R v Paul William MUNDY

Supreme Court of NSW|2012-12-06|Before: Rothman J

Judgment 1HIS HONOUR: On 14 February 2012, Paul William Mundy, (hereinafter "the accused") was charged on indictment with the murder of his wife, Michele Ann Mundy, and was arraigned before the Court, as presently constituted, on 4 December 2012. 2The foregoing trial is the subject of an election for trial by judge alone. That election was filed in Court on Monday 3 December 2012, leave having been granted by the Court (as presently constituted), both as to filing in Court and filing out of time (namely, less than 28 days before the fixing of the trial). The application for a judge alone trial was granted. This judgment deals with the verdict for the charge of murder and consequential orders.

Charges 3As previously stated, the accused was arraigned before the Supreme Court and was charged, on indictment, that on 2 February 2011, at Cowra in the State of New South Wales, he did murder Michele Ann Mundy. The accused pleads not guilty by reason of his mental illness, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990.

The circumstances of the criminal act 4The facts of this case are uncontroverted and uncontroversial. Evidence has been adduced by the filing of statements, including the statements of police officers involved in the crime scene investigation. 5On 1 February 2011, the accused was residing in his flat above his butcher shop at 42 Kendall Street, Cowra. On the evening of that day, the deceased left her place of employment, indicating to witnesses an intention to travel to Cowra to spend the night with the accused, before travelling to her mother's the next day. 6At or about 8.30pm on 1 February 2011, the accused spoke with his son, Casey, by telephone. At the time of the call, the deceased, Casey's mother, could be heard in the background. 7At or about 4.00am, the deceased's car was seen on the main bridge of Cowra, which crosses the Lachlan River. A man generally fitting the description of the accused was seen in the area. I bear in mind the warnings associated with identification evidence, which includes evidence that a person "resembles" another. 8The vehicle was still there at or about 7.15am on 2 February 2011. 9At or about 8.15am on Wednesday 2 February 2011, having received a report as to the presence of the car on the bridge and its condition, detectives attended the rear of the accused's butcher shop. The butcher shop was in darkness and the detectives walked up the staircase to the landing of the unit. The unit too was in darkness. Given the fact that neither the accused nor the deceased could be located and the unusual circumstances of the state of the unit and the motor vehicle, police decided they should gain access to the unit. On entering the unit, they discovered the deceased's body. 10The deceased was lying on her back on the eastern side of the bed. She was wearing a blue t-shirt. She had suffered several severe head injuries. These injuries were on the left and right sides of her head, her forehead and her face. There was a large amount of blood on her head and face. The blood had partially covered her t-shirt. The pillow under her head was covered in blood, and there was a pool of blood on the bed to the left of her head. Located in this pool of blood were the following items: a red-handled knife with the blade missing, a black-handled hammer, and a white plastic alarm clock. 11There were a number of notes placed on or near the body. The notes had a "Best Western" crest. Written on the notes were the names "Dean", "Asley" (sic), "Tomson" and the letter "E", which may have formed the initial to the name Tomson. According to the agreed facts, Exhibit B in the proceedings, these notes were written by the accused and had his fingerprints on them. 12The blade of the kitchen knife, from which the handle had been broken, was imbedded in the chest of the deceased. 13At or about 4.30pm on 2 February 2011, the accused was found some kilometres downstream from the bridge, to which earlier reference has been made. 14Once in an ambulance, the accused told Detective Senior Constable Melissa Prescott that he had gone to the bridge for what he had done. When asked what he had done, the accused replied: "I injured Michele." He also said he did not know what he had done to Michele, but that he had injured the deceased because they had problems. 15During a meeting with Dr Stephen Allnutt, forensic psychiatrist, the accused said that he had woken up at 3.00am and that "everything fell on top of [him]." He had been having thoughts for some period and "the whole thing was 'spinning in my head all the time, her, the affairs, the money, it just never stopped, the less sleep I got the worse I got'". When he awoke on the night in question, he described to Dr Allnutt, (and repeated in Dr Allnutt's notes), the events in question. Those notes are in the following terms: "He said that he went to bed with his wife on the night of the alleged offence; there were no arguments that night but he had been thinking that 'he had had enough of all the goings on and the pressure', but still had not spoken to his wife about it, he saw no point in having an argument; he expected if he brought these matters up she would deny them; he was feeling miserable when he went to bed. He said he woke up that night at about 3.00am; he said at that point 'everything fell on me', 'the whole thing, the big tax bill, the affair, the money going missing'; he thought 'I had enough', 'I couldn't lay there, everything was spinning'; he got up and went to get a hammer because at that point he decided that he was going to kill her; he wanted to kill her 'because of all the pressure I had and what she'd been doing'. At the time he was aware that it was wrong but stated 'I just had had enough of everything', 'I just wanted to end everything'; he said at the time he saw no other option open to him; he got the hammer from the kitchen; he returned to the bedroom; he said 'everything was just spinning', 'I had enough of everything'; he hit her with the hammer on the head a couple of times; he could not recall his thoughts at the time; he then got dressed and went to his car and drove to the bridge. When I [Dr Allnutt] sought clarification he said he first thought of killing her when he woke up; at that point he decided to kill himself and his wife and that was his intention. On the way to the bridge he said he was focused on suicide and never thought about what had happened to his wife." (Exhibit 1, report of Dr Stephen H Allnutt, 15 April 2012 at page 4.) 16I find proved beyond a reasonable doubt that the deceased died from the wounds inflicted deliberately by the accused who, at the time of the infliction of those wounds, intended to kill the deceased. Putting aside the issues associated with the mental condition of the accused, the Crown has proved beyond a reasonable doubt all of the elements that would otherwise satisfy the Court of each of the elements of the crime of murder.

