Director of Public Prosecutions v Bailey
[2017] VSC 195
•13 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0128
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN PATRICK BAILEY |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2017 |
DATE OF JUDGMENT: | 13 April 2017 |
CASE MAY BE CITED AS: | DPP v Bailey |
MEDIUM NEUTRAL CITATION: | [2017] VSC 195 |
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CRIMINAL LAW – Murder – Plea of not guilty by reason of mental impairment – Consent hearing – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Defence established – Verdict recorded of not guilty because of mental impairment – Accused declared liable to supervision.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Mr P Bourke | Solicitor for Public Prosecutions |
| For the Accused | Ms F Todd with Ms A Beech | McNamaras’ Barristers & Solicitors |
HIS HONOUR:
The accused man, Stephen Patrick Bailey, has been charged with the murder of his mother, Penelope Bailey, at Mont Albert North on 5 October 2015. He has pleaded not guilty to the charge on the ground that at the time of the offence, he was mentally impaired pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). Before a jury was empanelled in the matter, the prosecution and the defence both agreed that the proposed evidence established the defence of mental impairment. Accordingly, it was common ground between the prosecution and the defence that, pursuant to s 21(4)(a) of the Act, I should hear the evidence, and, if I am so satisfied, direct that a verdict be recorded of not guilty because of mental impairment.
Before the commencement of the hearing, Mr Peter Kerr, the eldest brother of Penelope Bailey, sent an email to my Associate, and which my Associate forwarded to the prosecution and to the defence. In that email, Mr Kerr raised some concerns about the case proceeding by consent. Mr Kerr had previously had contact with the prosecution concerning those concerns. At the commencement of the hearing before me, and before the accused was arraigned, I permitted Mr Kerr to outline to me the issues which he considered ought to be taken into account in the hearing. Mr Kerr did not, of course, have standing to appear in the proceeding. However, he was permitted to provide to the prosecution a list of questions that he wished to be put to each of the two witnesses who were called in the proceeding. Mr Rochford SC, who appeared with Mr P Bourke for the prosecution, assisted the court by putting those questions to each of those witnesses. While the process adopted was unusual, it was, I consider, justified in the case, particularly as the matters raised by Mr Kerr were relatively confined, considered, and relevant.
It is necessary, first, to set out the circumstances of the offence, before considering the question whether at the time of the offence, the accused was mentally impaired pursuant to s 20 of the Act. There was no issue as to the circumstances in which Mrs Bailey was killed, and accordingly I can outline them in fairly short compass.
The accused was born on 5 April 1981. He has two younger sisters. At the time of the offence he had been living with his mother in her unit in Mont Albert North since early 2014. His parents had separated some time previously. The accused was employed as a part time football coach. He has a history of mental ill health which, in the period leading to the offence, had been deteriorating. I shall later outline those matters in more detail.
The deceased, Penelope Bailey, was last seen on the evening of 4 October 2015 by her daughter Shannon Bailey, who visited her mother that evening for dinner. The accused was not home at that time. It is understood that he returned home after his sister had departed.
On Tuesday 6 October 2015, at about 10.30 am, the accused telephoned Greg Kerr, the brother of the deceased, expressing concern about the whereabouts of his mother. At the time, Mr Kerr was working in the country, and he contacted Shannon Bailey and asked her to attend at the unit. Ms Bailey attended at her mother’s unit at 11.40 am, which she found to be locked. When she knocked on the front door, it was answered by the accused, who she described as looking like a ‘wreck’. In her statement, Ms Bailey said that she had not seen the accused in such a state since he had experienced a psychotic episode which required treatment by the Crisis Assessment Treatment Team (CATT) in 2013.
Ms Bailey spoke to the accused about their mother and her whereabouts. He denied knowing where she was. Ms Bailey went back to her vehicle, and sat in it for about half an hour, during which she saw the accused departing the unit on a bicycle.
Later on the same day, at about 8.00 pm, Ms Bailey, her sister Belinda, her partner Edward Bryant, Mr Kerr, and Mr Kerr’s sister, returned to the unit after attempts had been made by Mr Kerr to report to the Police that his sister was missing. He had been told at that time that it was too early for such a report to be taken. Mr Kerr and Mr Bryant entered the premises by forcing a window. They found blood inside the unit. The electricity had been turned off. Accordingly, the police were called.
