R v Webber

Supreme Court of NSW|2015-07-28|Before: Campbell J

Solicitors: NSW Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2012/140771

judgment

The accused, Mr Geoffrey Webber was arraigned before me on 27th July 2015. He has pleaded not guilty by reason of mental illness to the single count on the indictment that, on or about 2nd May 2012 at Brookvale he murdered the deceased, Mr Luke Aaron Robins. On 16th April 2015 an election under s 132(1) Criminal Procedure Act 1986 (NSW) was made by Mr Webber to be tried by a judge alone. This election was consented to by the Crown on 4th May 2015 and accordingly under s 132(2) the Court ordered trial without a jury.

Summary of Crown case

In summary, the Crown case is that at just after 11:30pm on 2nd May 2012 Mr Webber and Mr Robins were waiting at the southbound bus stop on Pittwater Rd, Brookvale, opposite Warringah Mall. They did not know each other. Suddenly and without provocation Mr Webber attacked Mr Robins with a long, black-handled carving knife. Mr Robins valiantly tried to fight off his attacker but he was overpowered by Mr Webber who twice stabbed him in the chest. Police arrived on the scene very soon afterwards in response to 000 calls by witnesses. When Mr Webber saw them he ran onto a bus which had just arrived at the stop, attempting to get into the driver's cubicle. Initially resisting arrest, Mr Webber was wrestled from the bus by police officers onto the footpath where he was arrested, handcuffed and cautioned. He remains in custody in the Long Bay Hospital. Despite the best efforts of police and ambulance officers to save him, Mr Robins tragically passed away within minutes of arriving at Royal North Shore Hospital.

