R v Ritchie [2003] NSWSC 864 | Case summary

5 The offender was seen by a consulting psychiatrist, Dr Westmore, in July 2002. Dr Westmore was of the opinion that taking into account the accused's medical and environmental history and assuming the correctness of the accused's history of the circumstances in which he killed the deceased, the defence of substantial impairment of mind was open to him. In December the accused was seen by Dr Skinner, consulting psychiatrist, on behalf of the Crown. Dr Skinner came to a similar view. It was always apparent that the accused was prepared to enter a plea of guilty of manslaughter. The Crown declined to accept such a plea in discharge of the indictment and required the accused to come forward for trial for murder. The position remained the same up to the trial, which took place in August 2003. The jury returned a verdict of guilty of murder. 6 Although the offender pleaded not guilty of murder he made it plain to the jury that he stood by the position taken by his solicitor in the letter to which I have referred, namely that he had killed the deceased with the intention of killing her. The letter was tendered. Dr Westmore and Dr Skinner gave evidence of the offender's admissions to the same effect. The offender gave evidence to the same effect. The only issues for the jury were whether the capacity of the offender to judge whether his actions were right or wrong was substantially impaired by an abnormality of mind arising from an underlying condition and, if so, whether the impairment was so substantial as to warrant his conviction for manslaughter rather than murder. The verdict of the jury is consistent with proof by the offender of the first element of the defence but not the second as well as with the failure to prove either. 7 The defence depended on the evidence of Dr Westmore and Dr Skinner, both of whom tendered their opinions assuming the existence of a number of circumstances. Several of those circumstances were well established by evidence adduced at the trial and not the subject of contest. They may be summarised as follows. 8 The offender's wife left him for his best friend in February 2001. The offender, who was an invalid pensioner, could not afford to keep up the premises in which he and his wife had been living in Merimbula and his removal to the deceased's house in Wollongong was the best solution to his financial problem. 9 The offender was not in good health, having suffered for many years with diabetes. The disease made him liable to bleed excessively even after a small injury and his feet used to hurt. Cataracts severely reduced the sight of one eye and threatened the sight of the other. He was unemployable and had no prospect of gaining income other than his invalid pension. 10 The offender was well aware of the deceased's state of health when he began living in her house. However, whereas he had been insulated by distance from the need to concern himself about it day by day, things changed. Although professional home care and nursing personnel visited the house regularly to attend to the needs of the deceased, the offender found himself to some extent responsible to do things for her. There must have been substantial parts of each day when they were the only occupants of the house. At such times the deceased, understandably, would ask the offender to do jobs for her. At night he was the only one who could attend to her whenever she needed help. She used to summon him by ringing a bell which she kept by her bed. He became anxious about when the deceased might call him and how he could help her. He was exasperated by the sound of the oxygen apparatus the deceased had to use. 11 During the twelve months that the offender lived in the deceased's house she had to be taken to hospital several times. In May she spent more than a week in hospital following a severe attack of angina. I have mentioned the resulting advice. On other occasions her stay was shorter. Sometimes she was not even offered a bed. She and the offender realised that nothing medically could be done for her. Her last lengthy visit to hospital was in January 2002, when she was admitted to Wollongong hospital for a period of nine days. The diagnosis was pulmonary oedema and unstable angina pectoris. Several other conditions were noted, including renal failure, heart disease, diabetes and several other incurable conditions. 