On arrival, the Major Crime Scene Unit examined the premises, and found an extensive amount of visible blood staining in the living room on the furniture, and blood spatter on the walls, the kitchen sink, the shower base and the steps leading to the garage. Luminol tests conducted indicated the presence of an extensive quantity of blood, and that attempts had been made to clean it up. Blood was also detected on the rear bumper bar of the accused’s vehicle that was parked in the garage. The police also located a knife handle inside a plastic bag and a blood stained cloth in the clothes dryer at the premises.
A search was then commenced to locate the accused. At 9.30 pm, he was found by police wearing only underpants at the intersection of Gatehouse Drive and Smithfield Road, Kensington. When spoken to by Sergeant Tink, of Melbourne West Police Station, and asked his name, he replied ‘Aristotle’. He then told Sergeant Tink ‘I killed my mum’. He continued to talk to Sergeant Tink, but what he was saying was incoherent and made no sense. He continued to say that his name was Aristotle.
The accused was then arrested and taken to Royal Melbourne Hospital, where he was attended by a hospital psychiatrist. In the course of treatment at that hospital, he told the attending psychiatrist, Dr Jenepher Dakis, and the occupational therapist, Ms Erin Rees, that he had killed his mother.
On the following day, 8 October 2015, the accused was transferred by ambulance from the Royal Melbourne Hospital to Thomas Embling Hospital. On arrival at Thomas Embling, he told the paramedic who accompanied him, Michelle Brown, that he had buried his mother near Warrandyte, and he described the location to her. He said that he had buried her in a creek bed, wrapped her in a blanket from his bedroom and covered her with sticks.
A search was conducted of the Warrandyte area on the same day, in the course of which the deceased’s body was found under a black blanket that was concealed by grass and branches. A stainless steel knife, and a knife blade with part of the tip missing, was found at the same location. Police also found at that location a cloth and blue flannelette shirt which was of the same description as one that was depicted by CCTV footage as being worn by the accused on 5 October.
On 9 October, a post-mortem was conducted on the body of Penelope Bailey. She was found to have sustained multiple stab wounds to a number of parts of her body, and to have suffered blunt force trauma that had resulted in broken ribs, a broken nose and severe bruising. The tip of a knife blade was found embedded in her skull. The cause of death was found to be multiple stab wounds.
Ten months later, the accused was assessed by Dr Adam Deacon, a consultant psychiatrist, at Port Philip Prison on 26 August 2016. At that interview, he engaged openly, and his thoughts were communicated in a normal form. Dr Deacon considered that his mental health had substantially improved. In the interview, the accused told Dr Deacon that he had had thought directives to kill his mother, and in response to them, he had obtained a kitchen knife, and stabbed his mother in the forehead. When the knife broke, he punched her repeatedly in the head. Later, in response to further ‘directive thoughts’, he had placed his mother in the boot of his vehicle, and, following internal directions, drove her to the site at which he left her body.
On 21 October and 11 November 2016, the accused was also assessed by Dr Mark Ryan, a consultant forensic psychiatrist, of Forensicare. At the time of that interview, the accused was compliant with medication, his speech was normal, and for the most part his active psychotic symptoms were reported to have been in remission. In the course of the interview, he gave a similar description to Dr Ryan, of the offence, to that which he had provided to Dr Deacon.
Based on the matters which I have set out above, I am satisfied that the accused man caused the death of his mother, Penelope Bailey, by stabbing her with the intention of killing her or causing her really serious injury, and that the accused had no lawful excuse for doing so. Having made that finding, I turn to the question whether evidence that has been put before me has established, the defence of mental impairment.
In order to establish that defence, the accused must prove, on the balance of probabilities, that at the time that he killed Penelope Bailey:
(a)he did not know the nature and quality of his conduct; or
(b)he did not know that the conduct was wrong, that is, he could not reason with a moderate degree of sense and composure about whether his conduct, which caused the death of his mother, as perceived by reasonable people, was wrong.
The evidence, as to that issue, consists of, first, evidence as to the decline in the accused’s mental condition in the period of four years preceding the offence, second, evidence as to his mental state shortly before and shortly after the offence, and, thirdly, expert psychiatric opinion evidence.
The accused first began to experience mental health difficulties in about 2011. Before then he had been an active sportsman. He had played Australian rules football for Box Hill Hawks in the Victorian Football League, and subsequently for Norwood Football Club and West Adelaide Football Club in the South Australian National Football League. In the meantime, the accused completed an Honours Thesis in Health Science, and gained a Master’s degree in it. He then commenced to study law full time in 2010. At the same time, he conducted a fitness training business. He maintained a high level of physical fitness, and his football coach, in South Australia, described him as a ‘fitness freak’. The evidence indicates that before the onset of his illness, the accused was a high achieving and quite driven individual.