General legal principles

Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of this case, would usually be given to a jury.
I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437 at 466.
The starting point, and fundamental rule, as in any criminal trial, is Mr Webber is presumed to be innocent. It is relevant to record, given his plea, that he is also presumed to be sane. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.
The elements of murder which the Crown must establish in the present case to prove Mr Webber's guilt are that by his voluntary, or deliberate act of stabbing Mr Robins, neither in self-defence nor by provocation, Mr Webber caused Mr Robins' death, intending at that time to kill him. Given the nature of his acts the consideration of a lesser intent can safely be put aside.
Particular considerations apply to this case because Mr Webber has raised mental illness as a defence: Hawkins v The Queen [1994] HCA 28; 179 CLR 500; R v Minani [2005] NSWCCA 226; 63 NSWLR 490 at [32]. Those considerations relate to the order in which the issues are required to be approached. As Ms C Loukas SC, who appears for Mr Webber, argued the issues are to be approached in the order which I will now set out.
The first issue is whether the stabbing of Mr Robins was a deliberate act. Mental illness is irrelevant at this stage. In truth there is no real issue about this. Criminal trials are not only accusatory, they are also adversarial in nature and, there is no issue that the actions of Mr Webber stabbing Mr Robins were willed and voluntary. Were it otherwise, the eyewitness accounts overwhelmingly establish this fact. It will still be necessary for me to say something about the facts and their aftermath because they inform the decision about the second issue.
The second issue is whether Mr Webber is criminally responsible for the consequences of his actions. This involves resolution of the mental illness defence.
Once again, there is no issue that Mr Webber suffered from a mental illness at the time he killed Mr Robins; probably for some years before, and ever since. Other than sporadically, that illness was untreated before he was taken into custody. He has been intensively treated since, and on the evidence, his condition is somewhat better now than then. In lay terms, the real issue is whether his condition at the time of the killing was severe enough to satisfy the elements of the legal defence.
The mental illness defence is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW). Section 38 provides for what is referred to as a "special verdict" if the accused person is not guilty by reason of mental illness. This is a third category of available verdict in addition to verdicts of "guilty" or "not guilty". It is important to understand that the legal consequences which follow a special verdict "are quite different from those which follow a plain verdict of not guilty on the ground that [Mr Webber] did not do the things charged" (The King v Porter [1933] HCA 1; 55 CLR 182 at 185). In the case of a special verdict, subject to the provisions of the Act, Mr Webber will not be "completely free".
If I return a special verdict, I am empowered to order that Mr Webber be detained "in such place and in such manner" as I think fit "until released by due process of law" (s 39 of the Act). It is important to understand that I am not authorised to release Mr Webber into the community unless I am satisfied that his safety, or the safety of any member of the public will not be seriously endangered by his release (s 39). A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal, which will review his case and make orders for his continued detention, care and appropriate treatment. The Tribunal may not release Mr Webber unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The Tribunal will be bound to review Mr Webber's case, at least every six months. It is composed of a President who is, was, or would be qualified to be, a Judicial Officer, a psychiatrist or psychologist, and a third member drawn from the community with appropriate qualifications and experience. Importantly, in this case, whilst under its supervision, the Tribunal may make orders for Mr Webber's continued detention, care or treatment in a hospital or prison.
I emphasise that the return of a special verdict will not mean that Mr Webber has not perpetrated what is the greatest wrong that may be committed according to the ordinary standards adopted by reasonable people; rather the law does not attribute criminal responsibility to him for it by reason only of his mental illness.
Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility. As Dixon J (as the Chief Justice then was) pointed out as long ago as 1933 (in Porter at 187): … a great number of [the] people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their disposition and peculiarly tempered…. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. His Honour went on to point out: (The criminal law) attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like.
As I say, the standard of proof is less exacting, but the necessary elements of the defence are not easily satisfied. The legal requirements of the defence have been established since 1843 (R v McNaughten (1843) 8 ER 718) in the following terms: … to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong. It is necessary for me to focus on that short period of time during which Mr Webber attacked and killed Mr Robins. Even so, his past and subsequent medical history relevantly shed light on his condition at the time.
The evidence in the present case refines the issue somewhat. Any question of whether Mr Webber knew the quality and nature of the act of stabbing Mr Robins can be ignored. Neither psychiatrist suggests his condition was such. I accept the evidence of Dr Allnutt that Mr Webber maintained the capacity to know the nature and quality of his actions (76.10 - .32T).
The evidence is also "all one way" that Mr Webber, at the time he killed Mr Robins, was suffering from a disease of the mind, namely paranoid schizophrenia (69.15 - .40T). In truth, the expert witnesses, Dr Allnutt and Dr Furst, were also in agreement that Mr Webber's disease was of such a severity giving rise to "such a defect of reason … that he did not know that what he was doing was wrong". Both experts considered, adapting the language of Dixon J (Porter at 189 - 190), that by reason of his disease Mr Webber "could not reason about" his actions, "with a moderate degree of sense and composure" such as to say "he could not know that what he was doing was wrong" (Dr Allnut at 76.43T, 77.35T and 86.25T; Dr Furst at 97.30T).
As can be seen, the psychiatric evidence, in terms of the opinion of each expert on the facts assumed, favours me finding the mental illness defence has been established, and the Crown does not argue otherwise.
However, I bear in mind that the value of expert opinions is very much dependent upon whether the facts assumed for the purpose of expressing the opinion are sufficiently like the facts as I find them to be. I am not obliged to accept the opinion of any expert. I may reject the evidence, especially where the facts upon which the opinion is based does not accord with the facts as I find them to be.
It is very important to bear in mind that the expert evidence was not challenged by Crown. Indeed, Dr Allnutt's evidence was propounded by the learned Crown Prosecutor. Even so, given that the sanctity of human life is a fundamental community value upheld and bolstered by the criminal law, it remains important for me to review the evidence to consider whether it actually persuades me, on the balance of probabilities, that the defence has been established. The wrongful taking of a life requires retribution, denunciation and vindication of the injuries suffered by the victim's family. These objects can only be achieved when offenders suffer punishment. The taking of Mr Robins' life is beyond this principle only if the mental illness defence is made out.
In undertaking the review of the evidence I will bear in mind that if it is shown that the two doctors not only come to the same conclusion, but provide like reasons for it which "clearly lead to that conclusion … the right decision … must be that the defence has been made out" (R v Jenkins (1963) 64 SR (NSW) 20 at 31 by Walsh J).
Before proceeding further, I record that if I am not satisfied that the mental illness defence has been made out, it will be necessary to go on to consider the question of whether Mr Webber intended to kill Mr Robins when he stabbed him. The answer to that question will be informed by his mental illness, even if it does not rise to such a level as to support the mental illness defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental illness supports the partial defence of substantial impairment provided by s 23A Crimes Act 1900 (NSW) reducing murder to manslaughter.

