R v Shane GILL

District Court of NSW|2009-08-27|Before: Mr J

DECISION: I find the accused not guilty by reason of mental illness.

CATCHWORDS: Criminal law - Sexual assault - Special hearing - Judge alone hearing - Directions - Chronic schizo affective disorder - Hallucinations - Voices - Disordered thought processes - Hawkins and Minani:questions to be asked and order of questions to be asked on consent and knowledge where insanity raised - Not guilty by reason of mental illness - Conditions of release - Compliance with medication

LEGISLATION CITED: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990

Doe v R [2008] NSWCCA 203 Flemming v R (1998) 197 CLR 250 CASES CITED: Hawkins v The Queen (1994) 179 CLR 500 R v Minani [2005] NSWCCA 226 R v M'Naghten (1843) All ER 229 R v Hawkins (1994) 122 ALR 27

TEXTS CITED: US Diagnostic Manual of Mental Disorders

PARTIES: The Crown Shane Gill

COUNSEL: Crown: Mr D Williams Defence: Mr J Doris

SOLICITORS: Crown: NSW DPP Defence: Dribbus Kovcevic

1 The accused has been charged on an indictment containing the following count: On or about 23 February 2007 at Towradgi in the state of New South Wales, did have sexual intercourse with CD without consent and knowing that CD had not consented to the sexual intercourse.

2 This charge was brought after an incident in which sexual intercourse is alleged to have taken place between the complainant and the accused at the complainant's home in the early hours of the morning of 23 February 2007. The principal issues in the trial are whether the sexual intercourse that occurred was without consent and the accused's mental capacity at the time.

3 The charge was brought pursuant to section 61I of the Crimes Act 1900. It is not an offence of specific intent for the purposes of section 428B.

4 The issue of the accused's fitness to plead was raised on 28 February 2008. A fitness hearing was conducted before Judge Goldring on 28 April 2008 and the accused found unfit to plead.

5 Thereafter the accused was referred to the Mental Health Review Tribunal. On 21 August 2008 the Tribunal found that he would be unlikely to be fit to plead within a 12-month period.

6 The Director of Public Prosecutions advised on 11 February 2009 that there be further proceedings. Judge Conlon of this Court then directed on 30 March 2009 pursuant to s19(1)(b) of the Mental Health (Forensic Provisions) Act, 1990 that a special hearing be held. This trial commenced on 24 August 2009.

7 The relevant procedures to be adopted are set out in section 21A of the Mental Health (Forensic Provisions) Act, 1990.

8 The Crown was given leave to amend the indictment as to the dates of the alleged offence. The amended indictment was read to the accused after discussions with Mr Doris of counsel and his solicitor. The accused's parents were also in court. After the indictment was read, it was noted that the accused was taken as having pleaded that he was not guilty pursuant to the provisions of section 21A of the Act.

9 In compliance with sections 133(2) and (3) and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law in relation to the conduct of the trial and the assessment of evidence.

10 As the accused is taken to have pleaded that he is "not guilty", it becomes my duty and responsibility to consider whether the accused is not guilty of the offence or whether the accused is not guilty of the offence by reason of mental illness or whether he committed the offence, and to return my verdict according to the evidence that I have heard.

11 I remind myself that the accused's unfitness for a normal trial may or may not become apparent as the trial proceeds. That is because unfitness for trial, which is an inability on the part of an accused person, to meet a minimum standard of mental capacity to be tried fairly, may arise for any one or more of several reasons. He may not understand the nature of the charge against him, or be able to decide whether he has a defence to it. He may not be able to make a rational decision whether he is guilty or not guilty, or how to plead to the charge. He may not be able to understand generally the nature of the criminal proceedings and what their course and outcome may mean to him. The unfitness may be an unfitness to give his lawyers instructions, that is, to tell them adequately what his defence is, or in what respects the prosecution evidence is erroneous, or should be questioned and tested, or an inability to apply himself to the proceedings in an informed or constructive way. It may be that none of these matters will immediately be apparent. I must accept that in one or more ways, of which these are only possible examples, this accused is unfit mentally to be tried in a normal way because for that to occur, the law insists that an accused have the mental capacity to do all of these things.

12 In every criminal trial an accused person may or may not choose to give evidence. That remains so in a special hearing such as this, but an unfit person may not be capable of making a reasoned decision about that, or indeed, other matters concerning the hearing. At a special hearing the accused person is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty. I remind myself that a special hearing should not prejudice the accused any more than his unfitness already may do. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or he may not, give evidence. He must however have legal representation and may not, as some mentally fit accused persons do, choose to represent himself.

