R v Opie

The trial 8With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986 (NSW), Mr Opie's trial was listed to proceed without a jury. On 12 June 2014 he was arraigned before me. He pleaded not guilty on the ground of mental illness as provided for in s 22(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"). 9The sole issue at trial was whether Mr Opie had discharged the onus of establishing, on the probabilities, that he should be acquitted of murder on the grounds of mental illness pursuant to s 38 of the Act. Section 38 provides that a special verdict of not guilty by reason of mental illness must be returned if at the time of the offence the person was mentally ill so as not to be responsible, according to law, for his or her actions at the time the offence was committed. In R v Rodriguez [2010] NSWSC 198 at [33], Johnson J succinctly set out what is required to establish the defence of mental illness: To establish the defence of mental illness, it must be proved upon the balance of probabilities that at the time of committing the acts causing death, the Accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or if he did know it, that he did not know what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is 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: R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190. 10Both the Crown and senior counsel for Mr Opie were in agreement that a special verdict on the basis of mental illness was open and should be returned in this case. 11The defence of mental illness will be made out in this case if I am satisfied, on the balance of probabilities, that at the time Mr Opie stabbed the deceased to the chest he was suffering from a mental illness such that he did not know that it was wrong to act in that way. Although Mr Opie's state of mind at the time he killed the deceased (a state of mind productive of a defect of reason and involving a disorder of the capacity to reason that the act was wrong) must have been one of disease, disorder or disturbance arising from a condition, it does not matter if the condition is temporary or longstanding, curable or incurable (see R v Pratt [2009] NSWSC 1108 at [19]). 12In deciding whether a special verdict should be returned I am obliged to have regard to the legal and practical consequences of a finding that Mr Opie 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 (see 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. 13A compendium of documents, including an agreed statement of facts, witness statements and reports of two forensic psychiatrists, was tendered by consent. Mr Opie was assessed by Dr Richard Furst at the request of his legal representatives on 2 October 2013, and by Dr Stephen Allnutt at the request of the office of the Director of Public Prosecutions on 16 December 2013. 14The Crown provided written submissions which senior counsel for Mr Opie accepted were eloquent of the issues to be decided and provided a reasoned analysis of the facts and the relevant law. No oral evidence was called in the proceedings.

Mr Opie's relationship with the deceased 15Mr Opie lived alone in an apartment block opposite the deceased's premises. The deceased had lived in his premises since he was a child. Mr Opie had lived in his apartment for between seven and nine years prior to the killing. Mr Opie told Dr Allnutt that during that time he had spoken to the deceased not more than ten times. The deceased's son stated that he did not know Mr Opie and had never seen him before. Cem Eryilmaz, who resided in the same apartment block as Mr Opie, had known both men for ten years prior to the killing but stated that he had never seen the deceased and Mr Opie socialising.

Mr Opie's statements to medical staff at Westmead Hospital after the killing and to police following his arrest 16On 29 December 2012 the Psychiatry Registrar at Westmead Hospital assessed Mr Opie. Mr Opie reported that he had stabbed himself and then stabbed the deceased because he was "tormenting him" and calling him names, and had done so for many years. Mr Opie reported that the deceased had been telling other people about him, and that he knew that because of those people's "facial expressions". Mr Opie also reported that he felt someone had been following him for a week prior to the incident, and that he had been given medicines to die. He denied a depressed mood in the preceding weeks or months. The Registrar opined that Mr Opie was paranoid at the time of the assessment and that this paranoia extended to include the deceased. 17On 30 December 2012 Mr Opie was observed to be severely agitated, and thought to be hallucinating or delirious. He said he could not remember stabbing the deceased. He did claim that the deceased "used to tell bad things about him and others and that was his nature". 18On 2 January 2013, whilst still in the intensive care ward at Westmead Hospital, Mr Opie participated in a short electronically recorded interview. When informed that he was under arrest for the murder of the deceased, and when asked if he understood, Mr Opie responded, "No, did he die?". In the interview Mr Opie said that he had an "altercation" with the deceased. When asked if he remembered what happened during the altercation he said: Pretty much, I was very, very low that night and every time he sees me he accuses me of being a poofter and that's what set things off ... I remember yelling at him, I remember trying to kill myself ... I remember thinking I had killed myself. When asked why he tried to kill himself Mr Opie responded, "Because I was so low". He went on to say: ...My mind state just went down over three days and I said I was going to take my life... And as for that old guy well, let's just say a mixture. I didn't realise. I thought I was going to be dead. In fact I was dead. Most terrible news of my life ... Oh hell. I thought I was the one who .... I haven't had any dealings with him. I remember yelling at him. When asked if he had any questions Mr Opie said: ...I'm bloody sorry. Just at this time of year, I've never been this way, terrible ... 19Mr Opie was assessed by Dr Sara Ghaly, consultation-liaison psychiatrist, on 7 January 2013 at Westmead Hospital. He told Dr Ghaly that he could not recall the incident, and had been really low for three days prior to his hospitalisation. In Dr Ghaly's opinion, Mr Opie was in an acute confusional state, consistent with delirium, rendering the history he provided, including his reported memory or amnesia, unreliable. 20Mr Opie was discharged into police custody on 11 January 2013. 21On 16 January 2013 Mr Opie was assessed by Dr Farrar, psychiatrist, at Long Bay Correctional Complex. Mr Opie said that he knew that he had killed someone, but could not recall the offence or the events leading up to it. He said he remembered stabbing himself but did not remember how he got to hospital. 22Dr Furst assessed Mr Opie on 2 October 2013 at Long Bay Correctional Complex Hospital. Mr Opie said he had no recollection of being taunted by or worried about the deceased. He said he had "mad dreams" in hospital and "woke up to a nightmare". He said he had no recollection of stabbing either himself or the deceased. Dr Furst described Mr Opie as logical, with no obvious signs of depression or elevated mood, however he was restricted in his range of affective expression and lacked expression in his speech. He did not consider Mr Opie to be psychotic or suicidal. 23Dr Allnutt assessed Mr Opie on 16 December 2013 at the Metropolitan Special Programs Centre at Long Bay Correctional Complex. Dr Allnutt reported that Mr Opie did not manifest behaviours suggestive of a psychiatric or neurological illness; he spoke in a clear and coherent manner and, while he reported symptoms of depression and anxiety, there was no evidence or active symptoms of mania or hypomania. However, Mr Opie maintained the belief that the Australian Federal Police ("AFP") might be monitoring him, and expressed a belief that there were microphones in the wall of the gaol.

