R v Rodriguez

LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990

Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v M'Naghten (1843) 8 ER 718 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 R v Pratt [2009] NSWSC 1108 CASES CITED : Lucas v The Queen [1970] HCA 14; [1970] 120 CLR 171 Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 R v Klamo [2008] VSCA 75; (2008) 18 VR 644 Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 R v Hall (1988) 36 A Crim R 368

PARTIES : Regina (Crown) David Regan Rodriguez (Accused)

COUNSEL : Mr P Lynch (Crown) Mr CJ Bruce SC (Accused)

SOLICITORS : Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 JOHNSON J: On 15 March 2010, the Accused, David Regan Rodriguez, was charged, by way of indictment, with the murder of Michael John Corkhill on 27 June 2009 at East Lismore in the State of New South Wales. He entered a plea of not guilty to that charge. 2 On 3 March 2010, the Accused had signed a form of election under s.132(1) Criminal Procedure Act 1986 electing to be tried by a Judge alone. He stated that, before making that election, he had sought and received advice in relation to the election from Mr Hugh Van Dugteren, solicitor. Mr Van Dugteren acts as the solicitor for the Accused in connection with these proceedings. I am satisfied that, before making the election, the Accused obtained advice in relation to the election from an Australian legal practitioner: s.132(1)(b) Criminal Procedure Act 1986. On 9 March 2010, the Director of Public Prosecutions consented to the trial of the Accused proceeding before a Judge alone. 3 Section 133 Criminal Procedure Act 1986 provides that a Judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a Judge in such a case must include the principles of law applied by the Judge and the findings of fact on which the Judge relies. If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

Issues at the Trial of the Accused 4 At the commencement of the trial, Mr Bruce SC for the Accused, informed the Court that the sole issue in the trial concerned the defence of mental illness. 5 By consent, the Crown tendered statements, reports and other documents (Exhibit A). Amongst these documents were reports dated 17 August 2009 and 19 January 2010 of Professor David Greenberg, forensic psychiatrist. In addition, the Crown tendered the DVD of an electronically recorded interview (Exhibit B) between investigating police and the Accused conducted in the early hours of 28 June 2009, not long after the events which caused the death of Mr Corkhill. 6 The case for the Accused took the form of reports dated 28 August 2009 and 22 January 2010 by Dr Olav Nielssen, forensic psychiatrist (Exhibits 1 and 2). 7 Having regard to the opinions expressed in the tendered reports, neither the Crown nor Mr Bruce SC wished to adduce oral evidence from, or to cross-examine, either of Professor Greenberg or Dr Nielssen. 8 The burden of proof lies on the Crown to establish beyond reasonable doubt each element of the offence of murder. The elements which the Crown must prove in this case are that:

(a) Michael John Corkhill, the deceased, died as a result of injuries;

(b) the injuries were inflicted by the deliberate acts of the Accused; and

(c) at the time of doing the acts, it was the intention of the Accused to kill or to inflict grievous bodily harm to Mr Corkhill. 9 Mr Bruce SC submitted that the Court could readily be satisfied beyond reasonable doubt that each of these elements had been established in this case, with the evidence establishing to the requisite standard that the Accused possessed, at the least, an intent to inflict grievous bodily harm at the time when he inflicted injuries to the deceased. 10 It remains necessary for me to make findings of fact before moving to the defence of mental illness.