13 The purposes of a special hearing are, first, to see that justice is done, as best it can be in the circumstances, to the accused person and the prosecution. He is put on trial so that a determination can be made of the case against him. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives an accused person an opportunity of being found not guilty in which event the charge will cease to hang over his head, and, if he requires treatment, that it may be given to him outside the criminal justice system.

14 I am required to reach a verdict on what the Act describes as the limited evidence available. There are various ways in which evidence at a hearing of this nature may be limited. An accused, for example, may be unable to give evidence, or unable, by reason of his mental unfitness, to give adequate instructions to his lawyers concerning the calling of witnesses who might assist his case, or, as to matters on which cross-examination could be based.

15 I remind myself of the verdicts which are open to me to give in this case. In the present case those verdicts are "not guilty of the offence", "not guilty by reason of mental illness", or "the accused person committed the offence" on the offence charged, or any available alternative. There is no available alternative here.

16 I remind myself that if I find the accused not guilty, then that will be the end of the matter. He will be free and subject to no further criminal process of any kind in respect of the events giving rise to the charge. If, however, he is found beyond reasonable doubt on the limited evidence available that he did commit the offence or offences charged, it will be my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and, if he would have been, what term would have been appropriate. If, however, I were to take the view that a term of imprisonment would not have been appropriate I may impose another penalty just as I might in the case of a person fit to be tried, such as a fine or a community service order, or a bond.

17 In the event of a finding of "not guilty" on the grounds of mental illness, the Mental Health Review Tribunal is required to be informed of these findings.

18 In accordance with s 23 (1)(b) of the Mental Health (Forensic Procedures) Act 1990 in the event that I was to nominate an appropriate limiting term of imprisonment, it would then be for the Mental Health Review Tribunal to decide whether the accused is suffering from a mental illness and whether he should be detained in a mental health facility for treatment. His case would then come back to the court to decide whether an order should be made for his detention in a mental health facility or otherwise. It is also possible that the accused could be tried in the normal way for the offence if he should become fit to be so tried before the period equivalent to any limiting term of imprisonment I might nominate expires. But this would be a matter for the prosecuting authorities to decide.

19 These directions are necessary for me to understand the nature of the special proceeding in which I am engaged. My duty is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offences charged. The consequences of the verdict and what is to happen to the accused thereafter are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court and do not influence the decision-making process.

20 It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness's evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy and reliability. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.

21 I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case - important not only to the accused but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment.

22 As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, the various exhibits including the statements of numerous witnesses not called to give oral evidence, tendered either in the Crown or defence cases.

23 Here these events are said to have occurred in February 2007, that is, about two and a half years ago. Clearly, a delay of that duration may affect the recollection of individual witnesses. Different people have different powers of recall and may recollect different events and circumstances at different times. Those are matters that I must consider in my overall assessment of the particular witness.

24 I note, that in relation to accepting the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of that witness's evidence. That is particularly relevant in relation to Ms CD's evidence.

25 The Crown case was dependent in large measure, if not totally, on the evidence of Ms CD and, on some of the elements, on her evidence alone where there is no other independent evidence. Independent evidence in that context is evidence that comes from a source other than Ms CD - for example, an eyewitness account or documentary evidence. There is nothing of the kind here. The question is whether the Crown has established that the relevant elements on which the Crown relies on the evidence of Ms CD are satisfied beyond reasonable doubt on that evidence.

26 I warn myself that before I could convict the accused on the evidence of one witness - relevantly here aspects of Ms CD's evidence - I must carefully scrutinise and evaluate that evidence in the light of the criticisms of it by counsel for the accused. It is only after such careful scrutiny and evaluation and if I am satisfied that the evidence is truthful, reliable and accurate, that I can use the evidence as the basis for a conviction.

27 I have given myself this direction because the case against the accused rests in substantial measure on many of the elements on the evidence of Ms CD. When that is the position, the direction I have given is one that is always given to a jury. Nothing I have said means that I cannot be satisfied, after considering the warnings I have given myself, that her evidence was both truthful and reliable such that I can accept it beyond reasonable doubt.

28 I direct myself in accordance with the standard direction that the Crown relies upon what Ms CD said after having been - as she said - sexually assaulted by the accused, as further evidence that such an assault did occur. I have reviewed the evidence that the complainant gave of her complaint about the accused's conduct.

