weak, pale and had difficulty moving due to a shoulder injury which he sustained in 2011. She was concerned about his ability to drive and assisted him in keeping a lookout while he reversed his vehicle out of the driveway. Mr White-Cotterell was scheduled to have surgery on his shoulder and neck on 4 March 2019.
At about 8.42 pm on 28 February 2019, a CCTV camera located at the premises at 16 Gladstone Street captured the Accused returning home and parking his vehicle in his allocated garage.
As the Accused left his garage, Mr White-Cotterell returned home and parked his vehicle in an open space next to the garage. The vehicles were parked opposite the units of the Accused and Mr White-Cotterell.
The Accused approached the rear of Mr White-Cotterell's vehicle. The Accused is captured on CCTV footage swinging his legs back and forth and jumping up and down - this being a behavioural movement which he engaged in frequently and which is mentioned in medical records concerning his psychiatric history. The fact that the Accused was behaving in that way at that time sheds some light upon his state of mind.
At 8.47 pm, Mr White-Cotterell left his vehicle and walked towards his unit. The Accused followed Mr White-Cotterell and they moved out of view of the CCTV camera.
At this time, the Accused stabbed Mr White-Cotterell multiple times using a knife which resulted in the death of Mr White-Cotterell. Nearby neighbours heard the sounds of males arguing and punches being thrown, together with the sound of punches impacting with the skin and a male screaming "Help" and "Police". Neighbours made "000" calls and police and ambulance assistance was requested.
At 8.48 pm, the Accused ran back to his garage door before returning in the direction of his unit.
Police attended and observed Mr White-Cotterell lying face down in the driveway. He was lying in a pool of blood which ran between three-to-four metres and was 50 centimetres wide down the slope of the driveway. Mr White-Cotterell was unresponsive and had no pulse. Ambulance officers confirmed that Mr White-Cotterell was deceased.
I pause at this stage to say that there is absolutely nothing in the history between Mr White-Cotterell and the Accused to show that there was any background of animosity between them. Mr White-Cotterell had done nothing to provoke or bring about any type of friction between the two men, let alone an attack such as this. It happened to be the case that they were living in adjacent units at these premises. Beyond that, there is nothing in the evidence to indicate any type of rational explanation for there to be a dispute between the two men, let alone one that gave rise to a homicidal attack. The Accused is Arrested
Police conducted a search of the area and, at 10.30 pm, blood was located on the door handle to the Accused's premises. Noises and lights were heard and seen to be emanating from the Accused's unit. Police knocked on the door and called out "Police. Open the door. Your house is surrounded". There was no response from the Accused.
A perimeter was set up around the unit between 10.35 pm on 28 February 2019 and 2.30 am on 1 March 2019. Numerous requests were made for the Accused to leave the premises with no response.
At about 2.30 am on 1 March 2019, a hydraulic tool was used to force open the front door of the Accused's unit. Police negotiators used a megaphone and directed the Accused to leave the unit.
At 2.34 am, the Accused exited his premises. He was cautioned and arrested. A laceration was observed to the Accused's small finger on his right hand which was covered by sticky tape. When asked how he cut his finger, the Accused said "I cut it with a knife … you know how, it's about the guy outside … he tried to rob me. It was self-defence and I took it too far".
The Accused told police that the knife he used to stab Mr White-Cotterell was under his bed. He described it as a pocket knife with a black handle, camouflage blade and 20 centimetres in length.
I pause again at this stage to note that there is nothing to suggest that Mr White-Cotterell tried to rob the Accused or did anything that gave rise to the need for self-defence. It is common ground between the Crown and counsel for the Accused that Mr White-Cotterell did nothing to the Accused to bring about the Accused's attack on him. Once again, what the Accused said to police at that stage sheds light upon his state of mind at the time of these tragic events.
The Accused was transported to Westmead Hospital for surgery to his finger. A hair was located on his hand which was, on examination, found to be a hair from Mr White-Cotterell.
Meanwhile, back at the premises at 16 Gladstone Street, a 21 centimetre knife with a nine centimetre blade was located by police under the Accused's bed. The tip of the knife was missing. Bloodstaining and red discolouration was located on a pair of Nike Air Max shoes, zip lock bags containing green vegetable matter believed to be cannabis, two DVD cases, a white sock, a bed sheet and a pillowcase.
An autopsy was undertaken with respect to Mr White-Cotterell on 5 and 6 March 2019 and it was concluded that the cause of death was multiple stab wounds. The examination revealed that there were some 83 stab wounds of which 30 were superficial. The wounds were to different parts of Mr White-Cotterell's body. It is not necessary, for the purpose of this judgment, to provide any further detail in that respect.