Findings of Fact 11 The Accused was born in August 1980. In June 2009, he was 28 years of age. The Accused has a history of mental illness extending back, at least, to May 1998 when he was admitted to the Lismore Base Hospital in a floridly psychotic state. Since 1998, the Accused has been admitted as a psychiatric inpatient on a number of occasions and has received treatment, including electro-convulsive therapy. He has a history of illicit substance abuse including amphetamines, LSD and cannabis. 12 In his report of 19 January 2010, Professor Greenberg sets out a history of the Accused's diagnosis and treatment for mental illness since 1998. Professor Greenberg examined a range of primary documents and records of the North Coast Area Health Service, Lismore Base Hospital, Community Mental Health records and records of the Housing and Accommodation Support Initiative ("HASI") for the purpose of preparing his report. Mr Bruce SC agreed that Professor Greenberg had summarised accurately the contents of these records, subject to two typographical errors concerning dates (T14-15, 16 March 2010). 13 It is apparent from Professor Greenberg's report that acts of violence and threatening conduct on the part of the Accused were frequently associated with his admissions for psychiatric treatment since 1998. Professor Greenberg observed that the Accused has a history of major psychiatric illness, namely a schizo-affective disorder, dating back to 1998, with at least 13 admissions to various psychiatric hospitals having occurred in that period, 11 of which have been to Lismore Base Hospital. 14 Since at least August 2007 (if not earlier), the Accused had been a client of HASI. The HASI program is part of the services provided by On Track Community Programs Inc, commonly referred to as "On Track", a not-for-profit community organisation that provides services and support to people with disabilities, mental health issues and anyone who is generally socially disadvantaged. The service catchment area for "On Track" extends from the Queensland border (at Tweed Heads) to Port Macquarie in the south. In 2007, "On Track" took over a small organisation in Lismore known as the Mental Health Accommodation Rehabilitation Service ("MHARS"). 15 Since early 2009, the Accused had been in a relationship with Ms Zeeta Kennedy, a person also affected by mental illness and a HASI client. 16 In June 2009, the Accused was living at 1/18 Marlyn Avenue, East Lismore, accommodation provided by North Coast Community Housing. Ms Kennedy lived between that address (with the Accused) and the "On Track" refuge at 103 Wyrallah Road, East Lismore, which provided 24-hour care service. 17 Mr Corkhill was born in August 1960 and was 48 years old at the time of his death. Mr Corkhill was a staff member of MHARS, and was retained when the operation was taken over by "On Track" in 2007. He was regarded by his employer and his peers as a capable, caring and very professional employee and a gentle person. Mr Corkhill had a diploma in theology and a background in the military police. Since May 2004, he was employed as a permanent part-time employee as a refuge worker, and then a HASI worker. In that capacity, Mr Corkhill had contact with the Accused and Ms Kennedy and other persons who were HASI clients who benefited from the services provided by "On Track". 18 The Accused's 13th admission saw him admitted to Richmond Clinic (the Adult Mental Health Inpatient Unit at Lismore Base Hospital) on 27 May 2009, where he remained until 23 June 2009. According to relevant records, it was reported that, prior to admission, the Accused had been fighting with a neighbour and was not sleeping. The Accused had struck a member of the public in the street with a cricket bat. In addition, he was expressing paranoid thoughts about his girlfriend's infidelity. During his admission, it was noted that he was using standover tactics towards fellow patients at the Unit, from which he was discharged on 23 June 2009. The Accused was collected from the Richmond Clinic by Ms Roberta Brookes, a HASI support worker. The Accused appeared to Ms Brookes to be responsive about starting a fresh recovery plan. 19 According to the statement of Mr Peter Mitchell, Mental Health Support Worker with HASI, the Accused had been prescribed a fortnightly injection of Haldol (100 mg) and daily morning and nightly oral doses of Lithium (600 mg tablets). 20 On 25 June 2009, Mr Mitchell and Ms Brookes met with the Accused at 1/18 Marlyn Avenue, East Lismore to begin a new recovery plan. 21 At 10.35 am on Saturday 27 June 2009, Mr Mitchell attended 1/18 Marlyn Avenue, East Lismore and collected the Accused and Ms Kennedy and took them (at the Accused's request) to various shops and to the beach at Byron Bay, and then to a coffee shop. They returned to 1/18 Marlyn Avenue, East Lismore at about 1.30 pm and Mr Mitchell helped the Accused to install an extendable clothesline. Mr Mitchell left at about 2.45 pm. 22 At 4.30 pm on 27 June 2009, Mr Corkhill was rostered on for duty at the refuge at 103 Wyrallah Road, East Lismore. At some point in the early evening, Mr Corkhill drove to 1/18 Marlyn Avenue, East Lismore with the intention of giving Ms Kennedy her medication, which had been left in the refrigerator at the Wyrallah Road refuge. 