In 2011, the accused first commenced to experience feelings of paranoia, thinking that his house mates were talking about him and that a girlfriend in Adelaide was connected with the mafia. In the following years, those feelings became more florid.
In 2013, he had more persistent unusual experiences. Initially, they involved misinterpreting the actions of others as having personal significance for himself. Over the ensuing months, he developed ideas which had an increasingly grandiose aspect to them. He experienced a feeling of receiving 'intuitive' ideas which he considered to be of external origin, in that he believed that the thoughts were not his own, but rather were information being communicated to him from higher beings or 'Gods'. He began to consider that he might have been chosen for some special purpose, which he linked to an enhanced understanding of moral matters and societal problems. When he returned to Victoria in later 2013, he made enquiries at hospitals, trying to find his father by responding to communications from his inner world and waiting for thought directives.
At about the time of the AFL Grand Final that year, his mental health condition became acute. A friend contacted the Crisis Assessment and Treatment Team (CATT) in response to the accused believing that helicopters were overhead and that video cameras were in his room. The CATT team attended, and the accused was under the care of that team for two weeks. He commenced on the anti-psychotic medication Olanzapine. The notes of the Alfred Mental Health Service recorded that on 1 October 2013 the accused presented with symptoms of elevation, paranoid ideations and obsessive components to his sporting and physical abilities. The diagnosis, that was documented, was that he was manic, with psychotic features, paranoid psychosis, and drug induced metabolic psychosis.
It appears that the accused did not fulfil the Mental Health Act 2014 criteria at that time, and he was discharged after two weeks. On discharge, he was referred to Dr Johnston, at the Albert Road Clinic. He only attended a few sessions with Dr Johnston until December 2013, and he ceased taking his medication. Thereafter, he did not receive any further treatment before the index offence.
At that time of the accused’s psychotic event in 2013, his sister, Shannon Bailey, who has a degree in psychology, took time off her work to look after him. In her evidence at the committal proceeding, Ms Bailey stated that the accused was very unwell at the time, he was highly anxious, and he did not want to leave his home as a result of the severity of his anxiety.
The accused continued to suffer from symptoms of psychosis. He thought house mates exploited him, and that friends and family were conspiring against him, and were part of a wealthy establishment that controlled him. He labelled that establishment as the ‘Mime Order’, which he had read about in a book authored by Samantha Shannon. He heard voices in his head saying 'do it' and also heard people laughing at him.
In early 2014, the accused moved in to live with his mother in her unit in Mont Albert North. During 2014 and into 2015, his mental state continued to be disturbed. He went on a number of road trips, without any forward planning. He considered he was being guided by 'directive thoughts' or messages sent to him through the radio.
In the committal proceeding, Shannon Bailey gave evidence that, in about 2014, she was with the accused on an occasion when he appeared to be hallucinating. He thought that his real sister Shannon had been killed, and that the person he was talking to was from the terrorist organisation ISIS. On the same occasion, he told Ms Bailey that he thought he was Jesus.
During that period, the accused continued to study for his law degree. In early 2014 he transferred to Deakin University after moving to Melbourne. He continued with his studies for the next two years on a part time basis. Apparently, initially he had done well in his law course, with good academic results, but his performance deteriorated during the period in question, and he failed a number of subjects.
During 2014, Mr Andrew Collins, who had coached the accused when he played football in South Australia, learnt that the accused was suffering from mental issues. Mr Collins, who was then the coach of Williamstown Football Club in the Victorian Football League, made contact with the accused, and assisted him to obtain a part time voluntary position assisting with the training of footballers at the club, in order to provide some support to the accused and to help him with his psychological problems.
Mr Greg Kerr, in his statement, stated that in early 2014 the accused’s two sisters raised concerns about a mental health problem that the accused had experienced in Adelaide. As a consequence, Mr Kerr decided to get the accused to do some part time work on his vineyard in the Yarra Valley. Mr Kerr noted that the accused, when he was young, had been quite brash and confident, but at this stage he had become reticent and withdrawn. He began to articulate a particular brand of philosophy and moral beliefs. At times he would seem to be on a ‘stream of consciousness type rant’, canvassing issues involving society and ethics, the need for a new world order where pure thought and action governed all decision making, and the capacity of the ‘ego’ to lead to evil, religion and philosophy. Mr Kerr stated that when the accused embarked on that type of conversation, he ‘had a way of hijacking the agenda’. At the committal proceeding, Mr Kerr said that the accused would pontificate in that way for long periods, in which he (Mr Kerr) could not get a word in.