Mr Opie's history as recounted to Dr Furst and Dr Allnutt 24Mr Opie was aged 59 at the time of the killing. He grew up in Dunedin, New Zealand and migrated to Australia in 1998. He has a younger brother from whom he is estranged, and an older brother who had a history of mental illness. When he was 25 or 26 years old, Mr Opie discovered his older brother hanging from a noose in the family home. Mr Opie tried to assist his brother but his attempts failed. Mr Opie described that event as "...the start of the end for me. It tormented me. I was helpless. I had no tools to cut him down". He reported experiencing intrusive images and nightmares relating to his brother's death over many years. 25Mr Opie has consumed alcohol since the age of 17 or 18, increasing his consumption progressively after his brother's suicide up to the killing of Mr Newton. He described himself as a functioning alcoholic. 26Mr Opie reported to Dr Allnutt that he had suffered several head injuries throughout his childhood, including a motor vehicle accident when he was 12 years old for which he required some facial reconstruction. 27Mr Opie described a history of mood fluctuations. At times he described experiencing manic periods when he was "madly enthusiastic", full of energy and drive and requiring little sleep. Those episodes, which lasted for days or weeks, were inevitably followed by periods of depression, accompanied by feelings of being drained, worthless, and having low energy levels like he was "stuck in concrete". 28Mr Opie has been in receipt of a Disability Support Pension since 2005. 29In August 2007 he presented to the Community Mental Health Team at Merrylands. He reported suffering from fluctuating mood which he was self-medicating with alcohol. He was referred to Westmead Hospital for a mental health assessment for possible bipolar affective disorder and mood swings. At that time he was diagnosed with alcohol dependence and a mood disturbance. In September and November 2007 he was diagnosed with bipolar disorder and alcohol dependence. He received psychotherapeutic treatment but was reluctant to take psychotropic medication. Further mental health assessments around that time noted that Mr Opie was suffering from depression.

Mr Opie's recollection of the days leading up to the event 30Mr Opie recounted the period leading up to the killing to both Dr Furst and Dr Allnutt in fairly consistent terms. For some months prior to December 2012 he had believed that the AFP were following him because of his failure to pay tax on income he had received from casual employment. He travelled to New Zealand approximately three weeks before the killing, and whilst there became increasingly concerned that people were following him and that the AFP had communicated with New Zealand police. 31Upon his return to Australia he said his paranoia escalated. He returned to his home unit on occasions in the three weeks prior to the killing but could not stay overnight, returning only to obtain more clothes and alcohol. He told Dr Allnutt that during this time he "deteriorated into a blithering wreck ... all the suspicions were affecting me ... I was paranoid". He described an ATM displaying a message advising that the transaction would not be processed from which he concluded that the AFP had restricted his access to his funds. Mr Opie telephoned a friend and reported hearing a message saying, "You're in deep trouble - there'll be gaol". He told Dr Furst that for days he was "walking, drinking, sleeping out, like a puppet on a string." 32During this period he continued to drink heavily and ate little. He described hearing voices and seeing lights. On one occasion he believed a car was tailing him. He lay behind a fence, feeling terrified, until it drove away. 33During this period Mr Opie described feeling suicidal and taking steps to kill himself, including placing a rope over the rafters in his home. He described feeling "insane", like he had "had enough" and he "couldn't handle life anymore". When examined in October and December 2013 by both Dr Furst and Dr Allnutt he reported having no memory of the events of 22 December 2012 and only remembered waking up in hospital.