The Psychiatric History of the Accused

The Accused has a long history of treatment-resistant schizophrenia commencing when he was about 18 years of age. He is now 37 years old. There is a helpful summary of the documented psychiatric history of the Accused in the evidence and submissions before the Court.
A report of Dr Andrew Ellis dated 3 June 2015 provides helpful detail. Dr Ellis, a well-known psychiatrist, prepared a report for Cumberland Hospital with respect to the Accused. The report outlined the Accused's medical history between 2001 and 2015. Based on the material available to Dr Ellis, he expressed the opinion, in 2015, that the Accused presented a high risk of reactive aggressive behaviour.
At the time of Dr Ellis' report of 3 June 2015, the Accused was an involuntary patient at Cumberland Hospital. It is appropriate to refer to aspects of the Accused's treatment history which shed light upon his mental state in February 2019 and also assists an understanding of the opinions expressed by Dr Nielssen and Dr Martin in their reports to which I will shortly turn.
The Accused has required some seven involuntary admissions to hospital since the age of 18 years. His illness has been characterised by lengthy periods of catatonia, that is, physical rigidity or stupor.
In 2000, the Accused was supported in youth accommodation. In 2001, he was using substantial quantities of prohibited drugs including mind-altering substances. The medical evidence indicates that this drug usage has contributed to his subsequent psychiatric condition.
In 2001, the Accused was admitted to Sutherland Hospital following a deterioration in his mental health. In 2002, he was diagnosed with severe chronic schizophrenia and required treatment. One of the behaviours noted at that time was bizarre repetitive movements. I have mentioned already that there were repetitive movements of an unusual type observable on the CCTV footage on the evening of 28 February 2019 (see [35] above).
There have been incidents of violence in the Accused's past. He was charged with assault occasioning actual bodily harm against his mother in 2002. At the time, he was considered to be treatment resistant. In June 2003, he was scheduled as a mentally ill person and discharged into the care of his grandfather.
The Accused has assaulted staff or patients at Bloomfield Hospital on eight occasions. This included a serious assault against another patient in Bloomfield Hospital in February 2004. Following that charge, the Accused was held for a period in Long Bay Prison Hospital and then Rozelle Hospital. There were gradual improvements between 2005 and 2008.
In 2009, the Accused was released on a Community Treatment Order which lapsed in 2010. In 2014, the Accused was charged with common assault in a shopping centre. Whilst on remand, he was treated at Concord Hospital due to concerns about his physical and mental health and unusual behaviour was observed on his behalf, including bizarre physical movements.
In December 2014, the Accused told nursing staff that if he was sent to an "outside hospital" he would kill someone and that he needed to be "somewhere secure".
In January 2015, the Accused was transferred to Prince of Wales Hospital where he had physical altercations with patients. Thereafter, he was transferred to Goulburn Hospital where he assaulted an elderly male patient. The assault was unprovoked and consisted of the Accused repeatedly stabbing the elderly victim with a pen. He was transferred to Cumberland Hospital due to concerns regarding risks of harm to others.
When interviewed by Dr Ellis in 2015, the Accused was making repetitive hand gestures and movements. Dr Ellis noted that the Accused had a long-standing diagnosis of schizophrenia, typically characterised by delusional beliefs and auditory hallucinations. In Dr Ellis' opinion, the Accused also met the criteria for amphetamine use disorder and cannabis use disorder.
From April 2015 to December 2016, the Accused was cared for by Dr Gim Tan, a medical officer, and Dr Michael Kluger, a psychiatrist. In a report prepared for the Mental Health Review Tribunal dated 9 August 2016, Dr Tan noted three incidents of violence towards other patients in March 2015 including the kicking of another patient.
In December 2015, the Accused was injecting "ice" resulting in hospitalisation.
The Accused was subject to a further Community Treatment Order for a period, but this order had expired in December 2018. However, he was still regularly attending a clinic run by Western Sydney Mental Health for the purpose of receiving Clozapine, an antipsychotic medication. The last occurrence when the Accused attended the clinic was on 20 February 2019, at which time it was noted that he was taking 550 milligrams of Clozapine daily.
Contained in the tender bundle is a report of Dr Lakshmi Kondadasula of Parramatta Community Mental Health Centre. The report indicates that Dr Kondadasula examined the Accused on 20 February 2019 at the Parramatta Community Mental Health Centre. Dr Kondadasula states that during the reviews undertaken (including that on 20 February 2019), the Accused was polite and co-operative. He did not display any delusions or hallucinations or mood symptoms, nor did he display any thought disorder. The Accused's insight was limited and his judgment was poor.
On the last review on 20 February 2019, Dr Kondadasula expressed the diagnosis of treatment-resistant schizophrenia and cannabis and amphetamine use. That visit to the Parramatta Community Mental Health Centre occurred eight days prior to the terrible events of 28 February 2019.
It is clear that, by 28 February 2019, the Accused had a long-standing and entrenched psychiatric history involving admissions from time to time and incidents of violence.