The accused's history relevant to mental state 17According to the evidence of the accused's brother, Gary, their mother suffered from delusions relating to their father having an affair and would make repeated accusations and/or speak about that issue. The mother would set traps around their house and try and say that someone was in the house and that their father was having an affair. I state that history only for the purpose of dealing with the suggestion, often made, that mental health issues are partly genetic. 18The accused acted similarly. For some period he acted on irrational and delusional beliefs that his wife was having an affair with various persons. 19That he held those beliefs over a significant period of time is beyond doubt. He expressed the view to a number of people on a number of occasions unrelated to any occasion in which it would be to his advantage to feign delusional conduct. The beliefs were so firmly held by the accused that, at his insistence, the deceased attended hypnotherapy to be asked questions about her fidelity. Under hypnosis, the deceased confirmed that no affairs or sexual relationships were undertaken outside her marriage to the accused. 20One instance bears repeating. The accused rang one of the alleged paramours of the deceased and spoke to him on that person's landline. The person lived in Canberra, some significant distance from the accused's residence. Nevertheless, the accused put to this person that he was having an affair with his wife and that he was outside the accused's residence at the very time he was speaking with him in Canberra. How, rationally, one could speak to a person some significant distance away on a landline and accuse the person of being outside their premises points to the delusional nature of the accused's beliefs. 21The evidence of these beliefs and these accusations, and the lack of any basis for such beliefs, is overwhelming. The history of psychiatric issues needs to be summarised. 22In September 1989, at 33 years of age, the accused admitted himself to Canberra Hospital (formerly Woden Valley Hospital) for mental health issues and was diagnosed in January 1990 as having paranoid delusions. In January 1990, the accused was again admitted to the Hospital with depression and suicidal ideation/mood. He was diagnosed with endogenous depressive to psychotic features. Medication was prescribed. 23Police records also disclose that the accused was receiving psychiatric treatment from Dr Coombes at the Young Community Health Centre and that on 20 February 1991 he was again voluntarily admitted to the Calvary Hospital for further psychiatric treatment. 24The accused believed his wife was having an affair. The accused believed his wife was having an affair on a number of occasions. He believed that in relation to his wife's relationship with a brother-in-law, a nephew, two bikies as well as beliefs that his wife was having "orgies" in his home. His brother opined that the accused had "all [of his] life ... been dealing with a mental illness ... He would come good and I would think he was all right but then all of a sudden he would be going down hill again. I could always tell when he was going down hill by the way he would say things and the way he would behave." (Exhibit A, Tab 15, paragraph 19.) 25As at February 2011, the accused's brother said: "About 3 months ago [the accused] said something to me which made me think he was going down hill again. He was talking about his other brother-in-law [who] ... is married to [the deceased's] sister ... [they] were great mates when they were younger. On this occasion [the accused] said to me over the phone that he thought that something was happening between [the deceased and the brother-in-law]." 26The accused's brother refers to this delusion occurring over some significant period and being mentioned as late as a few weeks before 9 February 2011 (the date of the statement to police) with a reference to the existence of "orgies". 27The names on the notes, to which reference has been made, are the names of persons, as earlier stated, whom the accused suggested were in relationships with his wife, the deceased. 28The psychiatric issues, of which evidence has been adduced in these proceedings, are, on the balance of probabilities, long standing.