On 2 October 2015, the accused's sister Belinda, and her partner Edward Bryant, visited the deceased at her unit. The accused acted in a manner that Belinda Bailey described as ‘feral’. Mr Bryant in his statement said that he had never seen the accused acting in such a manner during the five years in which he had known him. He said that the accused ‘seemed out of it’. Mr Bryant stated that the accused did not seem himself, even taking into account the fact that he had exhibited strange behaviour in the past.
As I mentioned, when Shannon Bailey attended at her mother's unit at about 11.40 am on 6 October 2015, she observed that the accused looked like a 'wreck'. She said that the last time that he had looked that bad was two years previously when he had the psychotic episode that required the intervention of the CATT team. She described the accused as ‘dazed and confused’.
At about midday on the same day, after the accused left his mother’s unit, he went to a café in Belmore Road, Balwyn, which he frequently attended. An employee of that café, Ms Lisa Himburg, said that he was behaving in a manner which was quite unusual, and very different to the manner in which he ordinarily behaved at the café. She said that he appeared to be ‘very vacant’, and ‘not “with us” mentally’. After he left the café, he stood by his bicycle, with a ‘vacant look’. At the committal proceeding, she said it looked as if he was staring into space.
As I have mentioned, the accused was located by police at 9.30 pm on 7 October in Kensington. He spoke in an incoherent manner which made no sense, continuously muttering random comments. At one stage he was praying to Athena and stating that his mother was Athena. Ms Brown, the paramedic, who attended him shortly before 10.00 pm, stated that the accused was rambling in his thoughts and words. In her evidence at the committal proceeding, she said that he was responding to things that were not happening in reality, and that he insisted that his name was Aristotle. Ms Brown noted, in her mental state assessment, that the accused was scattered in thought, lacked insight, and that he was not oriented in time and place.
I have listened to recordings of the accused’s interactions with the police, with the paramedic, and with medical personal, which were tendered in evidence. They confirm the descriptions given by the witnesses of the accused’s conduct and mental state at that time.
The accused was conveyed to the Royal Melbourne Hospital. Dr Jenepher Dakis, the consultant psychiatrist who assessed him, noted that he was agitated and in a state of heightened tension, that he was responding to internal stimuli, and that he was floridly thought disordered. In reviews by Dr Dakis, it was noted that he was presenting as floridly psychotic, tangential, thought disordered, and with grandiose delusions, and he was observed to be responding to internal stimuli. He appeared to have thoughts of harming himself and he also made threats against the occupational therapist.
The accused was placed on an inpatient assessment order under the Mental Health Act 2014 and on a temporary treatment order. On the following day, 8 October 2015, he was transferred to Thomas Embling Hospital. He was reviewed by a senior psychiatrist, Dr Caroline Simms, and was assessed as being ‘extremely guarded and suspicious’. He was charged with the murder of his mother on 9 October 2015 and transferred to the Melbourne Assessment Prison (‘MAP’), Unit 13 Management Facility, and subsequently to the Acute Assessment Unit on 12 October. The discharge summary from Thomas Embling Hospital described him as having grandiose and bizarre thoughts.
On arrival at the MAP, and at the Acute Assessment Unit, the accused persisted with claims that he was Aristotle or Jesus, and he was described as being grossly thought disordered with grandiose beliefs of a mythological nature. The accused was subsequently transferred to the Metropolitan Remand Centre, where he was assessed as suffering from schizophrenia at the time. In May 2016, he was moved to the St Paul’s unit, which is the mental health unit at Port Philip Prison. He has remained on the anti-psychotic medication Olanzapine as well as the anti-depressant medication Escitalopram.
In his interviews with Dr Ryan and Dr Deacon, the accused stated that he had formed the view that he had been abducted from birth from his true parents, the Greek Gods Athena and Zeus, and he thought that those parents had been killed by his earthly parents. He was convinced that his mother was intimately involved with the Mime Order, who engaged in immoral conduct, and he thought that the Mime Order was watching him and wanted to kill him. He told Dr Ryan that, on the day of the offence, he had received a communication from the Gods that 'we need you to do it so you know you’re on our side' and to avenge Athena's death. He told Dr Deacon that he had received 'thought directives' to kill his mother, and he had thought that he just had to do it to avenge Athena and Zeus.