Expert Psychiatric Evidence

I turn to the expert psychiatric evidence which is before the Court. Dr Olav Nielssen
Dr Nielssen prepared a report dated 28 December 2019 at the request of the legal representatives for the Accused. Dr Nielssen is an eminent forensic psychiatrist well known to the Court. He interviewed the Accused by audio-visual link at the Metropolitan Remand and Reception Centre on 17 December 2019.
Dr Nielssen had available to him a wide range of documentation with respect to the events of 28 February 2019 and reports concerning the Accused's psychiatric history.
Dr Nielssen obtained a history from the Accused and summarised the Accused's psychiatric and medical history and his history of substance abuse. Dr Nielssen undertook a document review, summarising the extensive body of material which had been provided to him.
Dr Nielssen diagnosed the Accused as suffering from schizophrenia and substance use disorder. It is appropriate to set out what Dr Nielssen said with respect to these diagnoses, together with his conclusion concerning the availability of the defence of mental illness to the Accused.
Dr Nielssen said, under the heading "Opinion" (report, pages 6-7): "The diagnosis of schizophrenia is made on the basis of the symptoms reported by Mr Moore, the information in the various medical reports, the pattern of his treatment, and some aspects of Mr Moore's presentation during the recent interview. Mr Moore reported the onset of schizophrenia at the age of eighteen, after a period of use of methamphetamine, and long admissions to rehabilitation wards during the early years of his illness. He reported the emergence of hallucinations of voices from about 2005 or 2006, and treatment with clozapine, a medication reserved for treatment resistant forms of schizophrenia, from around that time. At the time of the recent interview he had the abnormal emotional responses and stereotyped speech in a pattern consistent with a chronic form of schizophrenia that had partly responded to treatment with a combination of clozapine and another antipsychotic medication. The further diagnosis of a substance use disorder is made on the basis of the history of regular use of cannabis, which is associated with an earlier onset and less favourable course of schizophrenia. There was also a history of abuse of stimulant drugs, prior to the initial episode of psychosis, and in the period before his last hospital admission in 2015. Any use of cannabis and methamphetamine in a person with an emerging or established psychotic illness would be considered harmful, and sufficient to meet the accepted criteria for the diagnosis of a substance use disorder. Based on the available information, I believe Mr Moore has the defence of mental illness open to him for this offence. He has a disease of the mind in the form of a chronic schizophrenic illness, which in its typical form is a neurodegenerative disorder that during the acute phase produces a pattern of abnormality of mind manifesting in impaired emotional regulation, impaired capacity for logical thinking, perceptual disturbances, especially hallucinated voices, and persecutory beliefs, usually arising from the content of hallucinated voices. At the time of the offences Mr Moore was affected by a defect of reason in the form of the delusional belief that Mr White-Cotterell planned to kill him, based on the content of hallucinated voices. Mr Moore was aware of the physical nature and quality of his actions in attacking Mr White-Cotterell with a pocket knife he had carried for his own protection because of his fear for his safety. However, I believe he was deprived of the ability to recognise that his actions in doing so were morally wrong, as in his deluded state he believed he was acting in self defence. About half of all homicides committed by people in acute psychosis are in response to the delusional belief that the affected person is in immediate danger from the victim of the offence."
Dr Nielssen went on to say that, if the proceedings reached that point, the Accused would also have available to him the partial defence of substantial impairment by abnormality of mind. Dr Nielssen noted that there was no issue of self-induced intoxication at the time of the offence.
As noted earlier, Dr Nielssen expressed the view that the Accused was fit to enter a plea and fit to stand trial.
Dr Nielssen concluded his report stating that the Accused "requires lifelong treatment for his condition". Dr Adam Martin
At the request of the Crown, the Accused was examined by Dr Martin who furnished a report dated 20 April 2020. Dr Martin is an eminent forensic psychiatrist well-known to the criminal courts in this State.
Dr Martin interviewed the Accused in person at the Metropolitan Remand and Reception Centre on 15 April 2020. In addition, Dr Martin had available to him a wide range of documentation including the facts with respect to the case and the Accused's psychiatric history. Dr Martin also had a copy of Dr Nielssen's report.
Dr Martin outlined the treatment being provided to the Accused at the time of examination in April 2020 together with his psychiatric history. He noted that the Accused's psychiatric history included two admissions to the Mental Health Unit at Royal Prince Alfred Hospital which were relatively lengthy as well as other admissions, some of which I have mentioned already.
Dr Martin outlined aspects of the Accused's medical history, personal history, family history and forensic history together with his account of the incident on 28 February 2019 leading to the tragic death of Mr White-Cotterell.
The Accused's account to Dr Martin indicated persecutory belief processes of a paranoid type being operative at the time of these terrible events.