Psychiatric opinions 29The accused, who bears the onus of proof on a balance of probabilities on the question of mental illness, has tendered and relies upon the psychiatric report of Dr Allnutt. Dr Allnutt repeats the circumstances of the incident of 2 February 2011 and the delusional beliefs of the accused over some period up to that time. Dr Allnutt expresses his opinion in various parts and I extract the following: "Current Clinical Issues He had been in gaol since his arrest; he had recommenced medication almost immediately after his incarceration and then saw a psychiatrist who had increased the dosage. By the time that he saw me he said he felt 'doped up'; his mood was generally flat and depressed; he was complaining of tinnitus but stated that the tablets were helping his depression; he woke up but was able to get back to sleep; he had reasonable appetite; his energy levels were diminished; he had difficulty concentrating; his self esteem was generally low and thought himself as 'hopeless'; he was having some pain in his joints and his motivation was generally poor; he maintained little interest in activities and found little pleasure in activities; he denied suicidal thoughts. He denied that he experienced any panic attacks or anxiety attacks. He was not experiencing any significant perceptual disturbances such as voices, visions, tastes or smells as these had been improving, but he continued to hear buzzing in his ears and he continued to think that he was being monitored especially when he spoke on the phone, not when off the phone; he was not receiving messages from the TV, the radio or the newspaper but continued to believe that his wife had had affairs and orgies and had taken money from him; he denied any thoughts of external control. He had not abused any illicit drugs or alcohol since his arrest. ... Previous Psychiatric, Family, Medical and Substance Abuse History There was a positive family history of suicide. ... He had never abused illicit or recreational drugs ...." 30Dr Allnutt provided a background history, which I do not recite. It detailed earlier admission and psychiatric difficulties dating from 1989. 31Dr Allnutt continued in his report with the following comments: "OPINION Re Psychiatric Illness At the time that I saw your client he was manifesting symptoms consistent with a significant depressive episode characterised by a depressed mood with disturbances in sleep, appetite, energy, concentration, poor self esteem, a sense of hopelessness, loss of interest in activity and loss of capacity for pleasure; there was no evidence of anxiety or suicidal ideation, plan or intent. He was also manifesting persistent symptoms of psychosis in the form of a persisting delusional belief that his wife had engaged in orgies and affairs with his brother-in-law and taken his money .... ... Overall in my view your client manifests a constellation of psychotic and depressive symptoms; it is difficult to clarify the diagnosis but it is probable that he has a chronic psychotic disorder, likely a delusional disorder with delusions of infidelity with associated significant depressive symptoms given the nature of the delusions; differential diagnosis would include a psychotic depression. ... Re Mental State at the Material Time that the Alleged Offending Occurred Based on the information provided, at the material time of the alleged offence your client had been married to his wife for 34 years in a reasonably stable marriage. Mental Illness Defence At the material time of the alleged offence he was taking antidepressant medication; he was not abusing any recreational drugs but he was drinking about six schooners of beer a week; but at the material time that the alleged offence occurred he denied that he was intoxicated. In the time leading up to the alleged offence your client developed depressive symptoms consistent in my view with a major depressive episode and associated with this he was manifesting delusional beliefs, predominantly delusions of infidelity that his wife was having 'orgy parties' with his brother-in-law (a delusional belief that he had maintained in 1990 at a time that he had previously been diagnosed with endogenous depression with psychotic features); there was also paranoid ideation that he was under surveillance by Police consistent with paranoid delusions; thus overall at the material time that the alleged offence occurred your client was suffering a 'disease of the mind', that being either a delusional disorder with secondary depression as a consequence of his belief of his wife's infidelity associated with the emotional distress in relation to that, or a depressive disorder with secondary emergence of delusions consistent with a psychotic depression; his mental disturbance was severe enough for him to develop strong suicidal ideation and associated with this, more proximal to the time of the alleged offence homicidal ideation involving his wife as a solution to his circumstances. Thus at the material time that the alleged offence occurred there are reasonable grounds to conclude that your client was suffering a 'defect of reason' that is that he had a significant impairment in his capacity to engage in rational decision making with regard to his circumstances. However I do not believe that he lost capacity to understand the nature and quality of his actions, that is I believe he maintained capacity to understand that if he utilised a weapon he could injure his wife and potentially kill her. The issue in this case is whether or not he lacked capacity to know the wrongfulness of his actions - by the time of the alleged offence your client was experiencing significant depressive symptoms consistent with a major depressive episode; he likely viewed his future in nihilistic and negative terms; he felt himself to be burdened and persecuted by his circumstances and believed his wife to have been unfaithful to him. With this psychotic state of mind, having woken from sleep, he came to see his behaviour as the only alternative, believing himself to have no option but to act in a drastic manner and, relatively impulsively decided to kill his wife and then himself; ... it appears that he saw killing himself and his wife as the only viable option and determined to take that course of action when he attacked his wife with a hammer and subsequently made a suicide attempt. In my view, while there are elements to suggest an awareness of the wrongfulness of his actions I believe his mental state was of a nature [and] severity that, on balance, he would have unlikely to have been able to reason about the matter of wrongfulness with a moderate degree of sense of composure; his delusional belief about his wife's infidelity and his sense of hopelessness of his situation provided him with justification as a consequence of his disease of the mind; and on this basis there is a relatively high probability that a defence of mental illness could be successful." (Emphasis added.) 32Without repeating all of the details, it is necessary to extract some part of the psychiatric report of Dr Bruce Westmore. Dr Westmore was qualified by the Crown and reported on 18 June 2012. Dr Westmore opined: "In my report, 7 May 2012, I indicated that the provisional diagnosis was that Mr Mundy suffered a Major Depressive Disorder with psychotic symptoms. I noted that the condition appeared to have responded well to medication and, when I examined him, his mood was within the normal range. I noted some limited insight. The additional collateral histories provided by witnesses would support the proposition that [the accused] suffered delusional beliefs leading up to the homicide and that these delusional beliefs incorporated his wife. When he was incarcerated, the Justice Health file indicates that he was diagnosed as suffering from a Major Depressive Disorder and a Delusional Disorder. He was treated with appropriate medication and he responded well. [The accused] was on the balance of probability suffering from an acute psychotic illness at the time of the homicide. He was suffering a disease of the mind, which would have totally deprived him of the capacity to know or understand that he should not commit the act against his wife. I believe he was delusionally driven and he would have available to him the defence of mental illness." (Emphasis added.)