Issue 1 - Voluntary Act

I am satisfied beyond reasonable doubt that the act of stabbing Mr Robins was a deliberate act by Mr Webber, and that that act caused Mr Robins death.
The circumstances established by the evidence are that Mr Robins was at the date of his death aged 22. He was a student studying popular music. Earlier in the evening of Wednesday 2nd May 2012 he had rehearsed or practised with some friends. He then intended to travel to the city to meet-up with another young musician. The other musician had performed with his band in a hotel and they were meeting for a friendly drink afterwards. Mr Robins was waiting for a city-bound bus at the bus stop on the eastern side of Pittwater Rd, Brookvale, opposite Warringah Mall. He was sitting in a bus-shelter seat listening to music through headphones and, as young people are apt to do, playing on his mobile phone.
Mr Webber was then aged 25. From a telephone call to his mother at about 10:45pm it is known he had been at Warringah Mall and was intending to return to her home by bus. When first seen by an eyewitness, Ms Tereza Kratka, Mr Webber too was sitting in the same bus shelter as Mr Robins. Mr Webber was sitting in the southern most of three groups of three seats and Mr Robins in the middle group.
When Ms Kratka entered the bus shelter she walked passed Mr Webber and Mr Robins and took a seat in the northern most group of seats. She was then 25 years of age and she commenced playing on her phone waiting for the bus. She remembers looking at her phone and noticing it was 11:36pm. She then happened to look up and saw Mr Webber standing directly in front of Mr Robins holding a long bladed kitchen knife in his right hand. The knife was later recovered. It was a black handled Wiltshire carving knife with a long blade, with an overall length of about 30cm. Understandably, Ms Kratka assumed she was witnessing a robbery and ran away in the direction of the Brookvale Bus Depot, north of the shelter. As she did so she heard a male voice yelling "help". The voice was that of Mr Robins.
Ms Vicky Thorpe, a visitor from South Australia, had been at the movies at Warringah Mall with one of her sons. They were waiting for a bus back to their accommodation at the bus stop on the western side of Pittwater Rd, opposite where Mr Robins was sitting. She noticed the three young people in the bus stop opposite, but paid them no particular attention. When she heard the call of "help", which she described as a loud yell, she looked across again, seeing Ms Kratka running north and Mr Webber and Mr Robins (of course who she did not know) wrestling. She realised something serious was happening. She described a struggle between Mr Robins and Mr Webber - "their arms were above their heads and [Mr Webber] had the knife up and [Mr Robins] was holding his hands up … trying to stop the knife from coming down" (9.10 - .20T). She could see the light of the bus shelter reflecting off the blade of the knife. She described it as a carving knife. She could see from the movement of his jaw, that Mr Webber was saying something and she could hear Mr Robins calling out "someone help me". She shouted out, "hey", I infer to let Mr Webber know he was being watched in an attempt to discourage him from persisting with his actions. She asked her son to telephone 000 while she took her own phone across to the median strip. The lanes of traffic are separated by a fence mounted on the median strip to prevent pedestrians from crossing Pittwater Rd, other than at the lights. She was yelling out "we've called 000, we're taking photos" to try to get Mr Webber's attention "to make him see what he was doing so that he would stop" (10.15 - .20T). But Mr Webber paid no heed and Mr Robins continued to struggle and call for help.
Ms Thorpe who remained in the centre of the road at fence because she "couldn't get past it" (10.45T) had her attention distracted by a north bound bus momentarily, and when she looked back she saw the young males on the ground, Mr Webber on top of Mr Robins. Despite his position of great disadvantage, Mr Robins was still resisting valiantly and holding Mr Webber's wrist away from him. She saw Mr Webber punch Mr Robins in an attempt to get the better of him. She then saw Mr Webber stab Mr Robins with the knife in his left hand through the centre of his chest, pushing the hilt of the knife down with his right hand. Mr Webber removed the knife with his left hand and stabbed Mr Robins again in the same manner. Mr Robins continued to call for help, but his voice was weaker.
What Ms Thorpe saw is confirmed by the results of the post mortem examination carried out by forensic pathologist, Rebecca Irvine. Dr Irvine summarised her findings as follows (Exhibit H): Autopsy revealed a pale young adult man with a single stab wound on the left upper chest. The wound was distinctly "squared off", suggesting a single edged knife, and there were associated abrasions suggestive of a hilt/guard mark. There were two distinct incisions of the cartilage subjacent to the stab wound, indicating at least two passes of the blade through this area. The wound perforated both lobes of the left lung; there were 1750 mL of blood within the chest cavity, and the left lung was collapsed. There was evidence of haemoaspiration within the right lung. The wound tract penetrated the left lateral chest wall within the 5th intercoastal space, and very likely incised the intercostal artery (given the large amount of blood accumulated within the pleural cavity, the reported blood loss outside the body and the rapidity of his collapse). The wound tract travelled front to back, right to left (leftward) and slightly downward. The cause of the death was a stab wound of the chest.
The doctor also found a number of blunt force injuries to Mr Robins face and trunk, probably from the punching. I infer he fought back as he held the knife away with his right hand because there were blunt force injuries found on his left hand. There were also knife injuries to both hands which Dr Irvine said were "consistent with "defence injuries"" (Exhibit H, p 3).

