REGINA v COLEMAN

LEGISLATION CITED : Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007

Mizzi v Regina (1960) 105 CLR 659 Radford v The Queen (1985) 42 SASR at 274-275 CASES CITED : Regina v Kemp [1957] 1 QB 399 Regina v McNaghton (1843) 8 ER 718 Regina v Porter (1933) 55 CLR 182 Regina v Quick (1973) QB 910

PARTIES : REGINA v Arnold COLEMAN

COUNSEL : C: J McLennan O: C Bruce SC

SOLICITORS : C: S Kavanagh O: S O'Connor

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

JUDGMENT 1 HIS HONOUR: The accused Arnold Coleman, was arraigned on indictment on 13 March 2009. He was charged with the murder of Jean Kathleen Coleman on 2 October 2008 at Goonellabah, New South Wales. 2 A fitness to be tried hearing was held on 27 May 2009 in which Adams J made a finding under s.14 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") that the accused was unfit to be tried. Adams J referred the matter to the Mental Health Review Tribunal pursuant to s.14(a) of the Act. 3 The Mental Health Review Tribunal determined pursuant to s.16(1) and s.45(4) and (5) of the Act that on the balance of probabilities the accused would not during the next 12 months become fit to be tried. 4 Bail was refused and the accused was remanded as a forensic patient at Long Bay Prison Hospital pursuant to the Mental Health Review Tribunal's determination under s.46(1) of the Act. The Tribunal unanimously confirmed these findings on 1 February 2010. 5 On 21 October 2009, the Director of Public Prosecutions, pursuant to s.19 of the Act, elected to proceed with the charge of murder against the accused.

6 On 24 February 2010, a special hearing pursuant to s.19 of the Act was held before this Court in Lismore, New South Wales. Mr C Bruce SC appeared for the accused. The Crown tendered two bundles of documents, Exhibit A and Exhibit B, which represented the material that both parties relied upon in the proceedings. Counsel for the accused did not contest any factual matters or Crown contentions. 7 The accused relied upon the defence of mental illness. This defence was based upon the evidence that at the time he killed Jean Coleman the accused was suffering from a psychotic disorder with delusions. The delusions centred on the victim, the accused's wife, having an affair with various neighbours. It has also been suggested that the accused was suffering from vascular dementia at the time of the offence.

The events occurring on the 2 October 2008 8 The events were the subject of the special hearing took place on 2 October 2008 at Goonellabah. The following account of what took place is largely based upon the admissions of the accused. 9 The deceased, Jean Coleman, was the accused's wife. The accused resided with her in their home at 14 Hillcrest Avenue, Goonellabah. On the morning of 22 October 2008, Athena Kontjonis, a community nurse, and Mrs Nobbs, the deceased's daughter, visited the accused and his wife. They departed shortly after 9.00 am. At approximately 10.45 am, the accused waited for the deceased to go to sleep. He then went and got a vegetable knife from the kitchen drawer and went back into the bedroom. After he got the knife the accused stated his intention was to kill his wife. 10 After watching the deceased sleep for several minutes the accused threw his body across the deceased, pinning her down to prevent her from escaping. A struggle ensued which lasted for approximately 20 minutes. The accused stabbed the deceased in the throat and then multiple times in the upper chest. He stated:- "She started to scream so I wanted to shut her up. I then just kept stabbing to make sure she would die . . . I made sure she was dead before I called 000." (Statement of Constable Puttock, Exhibit A, p.27) 11 At 11.11 am, the accused called police via the emergency 000 line. He told the operator that he had just killed his wife. 12 The accused was fixed with the delusion that his wife was having an affair. The accused repeatedly stated that he stabbed his wife "because she was playin' up for the bloke next door".

13 The accused has made multiple and consistent admissions to police and to medical staff since the incident.

Issues 14 The Crown is obliged to prove beyond reasonable doubt the elements of murder which are relevantly as follows:-

(2) That her death was caused by the actions of the accused, Arnold Coleman, by stabbing her in the neck.