23 The evidence demonstrates clearly that the Accused was in an exceptionally poor mental state on the evening of 27 June 2009. Once at the Accused's premises, it is apparent that an argument commenced between the Accused and Mr Corkhill. At about 7.53 pm, neighbours could hear the Accused's raised voice, with Ms Kennedy also heard to be screaming out. It is apparent that the Accused, in a delusional state, believed that Mr Corkhill was there to kidnap Ms Kennedy. The Accused's disordered thought processes involved a range of confused allegations concerning Mr Corkhill's sexuality and that he proposed to abduct Ms Kennedy. At some point, Mr Corkhill walked to the front porch area of the unit and was followed by the Accused. The Accused punched Mr Corkhill to the face and body a number of times and continued to assault him. The evidence indicates that the Accused was a powerfully built large man and that Mr Corkhill was of smaller build. During the course of the attack by the Accused on Mr Corkhill, Ms Kennedy fled the unit. The attack upon Mr Corkhill included blows struck with the Accused's fist, then stomping on him as he lay on the ground. At some point during the attack, the Accused used a broom handle and a knife to stab the deceased. The Accused wrapped a wire coat hanger around the lower face of the deceased. When ambulance officers arrived, they observed Mr Corkhill lying on the ground with the wire around his neck and with various wounds to the body. It is clear that a savage, sustained and multi-faceted attack had been carried out by the Accused on the deceased. 24 At 8.18 pm, Ms Kennedy (in a distressed state) approached a taxi driver in the car park of the East Lismore Bowling Club. She got in the taxi and said words to the effect "My friend is on edge and saying that he is going to kill someone. I need to get there to settle him down". The taxi travelled to Wyrallah Road. Ms Kennedy got out of the taxi and entered the refuge. She called out for the nurse and said "Regan has attacked Michael. He has got him on the ground and is stomping on his head. There is blood coming out of Michael's head, there is blood everywhere". Another resident of the refuge made a "000" call for an ambulance and police to attend the unit at 1/18 Marlyn Avenue, East Lismore. 25 At 8.20 pm, the Accused walked to premises in Paunelle Avenue, East Lismore, and knocked on the kitchen window. The occupiers of these premises (including Mr Adam Fletcher) did not know the Accused. The Accused told Mr Fletcher "There is a dead body down the road. Tell the police my name is David Rodriguez and there is a homosexual guy trying to take my girlfriend this morning. Now there is a dead body down the road. Ring the police". Mr Fletcher telephoned the Lismore Police, who could hear the Accused talking in the background. Whilst the police were still on the telephone to Mr Fletcher, the Accused said "The guy has barbed wire around his throat, deep cuts into his kidneys and all bleeding. I did it. I committed the felon and I want the police here". 26 Police arrived at Paunelle Avenue, East Lismore, soon after 8.20 pm and the Accused was observed on the street. The Accused was arrested and made certain admissions to police. 27 Police attended 1/18 Marlyn Avenue, East Lismore and spoke with ambulance officers. Mr Corkhill was observed lying on the front porch area of the unit. He had a number of wounds to his face and torso and appeared to have wire around his neck. He also had a broom handle protruding from one of these wounds. The wooden handle appeared to have been snapped off another piece of wood lying near the victim's feet. A broken knife was found lodged in the deceased. 28 The post-mortem examination revealed extensive injuries to the deceased, including a fractured skull and numerous contusions. The contusions were found to be consistent with fist blows, while the fractures were consistent with kicking or stomping while the head was most likely resting on the ground. Stab wounds were observed. As the coat hanger was around the face and not the neck, it was concluded that (whatever had been the intention of the Accused) it had not contributed to death. The cause of death was identified as "blunt trauma to head and stab wound to chest". 29 At 1.50 am on 28 June 2009, an electronically recorded interview was undertaken by investigating police with the Accused, in the presence of a support person from "On Track". The DVD of the interview was played at the trial. It provided stark and near contemporaneous evidence of the thought processes of the Accused soon after he had killed Mr Corkhill. That the Accused's thought processes at the time were delusional is borne out by the words spoken by him in the interview and his demeanour. 30 I am satisfied beyond reasonable doubt that each of the elements of the crime of murder referred to at [8] above have been established in this case. I am satisfied beyond reasonable doubt that the Accused intended to kill Mr Corkhill at the time of the attack. 31 Accordingly, the remaining issue is whether the defence of mental illness has been established.