The expert psychiatric evidence, as to the defence of mental impairment, is contained in two reports of Dr Deacon dated 4 September 2016 and 2 April 2017 respectively, and a report of Dr Ryan dated 12 December 2016, which were tendered in evidence. Each psychiatrist gave evidence as to the matters contained in his reports.
Dr Deacon assessed the accused at Port Philip Prison on 26 August 2016. In his examination, Dr Deacon noted the accused's previous psychiatric history, and the account which he gave of the index offence. On examination (at that time) the accused did not present with current psychotic symptoms. He had developed insight into his mental illness, schizophrenia, when assessed, but it was clear that he had lacked insight when he was unwell and at the time of the offence.
Dr Deacon considered that the accused's history and presentation was consistent with a diagnosis of schizophrenia. He considered that the accused had been afflicted with chronic psychotic symptoms since 2013 until the index offence, and that it had continued for an extended period while he was in custody. The illness was characterised by a very complex delusional belief system, with bizarre and grandiose elements centred on Greek mythology and the presence of a secret society, which he named the Mime Order. He had been persistently troubled by delusional ideation and additional psychotic symptoms, including thought insertion, delusions of reference, delusions of misidentification and auditory hallucinations.
In his report, Dr Deacon concluded as follows:
Mr Bailey was severely psychotic at the time of the offence. He didn't have any insight into his mental state. His psychotic illness, now confirmed as schizophrenia, was active at the time of the offence. I opine that he would not have been able to reason with a moderate degree of sense and composure that what he was doing was wrong. It is on these grounds that I consider Mr Bailey has a Mental Impairment Defence available.
Dr Deacon gave evidence before me, in which he confirmed the contents of his two reports. He described how, before 2013, the accused had had some transient psychotic symptoms which took various forms. However, in 2013 he developed a psychotic illness, which required him to be treated by the CATT team as an outpatient for two weeks, before he was referred to the care of Dr Johnston. Dr Deacon considered that in the following two years before the index offence, the accused continued to be chronically afflicted with symptoms of his psychotic illness, albeit that they varied in intensity, and there may have been times when they were not as prominent. Notwithstanding that he was chronically afflicted with those symptoms, the accused was nevertheless able to preserve a level of functioning, albeit, that there was an overall decline in his capacity to function at his premorbid level. Dr Deacon noted that in the case of the accused it appeared that there had been a level of guardedness, which is quite commonly a part of the presentation of persons suffering from psychosis. In those cases, the person suffering the psychosis has some awareness that there is something unusual going on, without understanding it to be a mental illness. Dr Deacon considered that the accused had some inkling that something was going on, but he did not ascribe it to mental illness.
Dr Deacon described how in the period leading to the offence, the accused had developed a particularly complex delusional system, involving bizarre and grandiose delusions. In the interview, the accused reported to Dr Deacon having experiences that correlated with thought passivity, including thought insertion that the accused described as thought directives. Dr Deacon explained that thought passivity is a psychotic phenomenon whereby a person can feel and experience that their thoughts are not their own. There are a range of subtypes of thought passivity, and in the case of the accused, he experienced thought insertion, whereby he felt that his thoughts were not his own, but that he was being directed by an external presence. Dr Deacon also noted that the accused suffered delusions of reference, which are experiences in which people can misinterpret external stimuli. In the case of the accused, he would observe people and misinterpret what he perceived as body language and other signals as being directed to him. Dr Deacon stated that the thought directives, which the accused told him he received at the time he killed his mother, were part of the accused’s psychotic experience, in that he felt that his thoughts were not his own, but they were being inserted into his mind, and he felt an absolute obligation to respond to those thoughts.
Dr Deacon stated that he did not have any concerns about the validity of the account given by the accused as to his mental experiences at the time at which he killed his mother. In particular, the accused had described to Dr Deacon a detailed history preceding the offence. It was significant that the offence was not a single momentary episode of psychosis, but that rather the description of the accused’s mental state at the time of the offence was consistent with the broader context to which he had experienced over the period of time leading to it.