Immediate aftermath

Sergeant Alan Le Surf, of Dee Why Police Station, was on duty as the mobile supervisor of his patrol in a fully marked police car. His partner was Constable Nicole Townsend. They received the call over the radio. The sergeant immediately activated the lights and sirens on his vehicle and responded "code red" to the incident (31.45T). Upon arrival they overshot the bus shelter somewhat, u-turned and parked in the kerbside lane next to the bus shelter but facing north. As they pulled up Const Townsend saw Mr Webber "still holding the long black handled [knife] against [Mr Robins'] chest (Exhibit T[7]). As they hurried from the police car, a southbound bus, driven by Mr Lawrence Ess pulled up at the bus stop. Unaware of events, Mr Ess, as he always did, opened the bus doors to allow any passengers waiting at this major stop to board. When this occurred, Mr Webber ran on to the bus. As he commenced this movement, Const Townsend saw he was still holding the knife.
When he boarded the bus, otherwise reliable witnesses thought they saw Mr Webber threaten Mr Ess with the knife. They were mistaken in this. Mr Ess, understandably, was very alarmed by the appearance of Mr Webber who attempted to enter the driver's cubicle. The driver saw nothing in Mr Webber's hands (28.25T). Mr Ess grabbed his metallic torch, which he waved around to ward off Mr Webber. Although he did not know that Mr Webber was unarmed at the time he boarded the bus in pursuit of him, Sgt Le Surf saw when Mr Webber turned to confront him "that he had nothing in his hands" (32.15T). I think that the witnesses who believed they saw the knife when Mr Webber was on the bus were mistaken. They may have mistaken Mr Ess' torch for the knife.
Const Townsend believed that Mr Webber remained armed because she drew her firearm, ready to use it, fearing for the immediate safety of herself and those on the bus. Sgt Le Surf who is a very tall, strong-looking, experienced police officer had difficulty bringing Mr Webber under control as he "flailed around with his arms in a whirling motion" (32.15T). The police officer got the better of him and was able to drag him off the bus. The Sgt observed that during all this time Mr Webber had said nothing "and only seemed to grunt (32.15T). Const Townsend made a similar observation (Exhibit T[13]).
As Sgt Le Surf dragged Mr Webber off the bus he continued to resist and Const Townsend and other arriving police officers were required to get him to the ground. He continued to struggle and was handcuffed only with considerable difficulty. The Sgt then found the knife, completely covered in blood, lying in the gutter. Obviously, Mr Webber discarded it as he made for the bus.
By coincidence Ms Kratka, after reporting Mr Webber's attack on Mr Robins at the bus depot, and requesting they contact the police, joined Mr Ess' bus at the next bus stop north. She was on the bus when Mr Webber boarded it. She said (Exhibit B[22]): [When Mr Webber boarded the bus] the Police had already arrived and they got him off the bus. There were 3 Police and he was fighting with them. [Mr Webber] appeared insane. He was punching the police.
When Mr Webber was removed from the bus, Mr Ess closed the doors and continued with his duty for the sake of his passengers.
As Sgt Le Surf and his colleagues were capturing and subduing Mr Webber, other police including Snr Const Tanya Megahey (nee Orchard) were attempting to sustain Mr Robins' life by undertaking cardiopulmonary resuscitation. Sgt Matthew Lehmann returning to his home in the northern beaches after completing his shift in the eastern suburbs stopped to render assistance taking over from Const Megahey. Attempts were also made to stem Mr Robins' blood loss whilst awaiting the arrival of an ambulance. When it arrived, Const Megahey drove the ambulance to Royal North Shore Hospital so that paramedics could continue their attempts to save Mr Robins during the journey. Despite their efforts, tragically Mr Robins was pronounced dead just after midnight.
Detective Snr Const Adam Vickery is the officer in charge of the investigation. His statement is Exhibit E. He was also the arresting officer. He was present when Mr Webber was handcuffed and heard him laughing and grunting during the process. When cautioned Mr Webber did not reply. At the police station, Mr Webber apparently asked for legal advice. The police unsuccessfully attempted to contact legal aid. He was provided with a phone book to enable him to contact a solicitor in private practice, but was seen to simply look off into the middle distance (Exhibit E[32]). Both Sgt Le Surf and Det Snr Const Vickery regarded Mr Webber's non-verbal responses as abnormal. Both had experienced this type of thing when arresting persons known to be mentally ill in the past.