Consideration and orders 33Given that the accused is currently medicated I consider that the accused is fit for trial. There is no suggestion that he is not or would not have been. 34I accept the opinions of Dr Westmore and Dr Allnutt. To the extent that there are differences in the opinions, I prefer the opinion of Dr Westmore and the conclusion last mentioned. 35On the evidence before the Court, there can be no doubt that the accused suffers from a disease of the mind which could be described in a number of ways, but includes a major depressive disorder and a delusional disorder. I accept that at the time that the accused committed the acts that gave rise to the charge of murder the mental illness from which he was suffering deprived him of the capacity to know or understand that he should not commit the act against his wife. Each of the experts are of that view and the Court accepts that opinion. The disease is permanent, but capable of treatment by medication. 36As previously mentioned in passing, the onus of proving a mental illness defence for the crimes charged lies on the accused on the balance of probabilities: Mizzi v R [1960] HCA 77; (1960) 105 CLR 659. I accept, on the balance of probabilities, that the accused did not understand that what he was doing was wrong: R v McNaghten (1843) 8 ER 718; R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 188-190. The accused was, at the time of the acts in question, unable to think rationally. 37I am also satisfied, as previously stated, beyond reasonable doubt, on the material and evidence before the Court, that, but for the defence of mental illness, the accused would be guilty of the offence of murder. 38Each of Dr Allnutt and Dr Westmore expressed the opinion that the accused had a defence of mental illness to the charge and, as is clear from the foregoing, I accept those opinions and independently come to the view, on the basis of the expert opinions and the history and circumstances of this matter, that the accused has a defence of mental illness. 39I hasten to add, most properly, the Crown on reviewing the evidence and particularly the opinion of the psychiatrist qualified by them, submitted "the appropriate verdict is one of not guilty by reason of mental illness". 40Once more, the evidence before the Court makes clear that better treatment of the mentally ill is an essential element in dealing with the tragic circumstances that occurred on this occasion. The family of the deceased, who are mostly also family of the accused, have suffered a huge loss that cannot be replaced. That loss has been occasioned because of the mental illness suffered by the accused, for which he was medicated. Unfortunately, he had ceased taking his medication. A greater knowledge within the community, and a greater capacity to intervene in these situations, together with a greater preparedness to do so, would obviate tragedies of this kind. 41Pursuant to the terms of s 37 of the Mental Health (Forensic Provisions) Act 1990 I take into account (or explain to myself) the findings that may be made in the circumstances of a case relating to the accused being mentally ill and the legal and practical consequences of such a finding. In particular, I take into account the existence and composition of the Mental Health Review Tribunal and its functions with respect to forensic patients. I note, particularly in circumstances where these events arose from a failure to continue to take medication, that the Tribunal may make an order for the release of a person detained in accordance with s 39 of the foregoing Act only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person and any member of the public will not be seriously endangered by the person's release. 42As a consequence of the findings of fact in this matter and the findings of the mental state of the accused in this matter, the Court determines that there should be a finding of a special verdict, namely, that the accused, Paul William Mundy, is not guilty of the charge that he murdered his wife, Michele Ann Mundy, on 2 February 2011 at Cowra, by reason of mental illness. 43As a consequence of that verdict, the Court makes and enters the following orders: (i)Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty of the charge of murder by reason of mental illness; and (ii)Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Paul William Mundy be detained in such mental health facility as the Mental Health Review Tribunal may determine until released by due process of law.

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 December 2012

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