Dr Deacon did not consider that the conduct of the accused, in endeavouring to clean up the blood stains in the house, and conceal Mrs Bailey’s body, was inconsistent with the diagnosis of psychosis at the time. The accused reported to Dr Deacon that his behaviour after the offence was driven by thought directives, which guided his movements and decisions. Dr Deacon was of the view that the accused was in the grips of psychosis throughout the entire period, and that he was under the direction of thought directives that guided him. He considered that the accused seemed to have some awareness that he had committed a murder, but he was not even certain that he had killed his own mother because of his confusion regarding the identity of his mother.
Dr Deacon had been provided with copies of the North West Mental Health Assessment of the Royal Melbourne Hospital, of the Thomas Embling Hospital clinical file, and of the Justice Health file. That material enabled Dr Deacon to express some views as to the assessments made of the accused’s mental health after his arrest.
Dr Deacon noted that Dr Dakis, who had assessed the accused at the Royal Melbourne Hospital, is a very experienced consultant psychiatrist, who works predominantly in the acute psychiatric unit of the Royal Melbourne Hospital. She assessed the accused as being actively psychotic with a range of symptomatology which was consistent with that described to Dr Deacon by the accused. After the accused was moved to Thomas Embling Hospital, he was assessed by a consultant psychiatrist, Dr Caroline Simms, who at that time worked in one of the acute units at Thomas Embling Hospital. Dr Simms’ description of the accused as being guarded and suspicious was consistent with a psychotic presentation. After the accused was transferred to the Melbourne Assessment Prison, he was assessed by Dr Douglas Bell, who Dr Deacon described as the most experienced psychiatrist in prisons in Victoria. Dr Bell noted an array of psychotic symptoms that were consistent with a psychotic presentation.
The accused was then transferred to the Metropolitan Remand Centre, where he remained under the care of Dr Claire McInerney, a consultant psychiatrist with Forensicare, for three or four months. Dr McInerney was involved in the management of the accused’s state at that time. The Justice Health documents demonstrate that Dr McInerney concurred with Dr Deacon’s view, and with other doctors’ views, that he was suffering from schizophrenia at the time.
For the last eleven months, the accused has been in the St Paul’s unit of Port Philip Prison. Dr Deacon was of the view that his mental state had commenced to improve in early 2016 and that he has gained some insight, which was not evident while he was unwell. When Dr Deacon examined the accused in August 2016, he did not detect any positive symptoms of schizophrenia (such as delusions, hallucinations and the like). However, there were some negative symptoms, most notably the accused’s blunted affect; that is, he had a very reduced and blunted mood state at that time.
In cross-examination, Mr Rochford asked Dr Deacon a number of questions that had been prepared by Mr Kerr, in accordance with the procedure that I have outlined earlier. Dr Deacon stated that he understood from documents he had read that the accused was under some financial stress at the time of the offence. However, he considered that the accused’s motivation for killing his mother was not driven by financial issues, but by psychotic symptoms that related to his belief that his mother, and other family members, were part of the Mime Order. Dr Deacon repeated his view that the driving force for the accused to commit the offence was the thought directives, that he felt he had no choice but to act on.
Dr Deacon was also asked why he did not interview other family members. He said that the statements and transcript of the evidence in the committal, contained in the depositions, demonstrated that various people had observed changes in the accused that were inconsistent with his normal presentation. Those observations were consistent with a person who was either developing an emerging psychosis, or who might well have been in the grips of one. Dr Deacon considered that collectively the evidence, that he read, consisted of the accounts given by people who knew the accused well, and to whom he was demonstrating ‘significant changes compared to his normal functioning’. In answer to a further question, Dr Deacon stated that he did not consider that there was an alternative diagnosis of rage, anger or depression, rather than psychosis. He repeated that there was clear evidence that the accused had been afflicted with psychotic symptoms which are distinctly different to those of a depressive disorder.
As I stated, the second psychiatrist, who has examined the accused, is Dr Mark Ryan. Dr Ryan is an experienced consultant forensic psychiatrist, and is the Assistant Clinical Director-Inpatient Operations of Thomas Embling Hospital. He was requested by the Office of Public Prosecutions to examine the accused and to provide a report in relation to him.
For that purpose, Dr Ryan interviewed the accused on 21 October and 11 November 2016, and again on 7 April 2017. He had available to him the relevant documentation, including the depositions and transcripts of the committal proceedings, the clinical documents from the Alfred Hospital, the Royal Melbourne Hospital, Thomas Embling and Justice Health, and a letter from Dr Mark Johnston who attended the accused in 2013. He was also provided with the letters prepared by Mr Peter Kerr, in which Mr Kerr expressed the concerns to which I have earlier referred.