Opinions of Dr Furst and Dr Allnutt 34Dr Furst is of the opinion that Mr Opie meets the criteria for a diagnosis of bipolar affective disorder and alcohol dependence. He confirmed that Mr Opie has a lengthy history of depression, periods of elevated mood, and impaired psychosocial function consistent with the diagnosis of a major mental illness, most likely that of a bipolar affective disorder. Dr Furst explained that bipolar affective disorder is characterised by: "...one or more episodes of abnormally elevated energy levels and mood, cognitive disturbance, and one or more depressive episodes. Individuals can also have a mixed state, in which features of both depression and mania occur at the same time. Episodes are typically separated by periods of normal mood. Extremes of mania and depression can also lead to psychotic symptoms including delusions and hallucinations." 35Dr Allnutt is of the opinion that Mr Opie suffers from a late onset psychotic disorder (late onset schizophrenia or schizoaffective disorder), with a pre-existing history of a recurrent mood disorder (probably bipolar affective disorder or recurrent depressive disorder). In Dr Allnutt's view, Mr Opie's chronic alcohol dependence has exacerbated an underlying mood disorder and contributed to the emergence of a psychotic disorder. 36Further, Dr Allnutt is of the opinion that Mr Opie's history of head injuries may have resulted in brain damage and cognitive difficulties, however that has not been the subject of formal neuropsychological testing. Dr Furst agreed that the potential for an underlying organic brain disorder has not been properly explored, but maintained his opinion that Mr Opie's primary mental illness is a bipolar disorder (and/or a late onset psychotic illness such as schizoaffective disorder), being of sufficient severity that further investigation as to any possible cognitive impairment is unnecessary for the purposes of determining whether Mr Opie had a defence of mental illness available to him.

Mental state at the time of the killing 37Dr Furst is of the opinion that at the time of the killing Mr Opie was suffering from a bipolar affective disorder, severe depression and acute psychosis, of sufficient severity so as to have made him unaware of the wrongfulness of his actions in stabbing the deceased and unable to control himself. Dr Furst considered Mr Opie's conduct at the scene in stabbing himself multiple times as consistent with him being mentally disordered. 38Dr Allnutt is of the opinion that at the time of the killing Mr Opie's delusional belief that he was being persecuted by the AFP was active and was exacerbated, at least transiently, by sustained levels of intoxication. In Dr Allnutt's view, in Mr Opie's intoxicated and delusional mental state, he may have had some interaction with the deceased on the day of the killing or before that day, or may have misinterpreted events involving the deceased, as a result of which he incorporated the deceased into his delusional belief system. Whilst Mr Opie's motivation cannot be readily identified, if this state of affairs was present Dr Allnutt is of the opinion that Mr Opie's delusional beliefs provided a transient delusional justification for him to present at the deceased's home and to act as he did. 39Dr Furst opined that there is insufficient evidence as to the effects of intoxication on Mr Opie at the time of the killing to determine if this contributed to his incorporation of the deceased into his delusional belief system. In Dr Furst's opinion, Mr Opie's underlying mental conditions were of sufficient severity as to render him unaware of the wrongfulness of his actions, even were the intoxicating effect of alcohol disregarded. 40At the time of his report in November 2013 Dr Furst was of the opinion that the care Mr Opie was receiving at Long Bay Correctional Complex Hospital was inadequate for his needs, particularly considering the gravity of the charges, the nature of his suicide attempt, and his lengthy history of depression, alcoholism and mental illness. Dr Furst recommends that Mr Opie be transferred to a therapeutic unit to allow for more regular and thorough psychiatric assessments. He also recommends that Mr Opie's mental health be monitored by Justice Health whilst he is in custody, and that he is provided with necessary counselling and medication, including a prescription for a mood stabilising medication and/or an antipsychotic medication. Finally, Dr Furst recommends that if Mr Opie experiences a relapse of depression and mania he will require hospital based care, probably as an involuntary patient under the Mental Health Act 2007 (NSW). I fully endorse Dr Furst's recommendations. Dr Allnutt did not address Mr Opie's ongoing care. 41The Crown prosecutor submitted that I should make orders pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act, that Mr Opie be detained by the Department of Corrective Services until released by due process of law. I am satisfied that those orders should form part of the orders in disposition of the special hearing of this trial.

Orders 42Accordingly, I make the following orders:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of the charge of murder by reason of mental illness is returned.
2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Neil Alexander Opie 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.
3. I direct that the Registrar notify the Minister for Health of these orders.
4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.

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: 20 June 2014