(3) That at the time of committing those actions, Arnold Coleman intended either to kill Jean Coleman or at least to cause grievous bodily harm. 15 Whilst the accused had the benefit of the presumption of innocence the way the case proceeded, there was no issue concerning proof of the elements of the offence. In relation to the issue of the accused's mental state at the time of the offence, Mr Bruce, on behalf of the accused, contended that, at the time of doing the act causing death, he was mentally ill so as not to be responsible in law for his acts. 16 In the circumstances to which I have referred and on the evidence in Exhibit A, there is no difficulty in concluding beyond reasonable doubt that the accused, by his deliberate acts, caused the death of the deceased and possessed the requisite intent to do so. 17 The only issue in this trial is whether the accused has available to him the defence of mental illness. 18 The fundamental role of the law is to hold people responsible for their actions. It is recognised, however, that a person may not be so responsible by reason of mental illness. 19 The onus of proof of the defence of mental illness rests upon the accused to prove the defence on the balance of probabilities: Mizzi v Regina (1960) 105 CLR 659. 20 Section 38(1) of the Act provides:- "If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 21 The Act does not define the term mentally ill. The term must be determined in accordance with the M'Naghton Rules laid down in Regina v M'Naghton (1843) 8 ER 718.

The test for mental illness 22 The statement of the test for the defence of mental illness was propounded in the case of M'Naghton (supra). The accused must establish that, at the time the acts were committed, he was suffering from a defect of reason, from a disease of the mind, so as not to know the quality and nature of the act he was doing or, alternatively, if he did know it, that he did not know that what he was doing was wrong. 23 It is important that I identify the principles that govern the test to be applied in this case and to which I will be referring later in this judgment when I come to consider the medical evidence. 24 In relation to the applicable principles, the High Court has stated that if through disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure or did not know it was wrong according to the every day standards of reasonable people, it may be said that he could not know that what he was doing was wrong: Regina v Porter (1933) 55 CLR 182 at 189-90. 25 The law requires that the accused's state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or of long standing, whether curable or incurable: Regina v Kemp [1957] 1 QB 399. The distinction to be drawn is between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor which is transient, that is, passing and not prone to recur: Regina v Quick (1973) QB 910, cf Radford v The Queen (1985) 42 SASR at 274-275. 26 To establish that the accused was mentally ill so as not to be responsible according to law for the act of killing Jean Coleman the defence must show that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of those physical acts or that he did not know that those acts were wrong. 27 The determination of the issue of whether the accused was mentally ill at the time of the offence turns on the evidence of three experienced forensic psychiatrists.

The accused's medical history from 2005 to 2 October 2008 28 Prior to 2005, the accused had no recorded history of mental illness. Although he was noted to have always been very possessive of the deceased, his possessiveness did not appear to have been detrimental until 2005. 29 On 17 October 2005, the accused was admitted to St Vincent's Private Hospital with suicidal ideation. The accused's niece, Lynne Marsters, indicated that the accused had "come to stay with her, having delusions about wife having an affair". 30 In 2005, the accused was referred and treated by Community Mental Health Services for delusional symptoms. Dr Petroff assessed the accused on 19 October 2005 and noted that the accused "does have homicidal thoughts and may act on these if he could prove Jean is seeing another man". 31 The deceased told her daughter, Helen Nobbs, that in 2005 the accused had tried to strangle her while she was in bed. This incident was acknowledged by the accused when interviewed by police on 2 October 2008. He stated, "I tried to strangle her by falling on top of her and choking her down, then I woke up to meself and she pulled me back out of it". 32 During 2005, the accused was treated with medication by Dr Pettroff for a morbid jealousy syndrome and later reported the disappearance of the delusional symptoms. However, Dr Ward, psychiatrist, noted in 2008 that the period between the accused's symptoms subsiding in 2005 due to medication and relapse when he stopped taking the medication does not appear to have been lengthy.

33 On 17 March 2008, the deceased and Lynne Marsters reported to Meredith Ward from Richmond Aged Care that the accused had "paranoid ideas that (the) wife was having affairs, setting traps for her - this has been occurring on and off since 2005". It was also noted that the deceased found these allegations very distressing. 34 Upon referral from Meredith Ward for "increasing themes of morbid jealously re wife", the accused saw Dr Ward on 15 April 2008. Dr Ward noted similar themes present in the accused's current delusions as when the accused was treated in 2005. 35 The accused reported that he had been suffering from his current delusional symptoms for the previous 18 months to two years. Dr Ward noted that the accused's reasoning regarding his wife was increasingly bizarre.