In his report dated 12 December 2016, Dr Ryan came to the same conclusion. In that report, Dr Ryan set out the detailed and extensive account that he took of the accused's personal history and psychiatric history, and of the accused's mental state up to and including the time of the index offence. In the conclusion to his report, Dr Ryan noted as his 'firm opinion' that the accused was floridly psychotic at the time of killing his mother. Dr Ryan considered that the accused has a diagnosis of schizophrenia with onset in early 2013, culminating in an initial but brief period of psychiatric care in late 2013. Unfortunately, due to poor insight, partial treatment and suspiciousness, the accused had disengaged from that psychiatric management. Dr Ryan considered that the accused had been actively psychotic since then. The account and description given by the accused, as to the development of his symptoms, was not consistent with any malingered mental illness, and, in the opinion of Dr Ryan, was particularly authentic.
Dr Ryan concluded as follows:
As indicated, in relation to the index offence, it is my opinion that Mr Bailey was in a state of severe psychosis at the time of the homicide. He had incorporated his mother and many others close to him into an elaborate, often bizarre, grandiose and persecutory delusional system. As described above, it essentially revolved around his delusionally held belief that he was 'special', had been chosen to lead the new world order, was in league with the Gods who communicated to him by means of thought directives and that he was actively persecuted by a powerful and depraved group called the Mime Order who regularly raped and assaulted him and intended to torture and kill him. He believed his actual parents had been killed and that he was doing the bidding of the Gods when he killed his mother.
With respect to the criteria outlined in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, it is my opinion that Mr Bailey did know the nature and quality of his conduct but was, at the time of the offence, so overwhelmed by active psychosis that he was not able to reason with sense and composure as to the wrongfulness of his actions.
In evidence before me, Dr Ryan confirmed the contents of his report. Dr Ryan stated that, before he first interviewed the accused, he was aware that some members of the accused’s family considered that the accused might have been feigning his mental illness and malingering. Dr Ryan stated that, in all cases, it is necessary to weigh both the subjective account given by the person, and the objective evidence, and to look for consistency over time. In a case such as this, where there are doubts expressed by the family, Dr Ryan wanted to be particularly comfortable in his own mind that he could exclude fabrication by the accused of his symptoms. He said that feigning of psychosis is very uncommon and very difficult. Dr Ryan had three meetings with the accused over an extended period of time in order to ensure that his presentation was consistent.
Dr Ryan stated that what was reported to him was a very elaborate delusional system, almost in the absence of auditory hallucinations, and, in particular, there were psychotic phenomena, such as formal thought disorder, and negative symptoms, which are uncommon, rarely feigned, and difficult to sustain over a period of time if they are not genuine. He noted that during the last year the accused has been placed in St Paul’s unit at Port Philip Prison, which is staffed 24 hours per day by psychiatric nurses. Thus, the accused has been essentially under constant mental health scrutiny. Dr Ryan stated that the difficulty in feigning a psychosis is in sustaining it, and not letting one’s guard down. Dr Ryan considered that the accused’s account of the development of symptoms and mental health difficulties, in terms of consistency, time frame and detail, was not consistent with a malingered mental disease, but was particularly authentic. In his evidence Dr Ryan stated:
Elaborate delusional systems, formal thought disorder, negative symptoms and affective blunting are rarely seen in attempts to feign as they are so difficult to manufacture or convey and in my mind it is especially unimaginable in this case when features of serious mental illness are sustained for this length of time and while under the observation of multiple mental health clinicians, including a number of very experienced consultant psychiatrists.
Dr Ryan considered that the accused’s experiences in 2011 and 2012 were very typical of the early signs of the onset of psychosis. In his evidence, he described the development of those symptoms, which set the scene for the ongoing development of his psychosis that revolved around the accused considering he was different and special. He noted that the accused’s delusional system had evolved over time, and that later on he developed the sense that he was being guided in his actions by the Gods and by higher figures, and he developed the belief that his parents were not his parents. He noted the development in the accused of the belief that his persecutors involved a group of powerful individuals called the Mime Order.
Dr Ryan also noted the diagnosis of the Alfred CATT team, that attended the accused in October 2013, and which indicated that the accused was diagnosed with a psychotic illness, and that he was displaying erratic and elevated behaviours, and reporting untrue beliefs and voices. Dr Johnston, at that time, considered that he had suffered first episode psychosis.