29 It is for me to decide whether this complaint was made but, if I am satisfied that it was, then the question I need to ask is, did the complainant act in the way I would have expected her to act if she had been sexually assaulted as she said she was? Is what she did the sort of conduct I would expect of a person in her position at the time? If I think that the complainant has done what I would expect someone in her position to do, that may support the Crown case because it makes her evidence more believable. I may find that there is a consistency between the complainant's conduct and the allegation she makes against the accused. In those circumstances I could use what she said about the accused's conduct toward her as some evidence of the truth of what she said - that is, as evidence that the accused did assault her in the way she alleges he did.

30 On the other hand, if Ms CD has not acted in the way I would have expected someone to act after being sexually assaulted as she described, then that may indicate that the allegations are false. I should remember that there may be good reasons why the complainant did not raise the allegation immediately and that a failure to do so does not mean that the allegation is false.

31 Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

32 I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question or proposition. I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.

33 I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. In the event that it is suggested, or even implied, to the complainant that she was trying to conceal an act of consensual intercourse from her boyfriend, then I need to direct myself in accordance with Doe v R [2008] NSWCCA 203 namely, that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful.

34 As I have set out earlier, no inference can be drawn nor finding made against Mr Gill if evidence is not called by him or on his behalf. The obligation remains on the Crown to establish its case against the accused and to call evidence in support. There is no obligation on an accused to adduce any evidence; the onus of proof cannot be reversed.

35 However, once the accused elects to give evidence, my assessment of him would be the same as any other witness who gives evidence on oath and is cross-examined. As I have said, the accused bears no onus, but if I reject his evidence that does not necessarily raise a doubt in my mind. Here the accused ultimately elected, through his counsel, not to give evidence.

36 I now direct myself on the onus of proof. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for him to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. What I find has been established beyond reasonable doubt is set out below.

37 It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found "not guilty" of the charges.

38 The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

39 I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, even though I may feel that he may be guilty, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him not guilty.

Irrelevant matters to be excluded from any kind of consideration

40 I acknowledge that, as the trial judge, I am aware of matters that a tribunal of fact such as a jury would not be privy to. I understand that there may be an implication that arises if good character is not raised. I have put that matter out of my mind and not used it in any way adverse to the accused.

41 The fact that Mr Gill refused to participate in a record of interview cannot be taken as any admission of guilt and that he, like any person, is entitled to refuse to be interviewed and no inference can be drawn against him by virtue of that refusal.

42 In the context of the circumstantial case relied on by the Crown and the inferences sought to be drawn, I need to be satisfied that the primary facts are established beyond reasonable doubt from which the circumstantial case is said to have been established or from which inferences can be drawn. Further, that only inferences can be drawn to establish a case beyond reasonable doubt against the accused where no other inferences consistent with innocence are available.

43 In the context of those matters where the Crown relies on the totality of the circumstances to establish a circumstantial case and inferences are relied on, I need to be satisfied that there is no inherent explanation consistent with innocence.

44 I have heard addresses from the Crown Prosecutor and Mr Doris for the accused. I have considered those submissions that have been made in their addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

45 At the time of the offence the complainant, Ms CD, was aged 26 years. She resided with her cousin, Amy D, at an apartment in Towradgi. She is about 5' 6" in height and, at the time of the incident, weighed about 69 kilos.

46 Ms CD had suffered a motor vehicle accident in February 2007. On 22 February 2007, she had attended an appointment with her doctor and had been prescribed physiotherapy and pain medication for back problems flowing from that accident.

47 At around 6 pm, Ms CD met her cousin, Amy D at their unit and they decided to go for a meal at the local bowling club. They left at around 6:15 pm, walking past a residential property that was the recently completed home of the accused and his parents.

48 At the bowling club, the complainant had four schooners of beer. While she and her cousin were outside smoking cigarettes, they were approached by the accused. He initiated a conversation with them regarding Amy's brother, Sam, who had been one of the people involved in the construction of the Gill residence. Ms CD was also talking about her boyfriend who was in the Navy in Perth and whose birthday it was the following day.

49 All three continued talking until about 8:30pm. The accused asked the complainant and her cousin what they would be doing after they left the bowling club, and they replied that they would be going home. Ms CD and Amy invited the accused to come to the apartment for a drink. The accused then purchased some pre-mixed drinks including several bottles of Wild Turkey bourbon and cola.

50 The three of them walked to the apartment. The complainant and her cousin were drinking wine. When they arrived home, the complainant went outside and had a long telephone conversation with her boyfriend. She said she later discussed her relationship with her boyfriend with the accused.

51 After Ms CD had been conversing with her boyfriend on the phone, the accused expressed to the complainant an interest in Amy D.

52 The accused then borrowed Ms CD's car to buy cigarettes before returning to the unit. Thereafter the complainant and the accused started drinking and talking in the lounge room.