The accused's mental history from 2 October 2008 to the present 36 Athena Kontjonis, a community nurse, saw the accused at home on the morning of 2 October 2008. She noted that the accused seemed happy although a little confused. 37 Following the incident, police admitted the accused to Lismore Base Hospital where Dr Peter Siepkon examined the accused. Dr Siepkon determined that the accused was suffering from a mental illness with a disorder of thought. He was found to be mentally ill with "fixed psychosis" and mild to moderate dementia. 38 Staff at Lismore Base Hospital noted the accused's delusional beliefs regarding his wife. The accused stated to staff that his wife was playing around, that she had done it three times in the past and that proof of this was because "she went out to the garbage at least three times a day". The accused also claimed that his wife was never there when he wanted her and that she would sleep all day and be up all night which he claimed was further proof of her infidelities. 39 John Lyons, a registered nurse at Lismore Base Hospital, noted that the accused was not suffering from hallucinations but he noted evidence of some distorted/delusional thinking regarding the accused's wife's behaviour. He concluded, "The overall impression is of an 87 year-old male who does not understand the seriousness of his actions". 40 A CT brain scan report dated 3 October 2008 of the accused noted no abnormalities other than "several tiny chronic lacunar infarcts in the external capsulae and in the right corona-radiata with poorly defined hypoattenuating areas in the periventricular white bilaterally consistent with age related change and/or chronic small vessel ischaemia". 41 On 8 October 2008, staff at Grafton Correctional Centre noted the accused's continuing delusional beliefs regarding his wife. The accused stated that he had killed his wife and that she was having affairs with neighbours and Jimmy Little. 42 The Mental Health Tribunal report of 14 January 2010, compiled by Ms Emily Tartecova, Dr Elizabeth Page and Dr Leila Cavanaugh, was of the opinion that the accused is certainly suffering from dementia and appeared to be suffering from psychosis. However, the Tribunal noted that the relationship between the psychosis and the dementia remains unclear. 43 The NSW Community Forensic Mental Health Service produced an Initial Risk Management Report regarding the accused it was prepared on 15 December 2009 by Ms Tartakover, Dr Page and Dr Kavanagh. The report expresses an opinion that the accused is suffering from a Psychotic Disorder, most likely to be a delusional Disorder Jealous Type, of long standing. The report concludes that the accused's dementia is a separate entity unrelated to his psychosis and is not as significant as previously thought. The report states that in the past the accused had historically been able to contain his delusional ideas, however environmental stressors, such as Urinary Tract Infections, or surgical interventions may have caused him to verbalise and then act on his delusional system. Expert medical evidence 44 Three experienced forensic psychiatrists produced reports which were tendered as evidence. Dr Sinclair prepared a report at the request of the Local Lismore Court. The Crown submitted a report by Dr Delaforce and the report by Dr Westmore was submitted on behalf of the accused. There is a strong consistency between the three psychiatric opinions in relation to this matter.

(1) Dr Barbara Sinclair 45 Dr Barbara Sinclair, psychiatrist, prepared a report at the request of the Lismore Court on 1 December 2008. 46 The accused and the deceased had been married for 17 years. The accused was impotent for the entirety of his marriage to the deceased due to peripheral vascular disease and after the amputation of the accused's leg, this jealousy and possessiveness was noted to have worsened. 47 The accused repeatedly reported to Dr Sinclair that he had killed his wife because of his belief that she was having an affair. He stated, "All I wanted was to stab her; I wanted to finish her off; she was not interested in me; she was on with the bloke next door". 48 When the accused was asked why he thought his wife was having an affair he stated, "No idea". Dr Sinclair noted that the accused had not seen anything, heard anything or was told anything by anybody that would suggest that his wife was having an affair. The accused stated, "I just know it". 49 Dr Sinclair conducted a psychiatric assessment of the accused on 3 November 2008. She was of the view that the accused was suffering from vascular dementia with psychotic features and that he had developed an entrenched and delusional belief about his wife's infidelity at the time of the offence. Dr Sinclair regarded the aetiology of the delusional belief system as originating in his peripheral vascular disease leading on to dementia. Dr Sinclair expressed a view that she thought the accused was mentally ill and noted that he still had ongoing delusional beliefs about his wife's infidelity. She also noted that the accused appeared to be experiencing hallucinations, specifically that since his wife's death he had heard her talk to him.

(2) Dr Robert Delaforce 50 Dr Robert Delaforce saw the accused on 13 February 2009. He reviewed the evidence in the Crown case including the accused's prior medical records, medical reports and the record of interview conducted by police with the accused. Dr Delaforce also had access to Dr Westmore's first report dated 30 January 2009.