Issue 2 - Mr Webber's history of mental illness

As I have already commented Mr Webber undoubtedly suffers from paranoid schizophrenia. The question is whether, at the time he stabbed Mr Robins, his condition gave rise to such a defect of reason that he did not know what he was doing was wrong. It remains relevant to consider the nature of the history of his condition.
He had a strong genetic predisposition to the development of paranoid schizophrenia, his father who left the family when Mr Webber was 5 years old was schizophrenic, and his mother suffered from bipolar disorder. After his parents separated, his mother, because of her own health problems, was unable to care for her children and he became a ward of the State living in various refuges from about the age of 15. In the opinion of Dr Grant Sara, a psychiatrist involved with Northern Beaches Early Intervention Centre of the North Sydney Local Health District (Exhibit U), these circumstances amount to a "complex and traumatic developmental history" relevant to the onset of the disease.
Mr Webber first came to the attention of Mental Health Services after he became a ward of the State. He was treated between the ages of 15 and 18 for a dysthymic disorder, a depressive condition. Whilst under treatment his therapist described him as "isolated, reclusive, avoidant, ruminates excessively, strongly opinionated, having a tendency to procrastinate and avoid risks, detached". Drs Allnutt and Furst, with the benefit of hindsight, considered this depressive condition may have been part of the prodromal phase of the development of his schizophrenia.
Mr Webber seems to have suffered his first documented psychotic episode in about December 2008. He was admitted to Manly Hospital for a medical condition and medical staff became concerned at his obvious anxiety. He complained of unusual symptoms such as hypersensitivity to noise in the ward including beeping machines and crying babies. He seemed to consider that these noises were directed at him. These complaints seem to represent the emergence of "referential thoughts", common symptoms of the disease. Dr Allnutt defined these as "inferring meaning in things that one might perceive to have some meaning to oneself" (59.15T; 66.15T). Mr Webber complained of a spy plane outside the hospital ward (Exhibit V2, p 5) and his thoughts were disordered in as much as he was described as "vague and guarded, staring out window, delayed responses". But those assessing him felt he had no formal thought disorder. He was admitted to the psychiatric unit, was found difficult to assess and was discharged by the visiting Magistrate. Dr Sara said: Our impression was of an ultra-high risk young man with strong genetic and developmental vulnerability and gradual increase in longstanding dysthymia and anxiety. At that assessment his focus on noise appeared consistent with an anxiety state rather than being frankly psychotic. However, his affect, behaviour, interpersonal manner and sticky, perseverative cognitive style suggested emerging psychosis or vulnerability to psychosis. Provisional diagnosis was of Dysthymia, an atypical Anxiety Disorder and possible evolving psychosis.
His mother told police (Exhibit M) that he had been treated by his GP with Zoloft, for depression. However, that doctor died sometime before December 2010. He was in contact with the Beaches Mental Health Service again in December 2010 after an incident of aggressive behaviour in a dispute with a neighbour about water dripping from the neighbour's balcony onto his washing. Dr Sara was struck by his degree of depression. Dr Sara did not think him "unambiguously psychotic", but there were clearly aspects of the examination raising concern about that topic including his continued hypersensitivity to noise, anxiety and hyper-vigilance. However, he was dismissive of questions about persecutory ideas. He appeared depressed, psycho-motor retarded, with restricted, sad, weary and resigned affect. He was not, however, thought disordered. He was then 21.
A strange incident occurred on 2nd April 2011 when his behaviour came to the attention of police. This is documented in the statement of Const Adam Goodhand of 5th May 2011 (Exhibit P). Police attended at Mr Webber's home in response to a report that he "had been having a psychotic episode for the past two days" (Exhibit P[4]). Upon his arrival, Const Goodhand noticed a web camera protruding between the door and the doorframe of Mr Webber's unit. A neighbour reported to police that the previous day he had come upon Mr Webber crouching in a corner of the stairwell crying and saying "they are after me". The neighbour questioned him, but Mr Webber would only say things like "they are coming for me". Later Mr Webber knocked on the neighbour's door. When asked what was wrong, Mr Webber replied "they are coming for me". The neighbour then noticed the web camera on the morning of 2nd April and contacted police. When police knocked on his door and identified themselves, Mr Webber did not move, but was seen to be continually looking at his computer screen. The police officer pushed the door open further and attempted to talk to him, but Mr Webber did not answer questions. Const Goodhand was able to, with some cajoling, persuade Mr Webber to attend Manly Hospital voluntarily, as the police officer had formed the view "he may be suffering from some form of mental illness such as schizophrenia".
At the hospital he was apparently able to speak to doctors, but he could not explain his conduct "saying only that "it was an odd thing to do"" (Exhibit U, p 3). I interpolate that Dr Allnutt defined catatonia as being mute and not engaging in any behaviours. He counted it among the symptoms of thought process disturbance associated with schizophrenia. These also included perseveration and delayed or slowed thought processes (70.35 - .45T). As he presented to Const Goodhand, I infer he was exhibiting this sign of catatonia.