53 During that period it seems that the total alcohol consumption by the complainant was four schooners of beer at the bowling club and four glasses of wine at the apartment.

54 Amy went to bed at around midnight. At that time, she considered both the complainant and the accused to be merry and drunk but "not overly so".

55 Ms CD and the accused remained in the lounge room. At one stage the accused stood up and said to the complainant, "look here." She saw he was standing with his erect penis out of his trousers. He said to her words to the effect of, "I know you want to suck it." She said, "No, I don't. Pull your pants up. You can leave (fuck off) now."

56 The accused pulled his pants up and then repeatedly said that he was sorry and that he wouldn't do it again. Ms CD then went outside and the accused followed her apologising. She said that she accepted his apology and thought that nothing more would happen and that she could handle the circumstances.

57 While outside, they had some further conversation which included the accused saying to Ms CD that 'I know you want to sleep with me' to which she replied 'No I don't'.

58 They went back inside and Ms CD said that she was going to bed, as she had to get up early. She went down the hallway towards her bedroom. A diagram of the unit was tendered. The accused walked up behind her. Ms CD said that he had a frightening look on his face and she felt terrified. Given the psychiatric evidence, it is appropriate to set out the precise terms of her evidence: "Q. When did you become aware that he was - you said that he followed up that hallway?

A. I felt him behind me. I just felt like he's still here, like behind me and I turned around and he was there and the look on his face - he just looked like - he looked normal like all night, I wouldn't have thought him to be a threat. He just had this look in his - I can't describe the look. It was just terror - it was just one of the most frightening things I've ever seen. His eyes, they went all - it was scary. His eyes just looked like something out of a horror movie when someone looks fine, then all of a sudden they've just got this wild animal look about them. I was petrified. Then next minute I'm being pushed into my bedroom.

HIS HONOUR Q. By him? A. Yes (Transcript p 39: 24 August 2009)

59 The accused pushed Ms CD into her bedroom. He said, "You know you want it." He pushed her again and she fell onto the bed, face down. He lay on top of her and pulled her pants down while she was struggling. He tried to kiss her and she kept turning away from him. She said that she felt paralysed and petrified. Eventually he pulled her pants off and when she tried to scream he held his hand over her mouth. He said to her to be quiet and to "just stop it".

60 The accused was crouching over her then lay on her. He removed her pants and underpants and put his penis inside her vagina. He had intercourse with her. She was terrified and thought he was going to hurt her or kill her. She froze and was unable to scream out despite her cousin's presence in her bedroom about 3 - 4 metres away. Ms CD was crying.

61 After he had finished having intercourse Ms CD told him to 'get out (fuck off out) of the house'. Ms CD's screaming awakened Amy. Ms Amy D said that at the time she was a very heavy sleeper. Some minutes later, the accused came to the front door of the house saying that he couldn't find his shoes. Amy helped him find them, got one of them; either threw it at the accused or gave it to him, and got him out of the apartment. Ms CD continued screaming. Amy tried to console the complainant. Ms CD told Amy that the accused had forced himself onto her and raped her.

62 A few minutes later, the accused knocked on the front door. Amy opened it and he said to her, "I'm sorry for the inconvenience." She told him to go home.

63 Thereafter the police and ambulance were contacted and the complainant taken to Wollongong hospital.

64 A few days later, a rose was left at the front door with a note addressed to 'Amy and friend' and signed 'Shane' saying that he wanted to apologise - "sorry". The accused has given instructions that it was his note and he wrote it.

65 Forensic testing was done on the bottles and glassware in the lounge room, where his fingerprints and DNA were found. There is no issue as to those matters. The accused was arrested on 3 March 2007. He was interviewed having legal representation. He declined to comment or answer questions.

66 Evidence was called from: Ms CD Ms Amy D, the complainant's cousin Detective Sergeant Spargo Detective Senior Constable Gassin Senior Constable Rhodes

67 Reports were provided by Doctor Olav Neilssen dated 1 April 2008 (exhibit 15) and 9 June 2009 (exhibit 16). Doctor Turnbull - treating psychiatrist for Mr Gill for over 10 years - provided reports dated 20 February 2008 (exhibit 13) and 30 July 2009 (exhibit 14).

68 Both experts were provided with a transcript of the evidence of the complainant and her cousin Amy D. Further, they discussed the case and the circumstances of Mr Gill.

69 By agreement, Dr Turnbull was called by the Crown.

71 I am informed, jointly, that the psychiatrists agree on Mr Gill's diagnosis, namely that he suffered from Chronic treatment resistant schizophrenia; Substance abuse disorder in remission.