51 Dr Delaforce noted that the accused had a history of entrenched delusional beliefs regarding the infidelity of his wife. These delusions were first noted in 2005 by the Aged Care and Assessment Team.

52 Dr Delaforce noted the accused was always very possessive of the deceased. He stated that the accused would "be more prone with increasing age and therefore increasing likelihood of cognitive decline to have problems with jealousy".

53 Dr Delaforce considered that the records examined by him including medical records and statements from family members revealed a marked change in the accused's behaviour from 2005. 54 He concluded that by 2005 at the very latest the accused's jealousy had reached a serious stage. Probably in 2005 at the latest this represented a delusion of jealous type.

55 As to a diagnosis of Vascular Dementia, Dr Delaforce stated that although the accused was first diagnosed in 2005 he did not consider his cognitive difficulties were of substance until 2008. He noted there is "a substantial risk in assessing Mr Coleman's cognitive functioning in his visual and hearing difficulties because unless they are noted at the time their effects can be misinterpreted as cognitive dysfunction". He concluded the accused had suffered from Dementia of Alzheimer's Type and/or Vascular Dementia with Delusions probably since 2008. He attributed the prior delusions suffered by the accused from 2005 to a "psychotic disorder, with delusions due to the vascular and other changes". 56 Dr Delaforce noted extensive and consistent corroboration of the accused's reported delusional beliefs that his wife was having affairs. He noted that the accused had no basis on which to form these beliefs:- "Instead he had inappropriate ideas beyond just jealous thoughts, such as because his wife met the man at the garbage bin that meant to him that his wife must have been unfaithful". 57 Dr Delaforce went on to state that these beliefs were not just jealous beliefs. They were delusional thinking. Dr Delaforce also noted that the accused's emotionally cold behaviour regarding the incident is also consistent with a delusional belief system. 58 Dr Delaforce concluded his report by stating (at p.22):- "I would support here the use of the defence of mental illness against the charge of murder. Mr Coleman because of his defect of reason from a disease of the mind, his Dementia with Delusions, could not appropriately and sufficiently calmly reason to allow him to appreciate the wrongness of his act he reported as stabbing his wife with intent to kill. The defect of reason included instead his unsupported belief of his wife's infidelity."

(3) Dr Bruce Westmore 59 Dr Bruce Westmore examined the accused on 27 January 2009. He had reviewed the reports of Dr Delaforce and Dr Sinclair. 60 He concluded in an addendum report dated 4 February 2010, specifically addressing the issue of the defence of mental illness, that:- "Based on the additional history and my diagnosis that Mr Coleman suffers from dementia, then he would have available to him a defence of mental illness. He suffers from a disease of the mind, which would totally deprive him of the capacity to know that he ought not to do the act."

Conclusions 61 As to the elements of murder, I am satisfied beyond reasonable doubt, that on 2 October 2008 at Goonellabah in the State of New South Wales:-

(2) That her death was caused by the actions of the accused, Arnold Coleman, by stabbing her in the neck.

(3) That at the time of committing those actions, Arnold Coleman intended to kill Jean Coleman.