Dr Furst said at (92.25T): Catatonia is the most severe form of mental illness, in the sense that when the person is basically unresponsive and … frozen in their posture, can't move, can't eat, can't think [its] … a marker of …. a severe schizophrenia. Mr Webber was catatonic when Dr Furst first assessed him on 15th June 2012. The features of his presentation to Dr Sara, and also to the layman, Const Goodhand, seem characteristic of some forms of schizophrenia.
Despite attempts by the Mental Health Service to follow up with Mr Webber, he failed to respond to them.
His condition seemed to worsen in 2012 to the extent that there were a series of very worrying incidents leading up to him killing Mr Robins. On 24th April 2012, he assaulted an elderly resident of his unit block repeatedly asking him "who am I?". Following this incident, perhaps ironically, he became anxious that his neighbours were after him. He seems to have been living on the streets or, at times, staying with his mother. He told Dr Allnutt in March 2013 that he felt the Government and the police were reading his mind "and for this reason he tried to sleep on the rocks at Queenscliff because he thought doing so would "stop the brain waves by having the rocks in-between [him] and them" (60.30T).
Two strange incidents occurred on 25th April 2012. He travelled by bus to Mona Vale in the late evening. When he alighted from the bus he followed an elderly man home walking right into his backyard. He was not violent or dangerous but behaved strangely telling the elderly man and his wife that he was looking for a friend and asking him whether they would be his friend. They gave him a cup of tea and arranged for him to be escorted from the premises by the night manager. The night manager returned him to the bus stop, but Mr Webber did not leave the vicinity. He was next seen following a young woman who was pushing her child in a stroller around Coles and then followed her home, walking very closely behind her. A good Samaritan intervened and Mr Webber absconded.
Mr Webber seems to have been staying with his mother on 30th April, 1st May and for part of 2nd May 2012. On 30th April his mother was extremely worried about his condition and contacted the Mental Health Crisis Team at the Manly Hospital. She felt that in the weeks leading up to 2nd May 2012, he had not been "normal". He seemed to have distanced himself from his family (Exhibit M[13] - [14]).
Two registered nurses from the Mental Health Service contacted her on 1st May 2012, being Anthony Kemp (Exhibit N) and Helen Dunne (Exhibit O). They made a home visit in an attempt to assess Mr Webber's mental state. Mr Webber refused to have anything to do with them and walked out on them. Mr Kemp formed the view that Mr Webber needed to be assessed by a doctor. He did not feel threatened, but the situation was tense and Mr Webber was agitated. He encouraged Mrs Webber to attempt to persuade her son to attend the hospital. Mr Kemp was sufficiently concerned about what he had seen to make inquiries about Mr Webber on the Mental Health Services' computerised system. He also rang Dee Why police and relayed his concerns to the constable who answered the phone. The constable suggested that a car would call at Mr Webber's flat in Manly Vale. However, Mr Webber would not have been there between that report and his attack on Mr Robins.
Mr Webber returned to his mother's home later on the evening of 1st May saying he went to Palm Beach on the bus.
On the morning of 2nd May 2012, the mental health team rang Mrs Webber to speak about Mr Webber's situation. At that time, he was at home and asleep. Mrs Webber had already decided with the assistance of one of her daughter's, to attempt to talk Mr Webber into going with them to Manly Hospital. When her daughter arrived, Mrs Webber told her that "Geoffrey needs help". When Mr Webber woke up and saw his sister there, he seems to have become very suspicious. Mrs Webber and her daughter could not muster the gumption to broach the subject about going to the hospital with them as she could see he would have been "really upset with [them]" (Exhibit M[16]).
Mr Webber spent part of that day with his mother. They had lunch at a family restaurant and attended his unit because he said he wanted to get a t-shirt and his bible. When they arrived there Mrs Webber said he looked anxious like he was afraid and told her he was confused. He obtained the things he had come for and they left. He then sat down on a neighbouring fence "took out his bible and started to look around" (Exhibit M[17]). She told him he could read it at her place. He would not listen. He went back to his unit and put the bible on the table. She said once he put the bible down he was happy to leave the unit. They did some shopping on the way home. Mrs Webber left Mr Webber sitting at a table while she went to a supermarket. When she returned he was hanging his head. They returned to her home at about 4 pm. She tried to encourage him to rest because she knew he had been anxious and had not slept much in the past week, but he insisted on going out.
From the police investigation, it seems Mr Webber went into the city. CCTV footage investigated by the police depicted him in the vicinity of the Carrington Street entrance to Wynyard Railway Station at about 7pm, (wrongly recorded as 7 am). Other footage showed him in the Coles supermarket at the station. He later seems to have gone to Warringah Mall from where he phoned his mother at about 10:45 pm. His mother said "[he] sounded quite anxious".
Although no diagnosis of paranoid schizophrenia was made during this period, all of this evidence, which I accept, paints a compelling picture when examined through the lens of the expert evidence, of a genetically predisposed, socially and emotionally deprived young man, descending into the grip of a serious mental illness at an ever quickening pace just prior to 2nd May 2012. The bizarre nature of his behaviour over the week leading up to him killing Mr Robins and the contemporaneous concerns of his mother, and Mr Kemp, an experienced nurse in the field, persuades me that he was certainly mentally ill at the time he attacked Mr Robins.