72 Both psychiatrists also said, and again I so find, that Mr Gill suffered from a defect of reason by virtue of a disease of the mind. He experiences hallucinations based on telepathic communications. They agree that the accused would not have known his actions were wrong. His thought disorders distorted all his reactions including his process of reasoning and his patterns of communication.

73 Both psychiatrists considered that Mr Gill had had an uninterrupted period of illness - over the years that he had been seeing Dr Turnbull at the very least. His hallucinatory and delusional patterns were consistent with all the representations he had made to Dr Turnbull over the 10 years of his treatment.

74 Dr Turnbull thought that Mr Gill was suffering from a very severe psychiatric illness. Moreover, he was one of a small group of people who did not respond totally to treatment and that there was unlikely to be any final resolution of his symptoms.

75 Dr Turnbull said that Mr Gill's history of his illness was both varying and unpredictable. He had seen Mr Gill in December 2006 and in April 2007. His diagnosis and condition had most likely been affected by both drugs and alcohol and by non-compliance.

76 Dr Turnbull said that the symptoms of Mr Gill's condition were manifested particularly by the derailment of his thought processes and his inability to concentrate on one particular pattern of thought. His thought processes were often disordered and took the form, on occasions, of "condensation" - multiple thoughts and themes being condensed into single sentences. Those were often inappropriate and garbled. Further, Mr Gill used a lot of neologisms - inappropriate words or mixed up words - in many areas of his conversation. He suffered from a particularly severe form of the disorder that would have affected both his reception of communication and also his patterns of communication.

77 Dr Turnbull said that he had been treating Mr Gill for some six years before he, Mr Gill, conceded that he had been hearing voices although it was clear from his conversations that he had been suffering from this condition. He had also had persecutory delusions. He said that Mr Gill suffered markedly from those hallucinations - which had been present virtually all the years he had been seeing Mr Gill. They were such as to intrude into his lifestyle and day-to-day decision making capacity. The hallucinations may, for example, disappear and then return.

78 Mr Gill had also expressed some suicidal ideation although this had become quite prominent from October 2007, onwards, the ideation and its intensity varied from time to time.

79 Dr Turnbull thought that Mr Gill had shown very little insight into his own symptoms and for the most part was in a situation of total denial. He was unable to distinguish what is a symptom and what is reality.

80 Dr Turnbull also said that Mr Gill's condition was such that his ability to read other people and circumstances was distorted.

81 I note that the description of a schizo affective disorder is described in the US Diagnostic Manual of Mental Disorders (DSM- IV para. 295.70) as occurring in a typical pattern whereby there are pronounced auditory hallucinations and persecutory delusions for two months before the onset of a prominent major depressive episode.

82 Here Dr Turnbull saw Mr Gill in December of 2006. He had arranged for Mr Gill's admission to hospital at that time but, following discussions with his family over the following week, decided that that was not warranted. He saw Mr Gill again in April 2007. Mr Gill was admitted to hospital on 6 June 2007 for what was clearly a major depressive episode. The pattern of behaviour is therefore consistent entirely with the symptoms of a typical case of the severe psychiatric condition, which was being experienced by Mr Gill at that time.

83 Dr Turnbull was of the view that medication could work and would work for Mr Gill, in particular, if he were prescribed Largactil as well as Epilim and Valproate.

84 In all cases his medication would be affected by the consumption of alcohol by him. Some of those impacts may be quite profound particularly in terms of making his hallucinations and thought disorders much worse.

85 Dr Turnbull indicated his particular concerns about the pattern of non-compliance that had been evident with Mr Gill even in circumstances where he had been under instruction from both his doctors, and apparently his parents, to abstain from alcohol consumption.

86 In R v Minani [2005] NSWCCA 226 at [32], the Court of Criminal Appeal held that the order in which the issues should be determined in a case where there is evidence of mental illness is: Was it the act of the accused that is, in this case, the actual act of penetration? Was he criminally responsible for doing that act? Was that act done with the specific intention required?

87 The second question is resolved by a finding that mental illness had been established.

88 The third question arises only if the second question is answered adversely to the accused, that is, that the accused is criminally responsible in that he is not insane, and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one.

89 The High Court said in Hawkins v The Queen (1994) 179 CLR 500 (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent as well as the capacity to form that intent. As the judge found in that case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent.

90 Both Hawkins and Minani dealt with crimes of specific intent. They are therefore not prescriptive in this case. However they are both relevant to the issue of the Crown's obligation to establish knowledge of the accused.