The Defence of Mental Illness 32 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] HCA 77; (1960) 105 CLR 659 at 664-665. 33 If it appears that the Accused was mentally ill at the time when he committed the relevant acts, a 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 R v M'Naghten (1843) 8 ER 718. Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. 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: The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190. 34 The relevant principles were summarised helpfully by RA Hulme J in R v Pratt [2009] NSWSC 1108 at [19]-[21]: "19 In relation to the concept of a 'disease of the mind' which produces such a defect of reason, the law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition. The condition may be temporary or of long standing. It does not matter whether it is curable or incurable. It must result in the function of the reason, memory or understanding of the person being thrown into a state of derangement or disorder. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what she was doing, in that she did not know the physical nature or quality of her acts, or did not know that those acts were wrong, that is, wrong according to the ordinary standards of reasonable people in our community.

20 As to whether the accused did not know the acts to be wrong, the question is whether the accused could be said to know, in the sense of appreciating or understanding that the acts were wrong, if through a disease, disorder or disturbance of the mind she could not think rationally of the reasons which, to ordinary people, would make that act right or wrong.

21 A final matter to observe is that if through a disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure, it would be open to find that she did not know that what she was doing was wrong."

The Psychiatric Evidence 35 Professor Greenberg examined the Accused at the Long Bay Prison Hospital on 12 August 2009, at the request of the presiding Magistrate at the Lismore Local Court. The Accused had been transferred to the Long Bay Prison Hospital on 5 July 2009 pursuant to s.55 Mental Health (Forensic Provisions) Act 1990 and remained in that mental health facility (under s.56 of that Act) as a result of a report dated 29 July 2009 by Dr Chen, psychiatric registrar. 36 Professor Greenberg's report of 19 January 2010 was prepared at the request of the Crown. By this time, Professor Greenberg had conducted a further psychiatric assessment of the Accused on 4, 7 and 19 January 2010 at the Long Bay Prison Hospital. Professor Greenberg had been provided with the Crown brief, including the transcript of the recorded interview with the Accused on 28 June 2009. In addition, Professor Greenberg had examined documents concerning the admissions and treatment of the Accused between 1998 and June 2009, to which reference has already been made (at [12]-[13] and [18] above). 37 I set out hereunder that part of Professor Greenberg's report of 19 January 2010 which bears directly upon the defence of mental illness (pages 16-17) (emphasis added): "Mr Rodriguez has a severe psychiatric illness (disease of the mind), which has been treatment resistant at times and become chronic in nature. He has had a turbulent course with his mental illness and has required electroconvulsive therapy (ECT) on occasions to stabilise his mental state. He has a history of non-compliance with psychiatric medication and a prior history of reported illicit substance abuse including amphetamines, datura, LSD and cannabis.

It is noted that Mr Rodriquez has previously made unprovoked assaults on various individuals In the Community, which resulted in him being repeatedly admitted to various psychiatric hospitals. Several of these relapses are noted to have been likely caused by a decrease in his dosage of medication, noncompliance with his psychiatric treatment or a consequence of the severity of his mental illness.

It is also note that in Community Mental health records that in September 2008, Mr Rodriguez made derogatory statements about homosexuals and expressed concerns about a HASI worker, whilst in a psychotic state. I am of the opinion that Mr Rodriguez suffered from chronic delusional beliefs, which at times appeared to have improved with psychiatric treatment. He has reportedly had residual paranoid beliefs, which have not been completely responsive to psychiatric treatment. I am of the opinion that at the time period surrounding the alleged offence Mr Rodriguez was suffering from 'a disease of the mind', due to his schizoaffective disorder . At the time of the alleged offence he was, in my view, suffering from a defect of reason caused by his disease of the mind . When questioned about his mental state during the time period surrounding the alleged offence, he gave a vague, disorganised and disjointed account of himself during that time period. He claims that he now does not have full recall of the events, which allegedly occurred during that time period. I am, however, completely satisfied that on the balance of probability, at the time period surrounding the allege offence, he was suffering from paranoid delusions about homosexuals which incorporated the victim. He likely had delusional thought disordered beliefs about his girlfriend, Zeeta's fidelity and her leaving his home with the victim. It was noted in his medical records that he had a history of chronic difficulties with misinterpreting conversation and sensory input. I am of the view that at the time period surrounding the alleged offence he likely misinterpreted sensory information about interactions with reported victim and his girlfriend Zeeta. I am of the view that he likely believed that the victim was homosexual and trying to sexually interfere with his girlfriend .

