REGINA v. GILLETT [1999] NSWSC 115

GILLETT -7- IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HIS HONOUR: 1 Christian Matthew Gillett was indicted before me on a charge that on 5 April 1998 at Mona Vale in the State of New South Wales he did maliciously wound Keith Gillett, his father. 2 Although the former Chief Justice has issued Practice Note 98 in respect of the presentation of indictments in this court in respect of charges other than murder, piracy, treason and offences which are required by statute to be prosecuted in this court, the matter has proceeded here since the accused was originally indicted in this court for murder, however the Crown has elected to proceed only for malicious wounding, there being some doubt as to whether the death of Mr. Keith Gillett was occasioned by the acts of the accused. The accused had been arraigned in this court and committed to this court. The matter has been listed here and all the evidence may be conveniently given. 3 The accused had elected, by a written election of 5 November 1998 signed by him, for trial by judge alone pursuant to s.32 of the Criminal Procedure Act. That election records, as is required by s.32(1)(b), that the accused received advice from Siobhan Mullany, solicitor, in relation to the election and that as required by s.32(3), the prosecutor, T.R. Hoyle, SC., consents to the election on behalf of the Director of Public Prosecutions. The evidence has been provided to me in documentary form in a convenient volume by consent. This volume is marked Exhibit A. In all the circumstances I would not in the exercise of my discretion under s.16A of the Criminal Procedure Act 1986, reject the indictment. 4 The matter can conveniently proceed in this court. 5 The evidence discloses events of a deeply tragic nature affecting the accused and his father and mother. 6 Shortly, written admissions under s.184 of the Evidence Act tendered before me, record that the accused on the advice of his lawyer, Mr. D. Humphreys of the Legal Aid Commission, admits that as at 5 April 1998 he resided with his father, the deceased, at 27 Surf View Road, Mona Vale and was observed shortly after 10.00 am that day running from that residence. At 10.18 am, the ambulance station at Narrabeen received a call to attend to a male who had been assaulted at that address and upon the police arriving at 10.22 am, Keith Gillett, a double amputee, was found lying on the floor behind his wheelchair suffering from wounds that had clearly been inflicted by a mattock which was lying a short distance away. He informed the police that he had been attacked by the accused with the mattock. 7 Statements show that at 10.05 am on 6 April 1998, after visiting his mother's place of work, the accused was apprehended by police and taken to North Sydney Police Station where he participated in an electronically recorded interview. At the time of his apprehension, he appears to have been delusional, as is evidenced by his statements to the arresting police. 8 The transcript of the electronically recorded interview has been tendered in evidence. Many of the answers contained in it, as are noted by Dr. Nielssen, psychiatrist, in his report of 30 November 1998, are indicative of the accused suffering from mental illness acutely at that time. Dr. Nielssen, who gave oral evidence before me this morning, confirmed this. The accused denied that he had attacked his father. He appears to have asserted that denial while of the view that to do such a thing as was alleged to a man he liked would be terrible and thus it would have been unlikely for him to have so acted, although he also claimed a lack of memory for the relevant period. 9 Also tendered in evidence is the statement of Natalie Anne Rosa who saw the accused run from the house shortly prior to the ambulance arriving (and therefore shortly after the attack), the statements of the police officers to whom the accused's father complained of the attack on him by the accused, the ambulance officers' statements and those of medical practitioners establishing the severity of the wounds to Mr. Gillett and that he died on 15 April 1998 during his recovery from those wounds. 10 In addition, there was evidence from the accused's mother that from the age of 14 his behaviour had commenced to change until it became obvious by his late teens that the accused was suffering from a psychiatric illness. Over the years the police have had to be called on a number of occasions and the accused was, in about 1990, admitted to and assessed at the Royal North Shore Hospital, Cummins Unit. Whilst at this unit he medicated regularly. 11 Mrs. Gillett states that on about 6 May 1991, the accused attacked her with an iron bar, occasioning her severe injuries. He was apprehended and whilst detained at Long Bay Gaol was diagnosed by Dr. Westmore as suffering from schizophrenia and from that time on was medicated regularly with Haldol, complying with a community treatment order administered most recently through the Mona Vale Hospital. She remained in constant contact with Keith and Christian although living apart from them since the 1991 attack, the father and son having continued living together. She became aware that during the last six months, the accused had been using alcohol. 