91 Each of the elements must be proved by the Crown beyond reasonable doubt before I could find the accused committed the offence. + The accused had sexual intercourse with the complainant; and + That sexual intercourse occurred without the consent of the complainant; and + The accused had knowledge of, or was reckless as to, the lack of consent of the complainant to have sexual intercourse. The issue of recklessness does not seem to be relevant here given my proposed findings on the issue of mental illness.

92 The Crown does not have to prove that the accused ejaculated. No element of sexual gratification arises for consideration.

93 Consent means that Ms CD agrees to sexual intercourse freely and voluntarily. The Crown must establish in relation to this charge that there was no consent and that the accused knew that there was no consent or was reckless to the lack of consent.

94 The accused does not have to prove that complainant was consenting. It is for the Crown to prove beyond reasonable doubt that she did not.

95 Consent involves conscious and voluntary permission by the complainant to engage in sexual intercourse with the accused. It can be given verbally or expressed by actions.

96 Absence of consent does not have to be in words; it may also be communicated in other ways. Consent obtained after persuasion is still consent. Consent may be given reluctantly.

97 Consent can be inferred or concluded from other facts. Here the Crown has asked that I infer or conclude from the complainant's actions that he must have known objectively that she was not consenting.

98 The law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

100 The Crown must prove in relation to the count of sexual intercourse that: + The complainant did not consent; and + The accused knew that she did not consent. It is sufficient if the accused is aware that the complainant might not be consenting or possibly was not consenting.

101 Both these matters need to be established beyond reasonable doubt.

102 If the accused fails to advert at all to the question of consent, treating it as an irrelevant factor, that would amount to either knowledge or recklessness of the fact of consent. I need to remind myself that the question of recklessness is not determined by an objective standard but that I must focus on the mind of the accused. As I have said, this does not appear to be relied on here.

103 If I find that the accused was suffering from a mental condition such that he was not criminally responsible for his actions on the balance of probabilities then he must be found not guilty on the grounds of mental illness.

104 In my view having had the benefit of what effectively became joint submissions, formulated by the Crown and adopted by defence counsel, the proper interpretation of Hawkins at [18] and the facilitative interpretation of that decision in Minani is that appropriate questions - and the order for the consideration of those questions - are the following: a) Did the accused have sexual intercourse with the complainant without her consent? I assume for these purposes that the accused was sane. Evidence of insanity or the absence of mens rea is not relevant to this question.

105 If the answer to this question is yes, then I need to consider question (b). If the answer to this question is no, then the accused should be acquitted. b) Is the accused criminally responsible for his act? In determining the answer to this question, I adopt the test established in M'Naghten's case (1843) All ER 229, namely, whether as the tribunal of fact I am satisfied on the balance of probabilities that the accused was, by reason of a disease of the mind operating under a defect of reason such that he did not know what he did was wrong. Put in the alternative, has the accused failed to prove the defence of mental illness is relevant to him in these circumstances on the balance of probabilities.

106 If the answer to this question is yes, then I need to consider question (c). If the answer to this question is no, then the accused should be found not guilty on the ground of mental illness. c) Did the accused have the necessary mens rea for the offence, that is, in this context, did he know the complainant was not consenting or was reckless as to her lack of consent?

107 If the answer to this question is yes, then he is guilty. If the answer to this question is no, then the accused should be acquitted.

108 I think there is considerable force in the Crown's submissions that an alternative formulation of requiring that all elements of the offence of sexual intercourse without consent to be established before the issue of the defence of mental illness is raised, would almost invariably result in a verdict of not guilty without the additional basis for the finding (not guilty by reason of mental illness) which may well be appropriate.

109 As has been put, an alternative interpretation would mean that, the more floridly delusional the accused person was, or is, or the more acutely he or she is suffering from a defect of reason, the greater the difficulty of proving beyond reasonable doubt that the accused knew the complainant was not consenting and the more likely he would be to be found not guilty without the additional words "…not guilty by reason of mental illness". Those words trigger the consequences set out above and, in turn, the activation of procedures which bring into operation the supervisory responsibilities of the Mental Health Services Tribunal. To give any alternative interpretation - and I should specify that this is not being urged by defence counsel in this instance - would be to render nugatory that statutory scheme and the protection to the community envisaged by those procedures.

110 The third question is only relevant when the accused's mental condition at the time when he committed the act fell short of insanity (that is, the question asked in question 2).

111 If the accused is presumed to be sane, it follows that the actions of the accused are presumed to be voluntary and intentional. However it has been submitted by defence counsel that the mental state at the time of the acts was such that he was unable to form the requisite intent. That proposition is supported by the High Court in R v Hawkins (1994) 122 ALR 27 at 38 where it was held that: "Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was "voluntary and intentional" within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent -- relevantly, the intents prescribed by paras (a) and (b) of s 157(1) of the Code."

