REGINA v HAM

REGINA v HAM - [2009] NSWSC 296 - NSWSC 2009 case summary — Zoe

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The evidence of Mrs Thomas 56 It is apparent, as Mr Stratton submitted, that no-one would be more familiar with the accused and his problems than his mother, Mrs Thomas. It is important to observe that no suggestion was made that Mrs Thomas' evidence was in any way unreliable, false or overstated. As Mr Stratton also observed, the telephone intercept material to which I will refer corroborated the account given by her as to the accused's bizarre beliefs. Mr Stratton submitted that the evidence as a whole establishes a very strong case of mental illness. 57 Mrs Thomas' evidence establishes a lengthy history of drug taking by the accused and a belief held by him, that he was the victim of a conspiracy to sexually assault him. The belief was that the parties to the conspiracy included a fictitious figure referred to as "Morgan". According to Mrs Thomas' account, the accused also held a belief that she was party to the conspiracy and charged customers $600 for them to have sex with him. 58 Mrs Thomas said that the accused was diagnosed with ADHD at the age of five. From an early age he exhibited a number of abnormal behaviours. Mrs Thomas said that he would double check that the house was securely locked up and he would not drink out of anything that was not sealed. 59 At age 11, he started smoking marijuana and progressed to the drugs speed, cocaine, ecstasy and heroin until about 15. At age 15, he commenced using the drug "ice". She said he gradually got worse referring, in this respect, to "his phobias and conspiracies". 60 When asked if he ever became violent after having used "ice", Mrs Thomas said "only with me". She said he had once pressed her against the wall and demanded she tell the truth. He said to her: "We can do this the easy way or we can do this the hard way mum, but you've got to tell me the truth". Four and a half years ago, when he was living at Mayfield, he had produced a knife and demanded to know the truth because she said he believed she was the cause of him being repeatedly raped. 61 In cross-examination, she said the "conspiracy theory" started with the accused at age 14 (about eight years ago). According to her evidence, he since expressed the idea of it on a daily basis. He continued to express it, she said, when he was drug free. 62 Mrs Thomas said the accused did not disclose anything about his true thoughts to anyone until about four months prior to her giving evidence. She said that he would never allow her to tell anyone. 63 She said that she located a number of pieces of paper in the accused's handwriting. Exhibit 1 was located by her about four and a half years ago. She said he would constantly search for a note book in which he believed she recorded the names of customers who were going to have sex with him. Exhibits 2 and 3 were other documents written by the accused. 64 Mrs Thomas said the accused believed she was involved in money laundering the proceeds of the sex activities which he believed she instigated. The accused would often come to his mother's shop looking for notebooks which he believed recorded the names of customers who were paying his mother to have sex with him. 65 She also gave an account of a time when her son lived above the shop of him taking elaborate precautions to lock himself in his room to protect himself from those he believed were intending to sexually abuse him. On one occasion, Mrs Thomas entered his room and saw a box that he had constructed and which he used to live in. 66 The accused would often pull down his pants and show her his anus as proof of the rape. 67 Mrs Thomas gave evidence of conversations she had with the accused on 9 September 2007, shortly after the accused had started living with the deceased. He said to her (transcript, 26 May 2009, p.46):- We can do this the easy way, we can do this the hard way. If you don't start telling me the truth I'm coming around to get you. I'll come through the roof and smash through the glass window and Justine won't fucking stop me. So we can do it the easy way, or we can do it the hard way. You've got to tell me the truth . "