Dr Martin expressed the view that the Accused was fit to be tried. He then provided a detailed and helpful summary of the Accused's psychiatric history, including periods of hospitalisation and other incidents of violence whilst receiving treatment, including reference to the report of Dr Ellis of 3 June 2015 which I have mentioned.
Having undertaken that thorough examination, both of the Accused and the material provided to him, Dr Martin expressed the following opinion (report, pages 13-15): "In terms of diagnosis, there is overwhelming evidence of Mr Moore having chronic schizophrenia complicated by substance use disorder [cannabis, amphetamines] going back to Mr Moore's teens, with lengthy hospitalisations as an involuntary patient. The fact that the hospitalisations included lengthy rehabilitation admissions is testament to the severity and chronicity of his illness. His history is characterised by previous unprovoked violence against staff, other patients and his mother, and this was previously attributed to persecutory thinking and auditory hallucinations [hearing voices]. He has previously been catatonic, which is a severe and life-threatening manifestation of schizophrenia, and it was noted that he has previously had an intensive care unit admission because of the effects of dehydration secondary to catatonia and that he was previously referred for electroconvulsive therapy but that this was blocked by a court order apparently. There is consistency throughout the large volume of medical material demonstrating diagnosis and management for schizophrenia. The history and mental state examination taken by myself was consistent with this diagnosis. He has been treated for several years with Clozapine, which as noted, is an atypical anti-psychotic medication reserved for treatment resistant schizophrenia because of its potentially dangerous side-effect profile. Schizophrenia is considered a major mental illness and is essentially a description of a chronic predisposition to experience of psychosis. Psychosis is a description of a person being out of touch with reality, manifested by delusional thinking [fixed false beliefs], auditory hallucinations [perceptions in the absence of external stimuli] and thought disorder [break down in coherence of expressed ideas]. Schizophrenia is frequently complicated by disorganised behaviour and poor insight [poor self-awareness for one's condition and need for treatment]. Schizophrenia and related major mental illnesses are frequently complicated by substance use, which worsen a person's condition and disability. Major mental illness and substance use are considered risk factors for violence [for instance, as items in the risk management tool HCR-20-Version 3]."
Dr Martin then explained his opinion that the Accused was fit to be tried.
Dr Martin then turned to the defence of mental illness (report, pages 14-15): "In relation to the potential defence of mental illness, I found the following. In my opinion, it would be reasonable for the Court to see him as suffering a disease of the mind causing a defect of reason. Schizophrenia has been considered to be a disease of the mind in the courts. There is overwhelming evidence, as noted above, of him having this diagnosis. The behaviour as alleged appears to have been deliberate and intentional. It has apparently occurred in clear consciousness and he was not apparently intoxicated at the time. The alleged behaviour is seemingly unprovoked and senseless. Given his history, my view is that it is likely that the alleged violence occurred as a product of underlying symptoms of major mental illness, probably driven by distorted thought processes around perceived need for self-defence, motivated by underlying paranoid thought processes and command auditory hallucinations. This is necessarily speculative but appears to me the most likely explanation for the alleged extreme violence conducted in an unprovoked manner, on a background of a lengthy history of unprovoked violence while psychotic. In my opinion, Mr Moore would have understood the nature and quality of his act in killing the victim. In my opinion, it is likely that he would have understood the legal wrongfulness of the alleged offending, given his actions afterwards in locking himself up and subsequently making admissions to the police. However, in my view, it is likely that he would not have fully appreciated the moral wrongfulness of his behaviour [from a psychiatric perspective, noting that this is a legal construct and an ultimate issue for the Court] in that it seems to me likely that the violence was closely associated with paranoid thinking and hallucinations, as part of a psychotic mental state. That is, in my opinion, it is likely that he would have felt under threat as a result of paranoid thinking and voices telling him to harm the person before he was harmed himself, and that his thought processes were extremely distorted, over-riding any judgment or consideration of the consequence of his actions. In my view, he would not have been able to reason with moderate composure. In my opinion, it would be reasonable for the court to find him as having been mentally ill to the extent that he could successfully argue the defence of mental illness."
Dr Martin expressed the following opinion concerning the future management of the Accused (report, page 15): "In terms of future management, he requires intensive supervision and treatment in a secure environment for a lengthy period, and in my view, it is likely that he will always require either hospital or very closely monitored accommodation, particularly given that the alleged offending occurred while he was apparently compliant with potent anti-psychotic medication and not apparently presenting as psychotic in the weeks and months before."