62 Accordingly, on the basis of those findings and pursuant to the provisions of s.21A of the Mental Health (Forensic Provisions) Act, I determine that the accused, Arnold Coleman, committed the offence charged in the indictment referred to in paragraph [1] of this judgment. 63 Regarding the availability of the defence of metal illness to the accused, it is clear on the evidence that the accused has always been very jealous and possessive of the deceased. This possessiveness significantly worsened since 2005. 64 It is equally clear that over several years since at least 2005, the accused has suffered from Delusional Disorder, Jealous Type and that, from probably 2008 onwards, the accused was also suffering from dementia. 65 It is evident both from the medical reports and statements of family members that the accused possessed a delusional belief that Jean Coleman was having an affair. That delusional belief and its various manifestations has clearly been present at least since 2005 and is regarded as having been entrenched by at least 2008 and it continues to be the accused's belief system to date. This delusional belief was certainly the accused's motivating factor in killing his wife. 66 On the evidence it is clear that the accused, at the time that he stabbed his wife, Mrs Jean Coleman, suffered from an abnormality of mind specifically dementia with Delusional Disorder, Jealous Type. This abnormality of mind significantly impaired the accused's perception of events and his ability to know right from wrong. 67 There is a strong consistency between the psychiatric opinions in relation to this matter. Dr Westmore and Dr Delaforce are essentially in agreement that he has available to him the defence of mental illness in that the accused had a defect of reason arising from a disease of the mind. Although there appears to be some divergence at what point in time the accused began to suffer from dementia, it is however unnecessary to intensely scrutinise this divergence. It is sufficient to say that either vascular dementia in and/or a Delusional Disorder would provide and does provide an adequate basis for the defence of mental illness. Practical and legal consequences of a finding of not guilty by reason of mental illness 68 Section 39 of the Act provides:- "(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order." 69 The legal and practical consequences of a finding that the accused is "not guilty on the ground of mental illness" may be shortly stated. 70 The statute which governs cases like this, namely, s.39(1) of the Mental Health (Forensic Provisions) Act, requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal. 71 The Mental Health Review Tribunal consists of a president and his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task. 72 The Tribunal is required to review the accused's case as soon as practicable after an order is made for his detention in strict custody. The Tribunal may make orders as to his continued detention, care or treatment, or as to this release. 73 The Tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused. 74 Where an order for release is not made, the Tribunal orders result in continued detention, care and treatment in a place and manner specified by the Tribunal. 75 After the initial review, the Tribunal must, at least once every six months, again review the case and make orders as to the accused's continued detention, care or treatment in a hospital, prison or other place or as to his release. 76 If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for his apprehension, care and detention. 77 The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in educational and therapeutic programmes, to ensure that the accused is properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients. 78 Security conditions (as necessary) are in place while the accused is detained in a hospital, prison or other place or if he is allowed to be temporarily absent from the place of detention. 79 The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered.

Risk Management Report 80 The NSW Community Forensic Mental Health Service have produced an Initial Risk Management Report regarding the accused which was prepared on 15 December 2009 by Ms Tartakover, Dr Page and Dr Kavanagh. 81 The report noted that the accused's psychotic symptoms remain active and that the accused remains a risk not only to himself but also to others. 82 The accused currently suffers from a range of general medical conditions and is currently suicidal although the report noted that there may not be sufficient evidence to satisfy a diagnosis of Major Depressive Disorder. 83 It appears that in the past the accused has historically been able to contain his delusional ideas, however environmental stressors, such as Urinary Tract Infections, or surgical interventions may have caused him to verbalise and then act on his delusional system. The report concluded that in the event that the accused contracts another infection, there is a risk of him acting violently towards someone (more likely a female, given his history) with whom he perceives he has some kind of relationship. 84 Treating the accused's psychotic illness with low dose antipsychotic medication and any infections together with close monitoring of his mental state might protect against this risk. 85 The report expressed the opinion that the accused suffers from a mental illness, as defined by the Mental Health Act 2007, in that he has a condition that seriously impairs, either temporarily or permanently, his mental functioning and is characterised by delusions and relevantly for the question of disposition:- "It is our opinion that there are reasonable grounds for believing that care, treatment and control of Mr Coleman is necessary for his own protection from serious harm and the protection of others from serious harm. If left inadequately treated, Mr Coleman's condition is likely to deteriorate and he will thus remain a risk to himself and others" (Initial Risk Management Report, Exhibit B, p.17). 86 Upon the basis of that report the Crown submitted, and Defence counsel did not submit otherwise, that the Court could not be satisfied on the balance of probabilities that the release of the accused, either subject to conditions or not, was the appropriate order. The Crown further submitted that the accused should remain detained in the Long Bay Hospital. 87 Pursuant to s.43(a) of the Act, the Initial Risk Management Report anticipated that if there is some improvement in his mental state in the future, on the balance of probabilities, the safety of the accused and the public is unlikely to be seriously endangered by his release to a locked ward at Macquarie Hospital. I consider, on the evidence, an order should be made for Mr Coleman's detention under s.39(1) of the Mental Health (Forensic Provisions) Act. Orders 88 I am satisfied and I find that at the time of doing the acts causing death the accused was mentally ill so as not to be responsible in law for his acts and, accordingly, I am required to return a special verdict. 89 Arnold Coleman, upon the charge that on 2 October 2008 at Goonellabah in the State of New South Wales you did murder Jean Kathleen Coleman, pursuant to the provisions of s.22(1) of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness. 90 I order that the accused be detained, pursuant to s.39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. 91 The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by this Court. 92 Finally, I would like to take the opportunity of extending my deepest sympathy to Mrs Colman's family, who would undoubtedly be deeply affected by this tragic event. **********

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