12 Both psychiatrists accepted that these events would have weighed heavily on the offender's mind. However, there were other assumed events which could be established only if the offender was truthful and accurate in his history. Both psychiatrists acknowledged that they depended on the accuracy of that history for their diagnosis. They would have reconsidered their diagnoses if they had doubted it. The most important part of the history, it seems to me, was the assertion that the deceased repeatedly asked the offender to kill her and that she did so immediately before he killed her. I shall extract the relevant parts of Dr Westmore's evidence. Presenting a plan of the history leading up to his current legal difficulties (the offender) said: "For the past nine months my mum has been on life support. From June last year and for the last three months of her life she would call me into her room. She would be crying and she would say, 'Geoffrey stop the pain, Geoffrey, stop the pain'. She would say it over and over. She hadn't used oxygen for two weeks. On this particular night she couldn't breathe. She was in terrible pain. I sat and talked with her for twenty minutes and I went back to my room and she started again, 'Geoffrey, stop the pain'. I just couldn't take it any more. I went in and put a pillow over her face. I said 'Mum, I'll stop the pain', and she said, 'Thank you'". … He told me he had lived with his mother for year and when I asked him how they got on he said, "Good, we were good mates. Because of her illness she was stroppy with everyone really, but I knew it was only because of how she was and it was water off the duck's back for me". I then asked him how long he had been thinking about doing this. He said, "I didn't really think about it". He told me his mother was in the St George Hospital in May 2001. On discharge he was driving her back to Wollongong from Sydney and he said, "She said, 'I know I'm on my way out and I don't want to suffer'. She just came up with that". I asked him what he meant by that last statement and he said, "She said, 'Geoffrey, I know I'm on my way out and I don't want to suffer'", that's what she told me. She couldn't have a triple bypass. I then asked him when had he decided to act in relation to his behaviour leading to his mother's death and he said: "The last month. She had a little bell beside her bed. Five days a week she would ring the bell and I'd go in and she'd be crying and say, 'Geoffrey, stop the pain'. This night I just couldn't take it any more. If something could have been done for her, fair enough". I then asked him what other steps could he have taken, rather than the action he did take and he said: "She wouldn't go back to hospital again. She went into hospital on 1 January for one week. She was only home for about two days and she went back in again. They rang me at about 11 o'clock at night to come and pick her up and driving back she said, 'Geoffrey, I'm not going back into hospital any more. They did tests on me all day and they hurt. They told me there is nothing they can do for me, so I'm not going back into hospital'. It was almost nightly she would ring the bell and I'd go into the room and she'd be in terrible pain. I'd rub her hand or her feet to try and get her mind of it. This night I sat up with her for twenty minutes. I went back in and she just kept saying it, 'Geoffrey, stop the pain, Geoffrey, stop the pain'. I just couldn't take it any more". I then asked him about the impact on him of his mother's illness and her distress. He said: "I couldn't sleep. Every night I used to lay there waiting for the bell to ring. I was always worried about her. I was dancing three nights a week, ballroom two nights and rock and roll one night. I couldn't get home quick enough to see if she was okay and every morning when I woke up I'd go into her room expecting she had passed away. From June 2001 every night she went to bed she'd say, 'I pray to God I don't wake up in the morning'. That was every night". I asked him again could he tell me of any other effects his mother's illness had on him and he said: "It was very upsetting, because nothing could be done for her. I was with her in casualty. The doctor told her, 'Your kidneys have almost gone and there is nothing we can do for you, Mrs Ritchie. It's just a matter of time'. It was upsetting for her and me". I then asked him directly about his mood state, was he sad or unhappy and he said: "I was sad all the time. You had to see how she was to appreciate the situation. She had no quality of life. I was sad about it all. I just wish to God she had gone in her sleep, painlessly in her sleep". … I asked him again at the time his mother died, did he think about what he was doing and whether it was right or wrong. He responded by saying, "No, no, I just wanted to stop her pain. I didn't think I was doing the right thing or the wrong thing, I just couldn't stand the, 'Geoffrey stop the pain', I never thought about the rights and wrongs or anything else" I asked him was he emotionally distressed at the time his mother died and he said, "I was emotionally distressed nearly every night when I went in there and she would say, 'Geoffrey stop the pain'. I tried to change the subject for example, I'd talk about weeding the roses or what I was doing at dancing, generally I would just rub her hand". 13 The Crown pointed to a number of pieces of evidence to throw doubt on the reliability of the offender's account. A number of witnesses said that at various times during 2001 the offender told them that he would kill the deceased if she did not die soon and that he wanted to sell her house and use the proceeds to buy premises in Merimbula where he would live. While I accept that the offender said such things I think that all that he was doing was expressing his exasperation about the circumstances that he found himself in. I think that his intent to kill the deceased was formed much later on, perhaps, as he told Dr Westmore, about a month before he acted. 