Determination Concerning Defence of Mental Illness

As will be clear from the reports of Dr Nielssen and Dr Martin, each psychiatrist has expressed the opinion that the Accused, as at 28 February 2019, had a major mental illness, schizophrenia, which is a disease of the mind, that he was subject to a defect of reason (delusional and persecutory beliefs) as a result of the disease of the mind, and although he probably knew the nature and quality of his acts when he killed Mr White-Cotterell, his mental illness so affected him and deprived him of his ability to reason that what he was doing was morally wrong so that the Accused has a defence of mental illness available to him.
Although medical evidence is not essential 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 makes the calling of medical evidence a practical necessary: Tumanako v R (1992) 64 A Crim R 149 at 160. Juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]. A jury (or a Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: Tumanako v R at 161-163; R v Klamo at [44]-[50].
The psychiatric evidence is unanimous that the Accused has available to him the defence of mental illness upon the basis which I have explained by reference to the reports of the expert witnesses. Both the Crown and Ms Wasley for the Accused have submitted that the defence of mental illness has been established on the balance of probabilities in this case.
Having regard to the totality of the evidence before the Court, I am firstly satisfied beyond reasonable doubt that the Accused caused the death of Mr White-Cotterell by means of a deliberate attack upon him which caused his death. To the extent that it is a necessary component for finding a verdict in the case, I am satisfied beyond reasonable doubt that the Accused intended to kill Mr White-Cotterell. So much is clear from the nature and extent of the attack carried out by the Accused.
The Accused has a long-standing history of psychiatric illness. His psychiatric condition is well documented and involved periodic hospital admissions as well as treatment in the community.
The attack by the Accused upon Mr White-Cotterell was completely unexpected and unprovoked and occurred in an entirely ordinary setting where two neighbours had returned in their vehicles to the premises where they lived. The very unexpected and shocking nature of the attack fortifies a conclusion that the Accused at that time was subject to paranoid ideation and distorted thinking. That aspect is strongly supportive of the opinions expressed by the psychiatrists.
I accept the opinions of both psychiatrists reached by reference to the undisputed facts in the case and the Accused's own psychiatric history. I am satisfied, on the balance of probabilities that, at the time of the fatal attack on Mr White-Cotterell, the Accused suffered from a defect of reason from a disease of the mind, namely schizophrenia. I am satisfied on the balance of probabilities that, at the time of the fatal attack, the Accused did not know that his actions in killing Mr White-Cotterell were morally wrong.
In those circumstances, the Accused has discharged his onus and has proved, on the balance of probabilities, the elements of the defence of mental illness.
I will return a verdict of not guilty on the grounds of mental illness as part of the formal orders to be made in the case. [The Court received a number of victim impact statements and counsel addressed on the terms of appropriate orders to be made]