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77 In relation to Rebecca Baillie, the accused said:- " I haven't got Rebecca's car. I stole Rebecca's car when I like found her on the fucking lounge … there was plastic bags. I'm not explaining all that. I'll explain it to you when I get there like. I don't know, who done it. I went out searching that night 'cause I, I wanted to get on. And I went out looking and some, like I don't, I don't know what happened, mate. Just fucking, she broke up with her husband. He was there that day. He threatened to punch her in the mouth ." 78 At 5.33 pm, the accused said to his mother: "No, let's not talk about Rebecca. You should be more worried about yourself". 79 Mrs Thomas said to police about the conversation with the accused after Ms Baillie had been killed "Tyron sounded different than ever before and he was still on ice. I could tell, but there was difference in his voice on this occasion". She said it sounded as though "something else was going on". The ERISP 80 Police interviewed the accused on 15 September 2007. He initially told police that on the night that Ms Baillie died, he was walking the streets breaking into vehicles in order to get money and/or property. He called it "searching". His story was that he returned to the house to find her dead on the lounge, and proceeded to take her rings off her fingers and steal her car. 81 The Crown submitted that reliance could not be placed upon the accuracy of the account or the version of events given by the accused when interviewed. The Crown contended he was not irrational when interviewed by police at least in the sense that he would stay with the question and answer it, or if he drifted from the point, he was brought back to it. He either came back to it himself or the police officers would bring him back. The Crown submitted that the video of the interview does not demonstrate a person who was disordered in his thinking. 82 The Crown emphasised that the accused initially gave a false story to the police and it was only when the police reminded him that they had information from his mother that he told the police about the stabbing. 83 Mr Stratton submitted that the record of interview in fact provides strong and clear evidence that the accused was mentally ill at the time he was interviewed by police. In particular, it was submitted this was indicated by his attempts to tell police about his delusional belief in the conspiracy. 84 In a number of answers given in the interview, the accused suggested that he wanted to talk about something else and "go back to the start". At answer 182, he says, "I just think there's something else, like half this time like I was just thinking about something else" and at answer 184, "like right back to the start, look, just start … word from word … ". 85 Certain answers given by the accused are consistent with the evidence concerning the particular delusion which the accused believed in. The accused made reference to:-