Matters on which the Crown relies to negative consent

112 The matters on which the Crown relies to negative consent, to establish an absence of consent on an objective basis are the struggles, screaming and crying of Ms CD.

113 The Crown submits that the psychiatric evidence would lead almost inevitably to a finding of not guilty by reason or mental illness. Defence Counsel concurs with that submission.

114 While not cavilling with the overall joint position, Defence Counsel submits that there were internal inconsistencies in the complainant's evidence and that I should be particularly careful in accepting her evidence on which the Crown case depends totally. Mr Doris points to the history of her drinking that evening at her unit, at the Bowling Club and the photographs of the half full glass of wine in her bedroom. He submits that there is no explanation of those matters.

115 Further the evidence of the time of her telephone call and from where she made her call were inaccurate which should lead to queries as to her overall reliability.

116 In my view, the criticism made of her evidence and the unexplained matters of the half full glass of wine and the travel brochure do not affect the reliability of her evidence on the elements and core matters.

117 Mr Doris further submits that the exposure incident, and the evidence, first given, if seeing an erect penis. It seems to me that she was never asked a question that should have elicited such a degree of detail.

118 Defence Counsel also refers to the evidence of clothing said to be forcibly removed from her and the photographic evidence that the clothes had a travel brochure on them. There is no explanation of that and the implicit change in her account of how the clothing got there, or the presence, absence or position of her underpants.

119 I accept the evidence of the complainant. I specifically reject any suggestion that her evidence was either exaggerated or evasive or designed to provide her with some sort of cover story to avoid problems with her then boyfriend. I adopt the process of considering the questions I have set out above.

120 In terms of question one; Ms CD was clear in her recollection about what had occurred. Her evidence and the hospital/medical records indicate that there was penetrative sexual intercourse. Her evidence was also that she did not consent at any stage to any kind of sexual contact or involvement with the accused, let alone the act of intercourse. The fact that there were no bruise nor scratch marks on her is consistent with the decision she made of not moving nor struggling because of her fear of being killed or injured. Sequentially what she experienced was: being terrified by the look on the accused's face, stunned by being pushed into her bedroom and on to her bed, being frozen with fear while being sexually assaulted and the eruption into anger and her extreme reaction once the accused had finished (transcript 24 August 09 p50).

121 The look given by the accused was entirely consistent with the description given by Dr Turnbull as being that of a person under a delusional state entering a state of acute psychosis. Dr Turnbull said then that fear in the recipient was the indicia of such individuals in that state. It was such that when that look occurred in psychiatric words, Dr Turnbull or indeed all medical staff observing such a stare would immediately call security for their own security.

122 On her evidence, her prior language to the accused would have left him in no doubt as to her views and her refusal to be involved. Further, the manner of her being pushed into the room and onto the bed, her struggling, crying, and moving her face away from the face of the accused would, in my view, objectively, have left him in no doubt as to her lack of consent.

123 The fact that she did not cry out at an earlier stage (that is, prior to her screams and crying which woke her cousin) is completely explicable given her terror and fear based on what was occurring and the look in the accused's eyes at the time. All her behaviour subsequently, including her complaints, was consistent with her account. Ms Amy D's evidence, both as to the preceding events, and to being woken by a scream by Ms CD was also consistent with the complainant's account.

124 Accordingly, I find that the accused had sexual intercourse with Ms CD without her consent. I find that on an objective assessment, any reasonable person would have known that Ms CD was not consenting at the time of the act of intercourse and that nothing in the complainant's conduct gave rise to such belief.

125 I find the answer to the first question to be 'yes.'

Question two - availability and satisfaction of defence raised of mental illness

126 I have considered the psychiatric evidence in relation to the evidence of the complainant in terms of the particular events, the conversations that took place between him and Ms CD on the evening in question and his actions.

127 Those actions included the accused: Taking his pants down and exposing himself in an erect state The inappropriate comments - apparently out of any kind of context

128 I have also considered the fact that Mr Gill had consumed a substantial number of drinks in the evening and it would seem at least five cans of Wild Turkey bourbon pre-mixed drinks. That would have had a disinhibiting effect on him.