14 There are other pieces of evidence, however, that show that the account the offender gave to the psychiatrists and the Court was not entirely reliable. His description of his movements on the night that he killed the deceased was unimpressive. He said that after he placed the deceased's body in the boot of his car he drove away. He did not know where he went. He suddenly realised that the lights of Sydney were ahead of him and turned around, driving back towards Wollongong. On hearing running water he turned into a place in the bush. On that account he did not plan where to leave the body. In fact it was so well hidden that nobody found it during the three and a half months that elapsed before his solicitor wrote to the Office of the Director of Public Prosecutions. I do not think that he arrived at that particular place by accident. 15 The offender said that he had done those things by about 2:30 or 2:45am and had then driven home. After that he had not left home at any relevant time. Yet I accept the evidence of a neighbour that the offender's car was driving slowly along the street as dawn was breaking at 5:55am. It is impossible to say what the significance of this discrepancy may be, but it does show that the offender was not prepared to be frank about everything that happened. 16 Although the offender spoke to many people about his mother, some of whom he knew only slightly, he never said that she had asked him to end her life. The deceased spoke almost every day to her sister, Mrs Lorenz. They used to see each other frequently and had long telephone conversations. Yet the deceased never said to Mrs Lorenz that she wanted her life brought to an end. 17 The deceased was strict, fastidious and generally uncomplaining. Although she had to see doctors frequently and was frequently prescribed drugs of many different kinds she always refused offers of prescriptions for analgesic drugs. She never complained to Mrs Lorenz about pain. 18 The offender's initial account to the police, maintained until after his arrest more than three months later, shows his preparedness to lie if he thinks it will benefit him to do so.

19 It is for the offender to prove that it is more likely than not that this was a mercy killing brought on by the entreaties of the deceased. I am not so satisfied. I do not think that the deceased asked the offender to kill her. I do not think that his mind was affected by repeated entreaties. I am not satisfied that the offender's capacity to tell right from wrong was impaired. I think that he killed the deceased in order to bring to an end a state of affairs he found intolerable but I am satisfied that he knew that it was wrong to do so. 20 I am not satisfied that the offender killed the deceased just to get his hands on her estate. I think that he did so in reaction to circumstances he felt unable to control or escape. His offence was hot-blooded. It was made much worse, however, by the vulnerability of the deceased and because it constituted a gross breach of the trust she placed in him. 21 The offender was dealt with in 1987 for ten counts of larceny as a servant, but those offences are too old to sound in the sentence. In fact I think that he should be dealt with as a person not having any significant criminal record. There is a degree of remorse, tempered by his failure to tell the truth in every respect. His prospects of rehabilitation seem good and I think that he is unlikely to offend again. He is entitled to consideration for his eventual admission that he was responsible for the death of the deceased, which amounted to an important pre-trial disclosure, and for the economical and sensitive way in which his counsel conducted his trial. 22 I take into account also that the offender has disentitled himself to receive any part of the deceased's estate. 23 The offender is getting on in years. His health is poor and cannot be expected to improve. His hearing, too, is poor. He will serve his sentence harder because of those matters. 24 By the time the offender is released from gaol he will be elderly and probably not in good health. He will need to settle himself in suitable accommodation. He will live on an aged or invalid pension. It will not be necessary for him to spend any extended period of time on parole, for I do not think that he will present any particular trouble or concern for the parole authorities. 25 A Victim Impact Statement was tendered on behalf of Mrs Lorenz. The effect upon her of the death of her sister was made worse by the anxiety of her uncertainty during the time between death and recovery of the body. She herself has not been well and these events have had a serious effect upon her health. The Court cannot take these matters into account in determining the sentence, of course, but it is appropriate to extend sympathy to Mrs Lorenz and all the other family members and friends who have been affected by the deceased's tragic death.

R v Ritchie

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Cited By (2)