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93 As to the fourth entry, Dr Nielssen noted:- " An entry dated 3 July 2006 reported a visit by Mr Ham's mother to the community health centre during which she expressed her concern about Mr Ham's belief that he had been sexually assaulted in the past and that he had threatened her with a knife ." 94 Each of these four entries corroborated the fact that the accused had been assessed with mental health issues. Three of them made reference to a belief in the accused of having been sexually assaulted. 95 In considering whether to accept as a fact the account given in evidence by the accused's mother of her son having experienced delusions and hallucinations over a period of years before the event on 13 September 2007, the clinical histories given to the psychiatrists, Dr Nielssen and Dr Allnutt may, to a point, be considered to be corroborative evidence as to the accused's previous mental health problems. 96 Dr Nielssen said that he did not, on his initial interviews, obtain the accused's full history of hallucinations and voices continuing while in custody. The accused gave an explanation for not initially referring to them when first seen by Dr Nielssen. This was that he was "scared they would lock me up in a mental ward". 97 When asked by Dr Nielssen whether he believed he had any kind of mental illness, the accused said (transcript, 27 May 2009, p.123):- " It's all because of drug abuse. I went into a mental ward because of drug psychosis and they gave me pills. My mum wanted me to get pills. She was telling doctors stuff trying to stick me on Zyprexa. I was really afraid of being a nut job. I did not want that ." 98 Dr Nielssen interviewed the accused again on 30 April 2009. When asked about his previous responses, the accused said:- " I lied to you at the first time. I didn't tell you about my mother and that because she paid people to rape me. That's why I killed Rebecca. I thought Mum was selling me. I had a weird feeling about her, like she's in on it. That's why she was making the phone calls. She was drunk and smiling at me. I thought she was laughing at me getting raped. That night I was sitting in the room with all the things pushed up against the door. I thought they were waiting until I go to sleep so they could rape me. I heard voices from outside saying it, mad voices saying watch me suffer and they've trapped me. 'Wait till he goes to sleep .'" 99 Dr Allnutt interviewed the accused on 19 October 2008 and was suspicious that he was not providing a full account of his mental function. On 9 February 2009, Dr Allnutt reassessed him. On that occasion, he described a number of symptoms of psychosis, including the delusional belief that his mother was "in on raping" him, which he had initially denied to Dr Allnutt on his initial assessment. 100 Dr Allnutt asked the accused why he had given a different account to the one that he had given to Dr Nielssen. The accused replied he thought that Dr Nielssen might throw him in a mental ward. Dr Allnutt put to him that his account to Dr Nielssen suggested that at least partly his motive was that he believed that Ms Baillie was seeing other men. He agreed that this was a thought that he had. The accused stated that he was providing a more complete account to Dr Allnutt because his father had encouraged him to be honest. 101 The initial impression Dr Allnutt had of the accused was that he had underlying symptoms of mental illness but was feigning sanity. By this Dr Allnutt meant that the accused was pretending to be more mentally well than he was and was embarrassed about disclosing that he had been a victim of sexual abuse by his mother. Dr Allnutt explained that people with mental illness can give varied accounts which makes it difficult for experts. However, he felt that other evidence of the accused's delusional beliefs, indicated symptoms of mental illness. 102 The Crown referred to the difference in histories given by the accused to the different doctors. 103 When interviewed by Dr Furst, the accused said he had lied to doctors at Maitland hospital when he was admitted there for psychiatric assessment in 2004. The reason he gave for this was that he wanted to get out of the hospital and did not want to be a mental patient. The accused did not tell them that he was hearing voices about his impending rape. 104 The accused told Dr Furst that he was in fact embarrassed about the nature of his beliefs and never told anyone except his mother about them. 105 Mr Stratton asked Dr Furst if there was anything particularly unusual about someone with paranoid delusions being very guarded about telling other people about the delusions. Dr Furst explained that it is quite typical in the first episode of psychosis, particularly when the belief is centred around the kind of topic in this case, the nature of the belief being quite embarrassing to him. It is not uncommon for people, particularly when they are genuinely psychotic, to hold on to such delusions as if they are true and not identify them as a false belief or a delusion. 106 Mrs Thomas gave evidence about her son's failure to openly discuss his delusions. During her cross-examination (transcript, 26 May 2009, p.56), she explained that although she took him to see mental health professionals, he never disclosed his thoughts to them. Additionally, the accused would not allow Mrs Thomas to tell anyone and would get very angry if he believed she had done so. The relevance of drug use

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107 The relevance of drug use in respect of the defences of mental illness and substantial impairment, an important matter in the present case, was discussed by Kirby J in Regina v Jennings [2005] NSWSC 789. His Honour stated:- " 31. I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory. 32. On the other hand, as explained by the medical evidence given in this case, drugs or alcohol may, in certain individuals, trigger an abnormality of mind, that is, bring about some physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment may, in that circumstance, be open, or indeed, the M'Naghten defence may be available if the impairment were total. 33. There is a further alternative. According to the medical evidence, it has some relevance to Mr Jennings. A person may, by reason of an abnormality of mind (that is a pre-existing psychiatric condition), resort to drugs and/or alcohol to deal with the discomfort caused by symptoms arising from that condition. The drugs or alcohol, once taken, may add to the impairment already suffered by that person. Should that happen, the M'Naghten defence, or the partial defence of substantial impairment, may be available to that person ." 108 I consider these observations to be pertinent to the issues in the present case. 109 When asked by the expert medical witnesses about recent symptoms, the accused said that he had continued to experience hallucinations of voices, including the voice of his mother and unfamiliar voices that seemed to be coming from nearby that said things like, "I love you" and, "telling me they're raping me". 110 The accused also told Dr Allnutt that he had ongoing delusional beliefs relating to his mother and ideas of reference, receiving messages from the TV, and hearing voices in the absence of drugs. These experiences were reported as occurring while he has been in custody over the last two years. This was a factor in Dr Allnutt concluding that the accused suffered from "a true mental illness" such as schizophrenia, which had been exacerbated by drug use.