The expert evidence

The reliability of the expert psychiatric evidence depends upon the validity of the assumptions they have made about Mr Webber's medical history, and the reliability of the accounts he gave them. Their interpretation of Mr Webber's past medical history from the documents they were asked to inspect substantially accord with the findings I have made.
Mr Webber eventually offered an account of what happened to each of them. As he has not given evidence, it is appropriate that I bear in mind that hearsay evidence is often unreliable especially when it consists of out of court statements by a person accused of a serious crime, who may therefore have a motive for proffering self-serving statements of an exculpatory type. That he cannot be cross-examined on them affects the weight which might be accorded to them. Nonetheless the statements made are admissible because they are the foundation or part of the foundation of the opinions expressed by Drs Allnutt and Furst. Being admissible for that purpose, I am entitled to rely upon them, if I am otherwise persuaded as to their reliability, as evidence of the truth as an exception to the hearsay rule under s 60 Evidence Act 1995 (NSW).
It is not without significance that upon being taken into custody Mr Webber was admitted into the Long Bay Hospital and he has been under the care of Justice Health with a diagnosis of schizophrenia and under treatment by appropriate anti-psychotic medications of gradually increasing strength.
The first of the experts to examine him was Dr Furst. Mr Webber did not answer any questions during that consultation. Dr Furst formed the impression that he was catatonic, as I have said, a significant marker of schizophrenia. His inspection of the Justice Health file revealed that doctors treating him thought him to be depressed and psychotic. They were treating him with "potent antipsychotic" medication. Dr Furst diagnosed severe paranoid or catatonic schizophrenia.
When Dr Furst next saw him in October 2012, his condition was improved and he was able to answer questions, but he remained slow in his manner and "paranoid". Dr Furst maintained his diagnosis of severe paranoid or catatonic schizophrenia.
Mr Webber told Dr Furst: He was depressed and felt hopeless from about March 2012, spending a lot of time by himself at home. Mr Webber felt as though he was being followed and monitored, believing that various people were behind this. He believed that people could "listen to his thoughts" which made him feel more anxious, depressed and paranoid. He also described beliefs in "a battle between good and evil" believing that he was on the evil side that was "losing". Dr Furst regarded the history as being consistent with Mr Webber suffering from paranoid delusions when he stabbed Mr Robins. He was also experiencing delusional beliefs that he was going to be killed and needed to capture soles in order to increase his power. He considered the delusions represented a defect in reason stemming from his schizophrenia and that he was unaware of the wrongfulness of his action at the time of the alleged offence. Dr Furst is of the view that Mr Webber has a most severe cases of schizophrenia (93.20T).
From his notes of the consultation in October 2012, Dr Furst said that Mr Webber expanded on his delusional beliefs about the battle between good and evil. He perceived that Mr Robins was "the ultimate enemy" and that fighting him was part of the battle. Mr Webber "thought it was the right thing to do at the time … and he had no choice" (94.15 - .45T). If he did not defeat Mr Robins, Mr Webber thought he would lose the battle and die. This, of course, is a bizarre delusion. On the basis of these contemporaneous delusional beliefs stemming from his schizophrenia, the doctor was of the opinion that he was unaware of the wrongfulness of his actions "at the time of the alleged offence" (Exhibit 1C, p 4).
Dr Allnutt's first evaluation was conducted over two days on 22nd and 28th March 2013 at E Ward, Long Bay Hospital. By then he was able to give an account of himself. He told Dr Allnutt (Exhibit V2, p 2): Prior to his incarceration he had thought that he was being followed by Government cars, helicopters and planes; he thought he was in a war; he was not sure what it was about; he thought this, because of all the helicopters that heard; he was the one being fought over; he was not sure they were fighting over him, the [sic] said possibly - he was not sure that they were fighting; his mind [was being] read by Government and Police and for this reason he tried to sleep on the rocks at Queenscliff because he thought that in doing so "stopped the brain waves by having rocks in between me and them"; he was reading the Bible a lot because he thought it was relevant to what was going on, but when I inquired why he could not explain. I have recited this passage, which in part repeats evidence I have set out above because to my mind it demonstrates that in large measure, the history received by Dr Allnutt is consistent with the type of delusional history received by Dr Furst. This suggests to me that it was not concocted. Given the past medical history and the consideration that Mr Webber has partly responded to anti-psychotic medication whilst detained, I consider this to be an accurate reflection of his deluded state of mind at the time he attacked Mr Robins. Of the attack he told Dr Allnutt (Exhibit V2, p 3): He believed that [Mr Robins] was trying to kill his family and believed that [Mr Robins] had been part of a conspiracy; he continued to believe that some sort of conspiracy persisted; he continued to believe that he was being watched by everybody including the guards, other inmates, doctors and nurses; he continued to feel fearful for his life at the hands of the authorities.
In another report prepared for the purpose of the case following his first consultation (Exhibit V1 26 March 2013) Dr Allnutt explained his opinion that Mr Webber was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure (a reference to the analysis of Dixon J in Porter) in the following way: [Mr Webber] had for a number of years laboured under the persistent belief that people were conspiring against him… These people involved authorities such as the Government and the police (the types of people that most members of the population would go to if they thought their rights would be breached) and thus his options with regard to dealing with his misperceived circumstances were limited. He easily incorporated other members of the community into his delusional belief system such as his neighbour" (in 2010) and when he incorporated other people into his delusional system he would have been impaired in his capacity to make rational decisions in relation to his proposed behaviour with regard to those people. In oral evidence, Dr Allnutt added (77.10T): "What happens when that happens is … because the person is now incorporated into an irrational belief system, what the sufferer infers about that persons intentions towards him becomes irrational as well". At the material time of the alleged offence he rapidly incorporated [Mr Robins] into his delusional system; he found justification for acting in the manner he did as a consequence of a sudden thought that occurred to him, that a) he had to kill the victim to stop the people from following him; and b) that the victim might be conspiring to kill his family. His decision to attack the victim appeared to be a relatively impulsive act driven by an immediate thought that occurred to him, but derived from long term underlying persecutory beliefs derived from a mental illness. He believed at the time that he was justified in doing this and the impression I gained when I interviewed him in the hospital was that he continued to hold the belief that he was justified in his actions at the material time the alleged offence occurred; This justification and strong sense of conviction is a fundamental characteristic of a delusional belief. The expert concluded: In my view, therefore, as a consequence of his delusional beliefs, his attribution of those beliefs to the victim, he would have been incapable of reasoning about the matter of wrongfulness with a moderate degree of sense (and) composure and would have available to him a defence of mental illness.
Both Dr Allnutt and Dr Furst have concluded that Mr Webber has the mental illness defence available to him. Trained psychiatrists often express themselves in this way, although in reality that conclusion is not a matter for them, but a matter for me as the "tribunal of fact".