Victim Impact Statements

The Court has received, for the purpose of s.30L Crimes (Sentencing Procedure) Act 1999, victim impact statements from a number of members of the family of Mr White-Cotterell. The victim impact statements have been made by Emily Stevens (the daughter of Mr White-Cotterell), Ruth Lorraine Stevens (the mother of Mr White-Cotterell), Theepa Puvanachandran (the former partner of Mr White-Cotterell) and Louise Staples (the stepsister of Mr White-Cotterell).
Until 2018, victim impact statements could not be made where an Accused person was found not guilty by reason of mental illness. When the law was changed in 2018, the Attorney General, Mr Speakman, in the course of the second reading speech for the Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018, explained the reform in the following way (Hansard, Legislative Assembly, 17 October 2018): "Currently, if a defendant is convicted in normal criminal proceedings, the victim is entitled to make a victim impact statement to the court before sentencing. These are a powerful therapeutic tool that allow victims to participate in the criminal justice process. However, at the moment, if the defendant has been found not guilty by reason of mental illness or unfit but not acquitted, there is no scope for a victim to express the harm they have experienced to the court. By allowing victims of forensic patients to make these statements, all victims of serious personal violence offences will have the opportunity to be heard, regardless of the personal circumstances of the offender, …"
The victim impact statements made in this case exemplify the importance of this change in the law. The Court has before it information provided directly by members of the family of Mr White-Cotterell. It is apparent that he was much loved and a caring man who loved his family. He had expressed understanding and empathy for the Accused, his neighbour, in conversations that he (Mr White-Cotterell) had with members of his family. It appears that others in the apartment complex occupied by Mr White-Cotterell and the Accused may have been less tolerant of the peculiarities of the Accused and his (at times) strange speech and mannerisms which were, undoubtedly, signs of his mental illness.
On this fateful night, it was the caring and humane Mr White-Cotterell who happened to cross paths with the Accused in his psychotic state, with terrible consequences.
It is very difficult for anyone in the community to realistically come to terms with the experience that each of the members of Mr White-Cotterell's family have suffered. Unless one has been in their shoes, it is not possible to duplicate their feelings of loss and anger at what happened.
The involvement of the family members occurs now at a time when there has not been a verdict of guilty or a plea of guilty. In the past, victim impact statements were made before sentencing. Where the verdict is not guilty by reason of mental illness there is, of course, no sentencing. In the case of the Accused, having regard to his long history of mental illness, which has included acts of violence, it seems clear that he will be detained as a forensic patient for a very considerable time. But that is not because of any sentence passed by the Court.
The victim impact statements have emphasised the challenging concept for family members where a relative has died at the hands of a mentally ill person and that person, as a matter of law, is not guilty of the crime of murder. There is no doubt that it was the Accused who caused the death of Mr White-Cotterell. There is no doubt that the Accused would have been found guilty of murder, except for the clear evidence which established the defence of mental illness. It is understandable that family members of persons who have died in these circumstances may feel some upset because of the way in which the law works.
The Court acknowledges the concerns expressed by members of Mr White-Cotterell's family that events like this should not happen again, insofar as human experience and the law are able to guard against it.
Our society functions on the basis that people with mental illness live in the community. At times, this can give rise to a level of risk. The balance of the law is that the risk is managed, in the great part, with people who experience mental illness living in the community. In the overwhelming number of cases, the risk is managed successfully. But when something terrible happens, as occurred to Mr White-Cotterell, it is a reminder to the entire community of the need for everyone (including health professionals and ordinary citizens) to do what they can to protect other members of the community.
The present tragedy is compounded by the fact that Mr White-Cotterell was clearly a person who understood that the Accused was a man with mental health problems and he was caring and understanding in that respect. It is an enormous tragedy that he lost his life in these circumstances.
It is important that members of the family of Mr White-Cotterell have had an opportunity to speak to the Court about the loss each of them has suffered. Each of them has experienced, and will continue to experience, feelings of loss as a result of the death of Mr White-Cotterell.
It is important, as well, that under the system of law as it has applied since 2018, each of the victim impact statements will be provided to the Mental Health Review Tribunal so that body will have them available for the purpose of the exercise of its statutory functions. That Tribunal exercises an important function in a case such as this. That function is essentially protective of the community and the persons living in the community, including the Accused. In exercising its functions, I have no doubt that the victim impact statements which the Court has received will be of considerable assistance to that Tribunal.
To each of the family members of Mr White-Cotterell, the Court expresses its condolences and those of the community of New South Wales for their great loss.