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… Even after tying her up. Because I don't think that he was - I mean, the reason I say that is I don't think that he really - I think that he believed that she was involved in a conspiracy where there were other people involved in this including Morgan and the mother and so on, so the threat existed and even when no-one was in the house before that, as I said earlier, the threat existed ." 117 The Crown submitted that a number of other factual matters occurring after the stabbing establish that the accused knew the difference between right and wrong. Firstly, reference was made to the fact that within hours of the stabbing the accused bought the drug "ice". Secondly, that he paid for it in part with some rings that he had taken from the deceased's body. Thirdly, that he said to one of his associates at that time, "You don't know what I've done. I'm good for 25 years to life". 118 Dr Furst explained that these matters might indicate that he knew what he had done was wrong in a legal sense but they do not necessarily affect the moral quality of the act or whether he understood that what he had done was morally wrong. Dr Furst's opinion was that the accused did not understand that it was morally wrong to kill Ms Baillie and that he thought he was morally justified at that time in killing her. Those actions are not necessarily inconsistent with the fact that the accused, when he killed Ms Baillie, was mentally ill and was acting in response to delusions. Dr Allnutt gave a similar account, suggesting the accused was aware of the legal wrongfulness of his actions. 119 The Crown also referred to an answer given by the accused in the ERISP (Q.965):- " I knew what I was doing. Like, I didn't know if I should really do it because, you know, the girl only wants, you know - " 120 Dr Allnutt explained that this answer suggests ambivalence in the accused. By this he meant that the accused was trying to reason about the decision to kill Ms Baillie but has not necessarily concluded that killing her would be wrong. Although the accused may have been aware that killing Ms Baillie was wrong, his thinking processes and reasoning ability were so disordered that he could not apply his reasoning to the decision. 121 The accused also told Dr Allnutt that he took two rings, "maybe because she lied about loving me". On the account given by the accused to Dr Nielssen, the accused said he had an argument with the deceased which stemmed from mixed messages he had received. He said she told him that she loved him but that she was also seeing other boyfriends who were "there all the time". Matters in common on the medical evidence 122 The approach I intend to take to the medical evidence given by Dr Nielssen, Dr Allnutt and Dr Furst is to identify the matters they are agreed upon before considering the material difference or differences in their analyses and opinions. 123 The medical witnesses appeared to agree upon the following matters:-

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Dr Olav Nielssen 128 Dr Nielssen had the benefit of having interviewed the accused on four occasions: 6 November 2008, 14 November 2008, 15 January 2009 and 30 April 2009. 129 His opinion was that at the material time, the accused laboured under a defect of reason in the form of a delusional belief arising from a disease of the mind, an underlying psychotic illness. In Dr Nielssen's view, the accused, however, understood that he was stabbing Ms Baillie and that the stab wounds were probably fatal. 130 In evidence in chief, he said the accused would also have known that what he was doing was wrong on the basis that anyone would know that killing someone was wrong and his grounds for killing her were not so greatly affected by delusional beliefs. In his opinion, it was an act of revenge rather than an act he had to take because of his delusional beliefs. 131 Dr Nielssen stated that the use of amphetamines in the week before and on the day of the alleged offence was the main factor in relation to his mental state. Aside from the intoxicating effect of drugs, Dr Nielssen stated that the accused did have an underlying chronic illness and that the delusional beliefs which he had held may have developed or expanded to include Ms Baillie. However, he considered that he would not have had the same level of arousal or fear if he had not been taking amphetamines. 132 Dr Nielssen's initial opinion therefore was he did not have a defence of mental illness. 133 He agreed in cross-examination that the accused had a considerable family history of mental illness and that relevant scientific research showed such a predisposition to mental illness may be triggered by the use of amphetamines. 134 Dr Nielssen accepted as a fact that the accused held the same delusional belief for some years though varying in intensity associated with drug use. Aside from delusional beliefs, he said the accused also had persisting auditory hallucinations which Dr Nielssen said were due to mental illness. They are, he said, classic symptoms of schizophrenia and were described as "first-rank" symptoms. 135 Dr Nielssen's revised opinion was that the accused's appropriate diagnosis was the disease of schizophrenia and that he had probably suffered from it since his admission to Maitland Hospital in 2004. He considered the accused suffered from that condition at the time he killed the deceased and that it gave rise to an abnormality of mind. 136 As I have earlier observed, the Crown properly acknowledged that Dr Nielssen contradicted himself in relation to the accused's condition in one important respect. That contradiction arose in cross-examination. Dr Nielssen had earlier said that he believed that the accused did know and understand that what he was doing was wrong. At a later time in his evidence, he gave evidence as follows (transcript, 27 May 2009, p.133):- " Q. And again in terms of that material time, in your opinion, did he know what he was doing was wrong in the sense that he could not reason with some moderate degree of calmness in relation to the moral quality of what he was doing? A. Well I think he did, would have known that what he was doing was wrong.