I am therefore of the opinion that at the time period surrounding the alleged offence he likely did not know the nature and quality of his actions because of his frankly disorganised and chaotic cognition (thinking) processes .

I note that Dr Nielssen reported that he very likely had auditory hallucinations. According to the medical records, Mr Rodriquez has never complained of auditory hallucinations since 1998. During my psychiatric interviews, he denied that he was hearing voices (auditory hallucinations) at the time period surrounding the alleged offence. I am of the opinion that he very likely did not have auditory hallucinations at that time period.

Mr Rodriguez probably did know the legal wrongfulness of his actions. Following his arrest and subsequently during the interview with the police, he was noted to be disorganised in his conversation and was talking off the point. Legally, he appeared to understand the consequences of his alleged act (Questions 31 & 36). He reported that the victim was trying to kidnap his girlfriend (Questions 123 and 137) and was putting opium in the intramuscular psychiatric medication (Question 92). He claimed he acted in 'self defence' (Question 176).

I note that his girlfriend, Zeeta Kennedy, stated in her interview on 27th June 2009, that Mr Rodriguez was afraid that the Catholic 'priest' might take her off (away). He stated he did not want her to return to the refuge that night.

I am also of the opinion that Mr Rodriguez likely believed that he was morally justified in committing the alleged offence due to his defect of reason whilst in a psychotic state .

I note that the witness, Adam Fletcher, reported that Mr Rodriguez allegedly stated that a homosexual person was trying to steal his girlfriend.

In summary, therefore, I am of the opinion that Rodriguez likely has a defence of mental illness available to him at this time ." 38 Under the heading "Current Disposition", Professor Greenberg said (page 18): "I am of the opinion that at the time of my most recent psychiatric assessment, Mr Rodriguez continues to suffer from residual symptoms of his psychotic illness. I am of the opinion that Mr Rodriguez is extremely dangerous whilst in an acute psychotic state and he is prone to unprovoked attacks on other persons while in such a psychotic state. On several of his previous admissions, the mental health staff reported that he seemed to be doing well, and yet suddenly he acted aggressively often in an unprovoked manner to persons in the community. I am of the opinion that it is extremely difficult to ascertain his true mental state on three psychiatric interviews and longer term psychiatric assessment and treatment is required. I am therefore of the opinion that Mr Rodriguez should currently remain in a highly secure mental health facility where he is able to receive intense psychiatric care and management he requires." 39 Dr Nielssen examined the Accused at the request of the defence solicitor, on 13 August 2009. In his report dated 28 August 2009, Dr Nielssen expressed the following opinion (page 5) (emphasis added): "The diagnosis of schizophrenia is made on the basis of the history of a typical pattern of treatment for schizophrenia and aspects [of] Mr Rodriguez' presentation at the time of the recent interview, when it was evident that he was affected by grossly disorganised thinking, bizarre beliefs and was also probably experiencing frequent auditory hallucinations that are characteristic of the illness.

Mr Rodriguez's illness was described as treatment resistant as the offence occurred shortly after his discharge from hospital from a long admission, during which he had received consistent treatment with high doses of anti-psychotic medication. He was transferred to the prison hospital soon after his arrest and has continued to receive treatment, but remains severely affected by acute symptoms of the illness.

Mr Rodriguez was assessed to be unfit for trial despite being able to demonstrate a basic understanding of the charge and the operation of an adversarial trial. However, his response to the charge was assessed to be unrealistic and to be based on his delusional beliefs and a lack of awareness of the effect of his illness. Moreover, he was assessed to be unable to follow the proceedings in a meaningful way or to be able to understand the effect of legal advice or provide reliable instructions to his legal representatives.

From Mr Rodriguez' responses and his presentation at the recent interview it seems likely that he would have the defence of mental illness open to him to the charge of murder. He has a brain disease that is recognised in law to be a disease of the mind that gave rise to a defect of reason in the form of a bizarre delusional belief regarding the victim of the offence, including the belief that led him to believe that he was under threat. Moreover, he was so affected by symptoms of mental illness that he was unable to recognise that his actions in killing Mr Corkhill were morally wrong .