12 The attack is entirely consistent, in the opinion of the psychiatrists, Dr. Westmore who provided reports dated 14 April 1998 and 16 November 1998 and Dr. Nielssen who provided a report dated 30 November 1998 and gave oral evidence this morning, with that on the mother and with the accused's condition, as the psychiatrists diagnosed it. 13 Their reports disclose that they are both of the view that the accused was, at the time of the wounding of his father, suffering acutely from a psychosis, schizophrenia; that even if he were aware of the nature and quality of his act, he would have been deprived, on the balance of probability, from knowing that he ought not to do the act. 14 Dr. Nielssen, who has cared for the accused in the gaol system since shortly after his arrest, gave evidence and confirmed the diagnosis that he agreed with the view of Dr. Westmore. 15 Dr. Nielssen's report was provided to the Crown, puts the matter as follows:- "Mr. Gillett has a severe disabling form of mental illness which developed after a prodromal illness during which there was a marked disturbance of conduct, followed by the onset of acute psychotic symptoms of auditory hallucinations, ideas of reference and persecutory delusional beliefs." 16 The doctor went on to characterise the condition as schizophrenia and to note that the assault on the mother occurred during an acute episode induced by taking hallucinogenic trips and that the acute episode which resulted in the attack on the father was similarly induced; these episodes were characterised by the hallucinations, ideas of reference and persecutory delusional beliefs referred to:- "The reason Mr. Gillett assaulted his father was that he believed his father was trying to kill him and he [was] prompted by persuasive auditory hallucinations arising from an acute exacerbation of his chronic mental illness. I believe Mr. Gillett has the defence of mental illness open to him. He had a defect of reason in the form of a delusional belief that his father planned to kill him, owing to a disease of the mind, an acute exacerbation of chronic schizophrenia. He was aware of the nature and quality of his act but did not realise that the act was wrong, as he believed that his father was actually planning to harm him and he was prompted by persuasive auditory hallucinations." 17 On the accused's arrival at the Corrective Services institution following his arrest, he was diagnosed as floridly psychotic. Subsequently he has, on medication, been restored to his previous level of functioning and has received treatment with anti-depressant medication and counselling to help him accept the loss of his father. There is no issue but that he was fit to plead, and to make the election for trial and the admissions I have referred to above. There is plainly sufficient evidence he committed the acts which would have, except for the effect of mental illness, constituted the offence. 18 To Dr. Nielssen he confessed that he had attacked his father in response to a voice saying "Axe him", although this admission was made at a time when he was suffering from disordered thought, his cognitive function being clearly affected by the presence of the chronic mental illness. 19 He had, to Dr. Westmore, on that doctor's initial examination on 11 April 1998, asserted that he wasn't there at the time and that he was not sure who had hurt his father. He had denied any memory of the incident later in the interview. He had denied the attack to Dr. Nielssen at one stage. 20 Notwithstanding his denials which no doubt proceed from a lucid realisation of the circumstances of the tragedy and a desire to reject his role in it, on considering the whole of the evidence I am satisfied beyond reasonable doubt that the accused inflicted the wounds the victim suffered and that those wounds were inflicted with intent to injure: Regina v. Stokes & Difford (1990) 51 A. Crim. R. 25. Subject to the matter to which I will turn shortly, I am satisfied of all the elements of the offence of which the accused is charged beyond reasonable doubt. The presence of the accused at the scene, his fleeing the scene, the very nature of the attack and its consistency with his mental condition support my conclusion that those elements are made out to the requisite standard. 21 There remains however, the matter of mental illness. It is only necessary that this be established on balance of probabilities. I am entirely satisfied that the accused was mentally ill. The doctors are both of the view that the accused was, at the relevant time, psychotic. Their evidence in this respect is consistent with previous diagnoses and the relevant events. Their views are unanimous and unchallenged. I accept them. Therefore I find that at the time of the commission of the acts, the accused had the defence provided for those suffering from mental illness so as not to be responsible according to law for his actions. That is to say he was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong: Regina v. M'Naghten (1843) 8 ER 718; Regina v. Porter (1936) 55 CLR 182 at 188; and s.38 of the Mental Health (Criminal Procedure) Act 1900. 22 Being so satisfied, I return the special verdict required by s.38 of the Mental Health (Criminal Procedure) Act 1990, that is, that the accused is not guilty by reason of mental illness and make the order required by s.39 of that Act, that is, that he be detained in such place and in such manner as the court thinks fit until released by due process of law. 23 Christian Matthew Gillett, I order that you be detained in strict custody at the A Ward of the Long Bay Prison Hospital and thereafter in such other place as is determined according to law until you are released by due process of law.

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