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(4) The fact that, at times, psychotic symptoms continued after the accused stopped ingesting amphetamines such as when he was in custody. This was an indicator that something independent of drugs was accounting for his disorder of mind. 147 The history of the accused's symptoms to which I have referred has been the subject of accounts given by Mrs Thomas to medical practitioners, to treating mental health practitioners and to this Court. The history is consistent with a long-standing psychotic illness. I was impressed by Mrs Thomas as a witness and I accept her accounts of her son's psychotic symptoms, the circumstances in which she said they had arisen and, at times, their continuation after drug-taking ceased. 148 Dr Allnutt also gave evidence as to the reasoning capabilities of the accused. He said (transcript, 29 May 2009, p.166):- " His reasoning abilities are significantly impaired. There's no evidence that anybody has ever raped him. There's no evidence that anybody has anally raped him and yet, despite this, he can't see the reality. He is completely disconnected from that ability to see the truth. He's completely convinced in himself, that this has been happening for him for most of his life. To the extent that at times he's locked himself up in the ceiling to try and prevent people from persecuting him .. ." 149 Dr Allnutt was then asked whether or not the accused's abnormality of mind was such that his ability to judge right from wrong was substantially impaired. In this context, Dr Allnutt gave a long answer premised on the fact that the accused has lived for a long period of time with the delusion or "strong conviction" that his mother has been conspiring against him to have him raped. Dr Allnutt continued (transcript, 29 May 2009, p.168):- " Now if this was really happening, a lot of people get very angry with that. Would feel very angry with that. If this was really happening to somebody and people could become so enraged that they could act aggressively against the persecutor, if it was real. … And he acts in that way because in a moral sense, even though he might be aware that it's legally not right to do that, he gets indignant and he feels morally justified, because he's been persecuted so long and in that sense, because the delusion provides him with moral justification, he would have difficulty in judging whether what he's doing is right or wrong, because it affects his moral reasoning of what is right and wrong.. ." 150 Putting aside the intoxicating effects of alcohol and drugs, Dr Allnutt was asked whether the accused's ability to judge right from wrong was substantially impaired. He stated (transcript, 29 May 2009, p.168):- " I think that the delusion still exists so the indignation still exists. The sense of moral, the difficulty in the moral reasoning of the wrongfulness still exists. So judging right from wrong would still be impaired. Judging right from wrong would still be impaired ." (emphasis added) 151 In relation to the defence of mental illness, Dr Allnutt's opinion was that the accused's delusion that he was being sexually assaulted by a gang, which included his mother, was a defect of reason. He said (transcript, 29 May 2009, p.168):- " Psychosis is a condition that, by definition, causes a defect of reason. It is a - by definition, causes a defect of reason. People with psychosis cannot reason like … normal people about the external reality. They believe things to be untrue and they can't reason their way out of that, so it's by definition it causes a defect of reason ." (emphasis added)

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