Mr Rodriguez requires long-term treatment in a secure hospital." 40 Dr Nielssen examined the Accused again on 21 January 2010, having read the second report of Professor Greenberg and spoken to the Accused's treating psychiatric, Dr Rosalie Wilcox, about his progress. 41 Dr Nielssen expressed the following opinion in his second report (page 3) (emphasis added): "The findings of the further interview and additional information from Dr Wilcox and the documents reviewed in Professor Greenberg's report confirm the diagnosis of chronic schizophrenia. The disorder is partly resistant to conventional treatment in that there was still evidence of the communication disorder of chronic forms of the illness, despite treatment with high doses of conventional antipsychotic medication.

However, Mr Rodriguez's mental state had improved sufficiently for him to be considered fit for trial for this offence. He demonstrated an understanding of the charge, has been consistent in his account of how he intended to respond to the charge and he demonstrated an understanding of the nature of the proceedings. His intellectual function was thought to have improved sufficiently for him to be able to follow the proceedings, understand legal advice and give reliable instructions.

I confirm the opinion expressed in the previous report, that Mr Rodriguez has the defence of mental illness available to him on the basis of the effect of a severe form of mental illness on his capacity to recognise that his actions in killing his HASI worker were morally wrong ." 42 Both Professor Greenberg and Dr Nielssen (in his second report) expressed the opinion that the Accused was fit to be tried. Accordingly, the trial proceeded before me on 15 and 16 March 2010. 43 It will be observed that both Professor Greenberg and Dr Nielssen hold the opinion that the Accused satisfies the requirements for the defence of mental illness. 44 It remains a matter for the Court to determine whether the defence of mental illness is established in this case, having regard to the totality of the evidence adduced at the trial.

Determination Concerning Defence of Mental Illness 45 Although medical evidence is not essential to prove the defence of mental illness (Lucas v The Queen [1970] HCA 14; [1970] 120 CLR 171 at 174), it is the invariable experience of criminal courts in this State that medical evidence is adduced on this issue. 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] VSCA 75; (2008) 18 VR 644 at 655 [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 at 146-148 [124]-[126]; R v Klamo at 644-645 [44]-[50]. 46 Both the Crown and senior counsel for the Accused submitted that the defence of mental illness had been established in this case. 47 It will be apparent that Professor Greenberg and Dr Nielssen have expressed their opinions by reference to the elements of the defence of mental illness. Both psychiatrists are satisfied that the Accused, at the time that he killed Mr Corkhill, suffered from a defect of reason from a disease of the mind. Professor Greenberg described the disease of the mind as the Accused's schizo-affective disorder. Dr Nielssen identified the disease of the mind as schizophrenia. 48 There is one area of conflict between the opinions of the psychiatrists. Dr Nielssen expressed the opinion that the Accused was suffering from auditory hallucinations at the time of the fatal attack. Professor Greenberg considered that the Accused very likely did not have auditory hallucinations at that time. I do not think that anything turns upon this area of dispute in this case. 49 Both psychiatrists are clearly of the view that, at the time when the Accused killed Mr Corkhill, the Accused was experiencing delusional thought and disordered beliefs. This opinion was foundational for Professor Greenberg's conclusion that the Accused "likely did not know the nature and quality of his actions because of his frankly disorganised and chaotic cognition (thinking) processes" (see [37] above). Professor Greenberg concluded as well that the Accused "likely believed that he was morally justified in committing the alleged offence due to his defect of reason whilst in a psychotic state" (see [37] above). Accordingly, Professor Greenberg found the elements of the defence of mental illness in the case of this Accused by reference to both the first and second of the alternate legs to the defence. 50 Dr Nielssen found that the Accused was mentally ill, in the relevant sense, by reference to the second leg, namely that the Accused "was so affected by symptoms of mental illness that he was unable to recognise that his actions in killing Mr Corkhill were morally wrong" (see [39] above). Dr Nielssen confirmed this opinion in his second report, concluding that the defence was available to the Accused "on the basis of the effect of a severe form of mental illness on his capacity to recognise that his actions in killing his HASI worker were morally wrong" (see [41] above). 51 In this case, the expert medical evidence from two most experienced forensic psychiatrists supports the defence of mental illness for the Accused. In my view, the balance of the evidence adduced by the Crown in the trial is supportive of the defence of mental illness in this case. In this regard, the recorded interview with the Accused strongly supports the defence of mental illness. The Accused attacked Mr Corkhill, effectively out of the blue, whilst in a psychotic state and whilst expressing clearly delusional beliefs concerning the deceased and Ms Kennedy. There is no feature of the evidence in the trial which serves to undermine the opinions of the forensic psychiatrists. Indeed, the evidence tends to fortify the opinions of the forensic psychiatrists. 52 I am satisfied on the balance of probabilities that, at the time of the fatal attack upon Mr Corkhill, the Accused suffered from a defect of reason from a disease of the mind, namely schizo-affective disorder. I am satisfied on the balance of probabilities that, at that time, the Accused did not know that his actions in killing the deceased were morally wrong. Using the words of Dixon J in The King v Porter at 189-190, although the Accused knew he was killing, knew how he was killing and knew why he was killing, he was unable to appreciate the wrongness of his actions (see [33] above and R v Pratt at [20]-[21], extracted at [34] above). 53 I propose to return a special verdict that the Accused is not guilty by reason of mental illness.