Determination

This body of evidence, including the opinion of the experts actually persuades me on the balance of probabilities that, at the time he attacked and killed Mr Robins, Mr Webber was suffering from a severe case of paranoid schizophrenia. This is undoubtedly a disease of the mind. In my view, reviewing the evidence with the benefit of the expert evidence, he was probably suffering from that disease at least since his admission to Manly Hospital in December 2008. As the disease went untreated it probably steadily worsened over the years. From Const Goodhand's evidence I find that by April 2011 he was exhibiting the signs of the catatonia which characterised his presentation to Dr Furst in June 2012. By April and May of 2012 his behaviour had become more obviously bizarre; and episodes of strange, inexplicable behaviour more frequent. His apparent restlessness, travelling up and down the northern beaches region of Sydney by bus probably evinces his delusional belief that his mind was being read by the Government and police as part of a war between good and evil in which he was caught up. His attack on Mr Robins was completely random, impulsively spontaneous and brutal. That he persisted with it when an ordinary person would realise he was being watched and that many people were around is evidence of his defective reasoning. His attempted flight is explicable by his delusional beliefs about the police and their part in his "war"; so too his frenzied resistance, which Ms Kratka thought insane. His laughing was probably psychotic, and what was observed of him at the police station catatonic.
I accept the evidence of the experts that his stated justifications are the manifestations of a delusional belief system which is symptomatic of paranoid schizophrenia. I am satisfied that at the time he killed Mr Robins, Mr Webber suffered from a disease of the mind giving rise to a defect of reason such that he did not know that what he was doing was wrong according to the accepted standards of ordinary members of the community.
It follows from this finding that I will, in due course, deliver a special verdict of not guilty of the murder of Luke Aaron Robins by reason of mental illness. This conclusion makes it unnecessary to consider the issue of intention or the alternative defence of substantial impairment.
Before proceeding to pronouncing orders, I wish to make some additional comments.
I fully appreciate that Mr Robins was an entirely innocent victim of a brutal and frenzied attacked born of a diseased and deluded mind. He did not deserve to die. Although entirely unsuspecting of the danger until he was attacked, he fought his attacker bravely and with great spirit. He was obviously a young man of character. I offer my sincere condolences to his father and other family members who have been in court throughout the trial. I appreciate that my words cannot salve their sorrow, grief and sense of loss.
As I said at the outset, a special verdict is not the same as a verdict of not guilty. Mr Webber may not walk free from this court. It is apparent to me from the evidence I have heard that his disease is far from cured, indeed it seems to have been somewhat treatment-resistant given the evidence about the escalation of the treatment he is receiving in his present place of detention.
In these circumstances there is not the slightest question of it being appropriate to release Mr Webber into the community. I am not satisfied that he does not present a danger to himself or to others. Accordingly the effect of my verdict will be that Mr Webber will be committed to the long-term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, the Tribunal may not release Mr Webber into the community unless and until it is satisfied that he will not seriously endanger any person including himself.

Orders

My orders are: 1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness; 2. Under s 39 of the Act, Geoffrey Webber is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law; 3. I direct the Registrar to notify the Minister for Health of these orders; 4. I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the exhibits.

Amendments 16 November 2015 - Paragraph 24 - last sentence; the age of the deceased amended to 22. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2015

Mental Health (Forensic Provisions) Act 1990(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (4)