129 Those comments and behaviour were in Dr Turnbull's view (which I accept) indicative of delusional beliefs. They appears to have been made or occurred entirely in the absence of any kind of context - moreover, in circumstances where the complainant had been talking about her boyfriend, her desire to be re-united with him and her fidelity to him. His further comments, "I know you want to sleep with me" again seemed to be bizarre in all the circumstances and an aspect of his delusional thinking. There was nothing in Ms CD's actions or conversation that meant that the accused's conduct and comments were other than delusional. Dr Turnbull discounted the possibility that this was some kind of self-aggrandising narcissistic behaviour by the accused. He said that he had never seen Mr Gill manifesting such symptoms or being at all narcissistic in the years he had treated him.

130 Dr Turnbull was asked whether the writing of a note after the event indicating his contrition for the events was consistent with that presentation and diagnosis. Dr Turnbull's view was that this may well have been a manifestation of what is sometimes referred to as "double book-keeping", in other words, the conduct of somebody who was, on occasions, able to conduct a normal lifestyle around the hallucinatory and other bizarre manifestations of his behaviour.

131 All these matters seem to be entirely consistent with what the evidence is namely, that Mr Gill suffers, and suffered at the time, a particularly severe form of the disorder that would have affected his thought patterns, his perceptions and his method of communication and understanding.

132 I find the accused not guilty by reason of mental illness.

133 It is unclear what permanent arrangements will be made for the accused's ongoing care and supervision, in particular, whether he will continue to consume alcohol or frequent licensed premises. There are clear social and community safety issues involved in a person with a permanent and ongoing psychiatric condition such as the accused being able to present himself as a normal person able to control his actions and thought processes when he consumes alcohol or fails to takes prescribed medication. Ms CD has had to experience a violent and frightening sexual assault in her own home, which left her terrified and traumatised. If there is a balance to be struck, in my view it should be directed to ensuring that no member of the community is exposed to this kind of danger from the accused again and that appropriate conditions be imposed to that end.

134 I have also heard evidence from Mr Anthony Gill, the father of the accused. He has 2 other children. It is a close-knit family. The accused works two days a week for his brother's family business. Mr Gill senior is a director of the Towradgi Bowling Club, which is a small club. That club features strongly in the family's social life and activities and ensuring that the accused is not a recluse - as he was at an earlier stage of his life. Mr Gill senior said he will ensure by written direction that the accused is not served alcohol in those premises not attend any other licensed premises other than a restaurant in the presence of the family.

135 Mr Gill senior said he and his wife were aware of a past history of the accused's denial of his problems and the need for treatment and reluctance to take his prescribed medication. The nurse in charge, Karl Bourke, is someone with whom the family has a good relationship to properly case manage the accused. Over the last 12 months the accused has not had a negative blood or urine test. Mr Gill senior, who sat through the entire proceedings, has said that he has made sure the accused understands what has occurred and will ensure that the accused knows of the effect of the conditions to be established.

136 I find that on the balance of probabilities that neither the safety of the accused nor any member of the public will be seriously endangered by the accused's release provided he complies with the conditions set out below. In so doing I have based my opinion on the five tendered psychiatric reports, especially the last report of Dr Turnbull dated 21 August 2009, where it is stated that he knows of now anti-social incidents in the last 12 months as well as the evidence of Mr Tony Gill.

137 Copies of the five psychiatric reports are to be sent to the Mental Health Services Tribunal. I direct a copy of these remarks and reasons be also forwarded to the Tribunal and to Dr Turnbull pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990.

138 I direct that the accused be released subject to the following conditions: i. That he be required to comply with and be supervised to ensure his compliance with any directions given to him by Dr Turnbull or by any other treating psychiatrist recommended by the Tribunal. ii. That he comply with all directions given by any alcohol and drug counsellor nominated by the Tribunal, including that he abstain from the consumption of alcohol and any illegal drugs. iii. That those responsible for Mr Gill's care comply with the requirements for medical and psychiatric treatment including: - a) Fortnightly injections of the anti-psychotic medication Risperidone ("Consta") and Clozapine (daily or as prescribed); b) At least monthly monitoring of these conditions, and of his urine and serum levels to ensure compliance levels with this medication; and c) The total abstinence from the consumption of alcohol and the regular testing by Naltrexone to ensure compliance with this condition; and d) That he attend the Mental Health Services Tribunal with seven days. iv. That he not attend any licensed hotel at all, nor attend any licensed restaurant other than in the company of his family save and except the Towradgi Bowling Club and then in the presence of a member of his immediate family or a serving director or manager of the Towradgi Bowling Club.

139 I note the undertaking of Mr Anthony Gill that he will inform the directors and managers of the Towradgi Bowling Club in office from time to time of the terms and effects of these orders and will supervise the accused in relation to his treatment and medication.

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.

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Judgment (151 paragraphs)

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Cases Cited (5)