Section 39 Mental Health (Forensic Provisions) Act 1990 54 Given the proposed verdict, it is necessary for the Court to consider what further order ought be made under s.39 Mental Health (Forensic Provisions) Act 1990. That provision is in the following terms: "39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks 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.

(2) The Court is not to make an order under this section for the release of a person from custody 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.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order." 55 Understandably, Mr Bruce SC did not submit that a foundation existed for the Court to make an order releasing the Accused from custody under s.39(1) and (2) of the Act. The evidence adduced at the trial demonstrates a long history of mental illness on the part of the Accused, accompanied by acts of violence or threats by him to other persons. The opinions of Professor Greenberg (set out at [37] and [38] above) and Dr Nielssen (at [39] and [41] above) are directly relevant to this question. The Accused had been an inpatient at the Richmond Clinic in the Lismore Base Hospital for a month before his discharge on 23 June 2009. Four days later, he killed Mr Corkhill. Professor Greenberg has expressed the opinion that the Accused is dangerous whilst in an acute psychotic state, and both psychiatrists opine that the Accused requires long-term treatment in a secure hospital setting. As I have said, it is understandable in these circumstances that senior counsel for the Accused did not contend that the requirements of s.39(2) are met in this case. 56 If a jury had tried the Accused for murder, it would have been necessary for the jury to be informed of the legal and practical consequences of a finding of not guilty by reason of mental illness: s.37 Mental Health (Forensic Provisions) Act 1990. With respect to a similar provision in s.21(4) Mental Health (Forensic Provisions) Act 1990 concerning the nature and conduct of a special hearing, the High Court of Australia suggested that the purpose of such a provision was to give a jury an assurance that a guilty person will not escape the consequences of his or her crime by reason of a temporary mental infirmity, or that a mentally unfit person will be humanely treated, even if convicted, with the obligation to provide such an explanation being imposed on the Court for the benefit of the community as well as mentally unfit defendants: Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 at 125-126 [41]-[42]. The purpose of s.37 is no doubt similar - to ensure that a jury understands the legal and practical 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 the Mental Health Review Tribunal with respect to the protection of the community and the person who may be acquitted on those grounds. 57 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 Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that the Accused will not be released until the Tribunal is satisfied that the safety of the Accused, or any member of the public, will not be seriously endangered by his release. 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 comes to be released, it may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates 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. 58 Before moving to make final orders, I would like to take the opportunity of extending the sympathy of the Court to Mr Corkhill's family, friends and associates, who would undoubtedly be deeply affected by the tragic events of 27 June 2009. It ought be recorded that Mr Corkhill was performing an important public duty, in the interests of the community, at the time of this terrible event. Orders 59 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. 60 In accordance with s.39(1) of that Act, I order that David Regan Rodriguez be detained in the Long Bay Prison Hospital, 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. 61 I direct that, as soon as practicable, the Registrar notify the Minister for Health of this order. 62 I direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order, and provide to the Tribunal the following documentation:

(a) a copy of these reasons for verdict and orders;

(c) the reports of Professor Greenberg (which form part of Exhibit A) together with the reports of Dr Nielssen (Exhibits 1 and 2) referred to in these reasons. **********

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