Consequences of Verdict of Not Guilty by Reason of Mental Illness

Section 39 Mental Health (Forensic Provisions) Act 1990 provides that if a person is found not guilty on the ground of mental illness, the Court may order that the person be detained in such place and in such manner as the Court sees fit until released by due process of law or may make such other order, including an order releasing the person from custody, either unconditionally or subject to conditions as the Court considers appropriate.
The Court is not to make a release order under s.39 unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release.
Understandably, counsel for the Accused did not make a submission that there was a foundation existing for an order for release of the Accused. I have already in this judgment outlined the detailed evidence of the Accused's long history of mental illness, including the commission of acts of violence linked to his mental illness, culminating in the tragic events of 28 February 2019. The opinions of Dr Martin and Dr Nielssen concerning the need for long-term treatment of the Accused are pertinent to this issue as well.
If a jury had tried the Accused for murder, it would have been necessary for the Court to inform the jury of the legal and practical consequences of a finding of not guilty by reason of mental illness for the purpose of s.37 Mental Health (Forensic Provisions) Act 1990. This is to ensure that a jury understands the consequences of a special verdict of not guilty by reason of mental illness, including the terms of s.39 of the Act and the role of the Court and of the Mental Health Review Tribunal with respect to the protection of the community including the person who may be acquitted on these grounds.
It is important that the community understands that the effect of the findings and orders which I will make is that the Accused will remain in custody and be held as a forensic patient to come under the supervision of the Forensic Division of the Mental Health Review Tribunal, a body constituted by a judicial member, a medical member and another qualified member: s.73 Mental Health (Forensic Provisions) Act 1990. The statutory scheme surrounding that Tribunal is such that the Accused will not be released unless and until the Tribunal is satisfied that the safety of any member of the public, or of the Accused, will not be seriously endangered by his release: s.43(d) Mental Health (Forensic Provisions) Act 1990. The case of the Accused will be reviewed by the Tribunal as soon as practicable and will be subject to review at six-monthly intervals. If, at some stage in the future, the Accused came to be released it would be on conditions and, if any conditions were breached or his mental condition deteriorated to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained. In cases such as this, it is important that the community understands the practical reality of the orders which are made.
I will shortly make orders which will ensure that all the evidence and material, including the victim impact statements before the Court today, are furnished to the Mental Health Review Tribunal.
I will make an order as well that the reports of Dr Martin and Dr Nielssen, together with a copy of the judgment I am presently delivering, will be provided to Justice Health which, for the time being at least, has day-to-day management of the Accused and his mental health issues within the justice system.

Verdict and Orders

In accordance with s.38 Mental Health (Forensic Provisions) Act 1990, I find the Accused not guilty of the charge of murder on the grounds of mental illness.
In accordance with s.39(1) Mental Health (Forensic Provisions) Act 1990, I order that Benjamin Laurence Moore be detained in a correctional facility, or at such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.
I make the following further directions: 1. The Registrar is to notify the Minister for Health, as soon as practicable, of the making of these orders. 2. 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; (2) a transcript of the trial; (3) a copy of the documents contained within Exhibit A tendered at the trial, including the reports of Dr Nielssen and Dr Martin; (4) a copy of the victim impact statements of Emily Stevens, Ruth Lorraine Stevens, Theepa Puvanachandran and Louise Staples, each of which was tendered in the proceedings. 1. The Registrar is to notify Justice Health, as soon as practicable, of the verdict and orders in this matter and provide to Justice Health copies of the Court's reasons for verdict and orders together with copies of the reports of Dr Nielssen and Dr Martin.

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: 06 November 2020

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Cases Cited (17)