Dr Ryan referred to the observations made by persons both before, and immediately after, the accused had killed his mother. He considered that the accused’s account, that he had been subjected to thought directives that directed his actions, was entirely consistent with what had gone before. He further considered that the accused’s conduct after he had killed his mother, in attempting to clean up the unit, and in concealing his mother’s body, was not inconsistent with a mental impairment at the time of the offence, but, rather, was consistent with the accused’s illness over a lengthy period of time. Dr Ryan repeated his view that, at the time of the offence, the accused was so overwhelmed by active psychosis that he was not able to reason with sense and composure as to the wrongfulness of his actions.
In answer to questions put by Mr Rochford, on behalf of Mr Peter Kerr, Dr Ryan stated that the fact, that the accused had not had any psychiatric treatment in the twelve months before the offence, was not inconsistent with the existence of a psychotic illness during that period. Dr Ryan’s firm belief was that during that period the accused had been actively unwell. It is not uncommon that people can hide their symptoms. The accused was not suffering auditory hallucinations, but rather his psychosis revolved around a delusional system, which may not have been so readily apparent to others. When a person is actively floridly psychotic, that person does not have insight sufficient to lead that person to seek and obtain appropriate treatment. While the accused continued to undertake a university course and to act as a runner for a football club, he was performing well below the level at which he had lived before the onset of his illness. The accused had previously been very high functioning, he was an intelligent driven obsessional man. As a result, he was able to remain functioning to some degree, and thus to ‘stay under the radar’. Dr Ryan stated that it is not uncommon for people with psychotic illnesses, who are very unwell, to be able to conceal their condition from people around them, particularly if the person is quite isolated, as the accused had been in the preceding 18 months or so. Dr Ryan further stated that while he knew that the accused had been in significant debt at the time, that circumstance did not appear to be a particular preoccupation for the accused, but, rather, he had been overwhelmed by the psychotic delusional system to which he was subject.
In cross-examination by Ms Todd, who appeared with Ms Beech, on behalf of the accused, Dr Ryan stated that he had had access to the clinical notes of psychiatrists, who had assessed the accused since the date of his arrest, including the notes of Dr Dakis, Dr Simms, Dr Bell, and Dr McInerney. He had also had conversations with the Registrar and social worker of the St Paul’s unit. In all that material, there was no indication that the accused had been malingering. In particular, he said:
There was never any indication of malingering. As I said, we do have a radar for those things, particularly in the prison system. They occur very uncommonly but I don’t know of anyone who’s successfully malingered a psychosis like that in my memory.
Dr Ryan said that in his interviews with the accused, the latter was not seeking to be excused, but that he was genuinely perplexed as to what had happened.
In summary, the evidence, to which I have referred, establishes that in the years preceding the offence, the accused’s mental state had been deteriorating, to the extent that, two years earlier, he had suffered a psychotic event requiring emergency treatment. Further, after that event, the accused’s condition continued to decline, in circumstances in which he did not seek or obtain any expert psychiatric assistance or treatment. In the period shortly before, and immediately after, the commission of the offence, the accused was observed to be in a most disturbed state. The expert psychiatric evidence, of Dr Deacon and Dr Ryan, is unanimous that at the time of the offence, the accused’s mental state was such that he would not have been capable of reasoning, with a moderate degree of sense and composure, that what he was doing was wrong.
There is no reason for me not to accept the evidence of Dr Deacon and Dr Ryan. Both practitioners are experienced psychiatrists, with a clear understanding of the issues involved in a case such as this. Their views were not dependent solely on the account given to them by the accused. Rather, each practitioner made an assessment of the consistency of that account, both internally, and also with objective considerations, including the nature and symptomatology of psychotic disorders of the type that the accused has been diagnosed to suffer from. The psychiatrists were able to explain why, to the perception of some of his family, the accused might have been able to function reasonably in society before the date on which he murdered his mother.
The evidence of the psychiatrists is supported by evidence of other witnesses as to the deterioration in the accused’s mental state in the period leading to the offence. Further, I am satisfied that the accused’s conduct immediately after the offence is not inconsistent with the diagnosis of the psychiatrists that he was in a psychotic state at the time that he murdered his mother. As explained by each psychiatrist, that conduct was consistent with the accused being subject to the thought directives (or, as Dr Deacon described them, thought insertions) which had mandated his conduct at the time of the offence.
It is, I consider, particularly relevant that the accused has been observed and assessed by a number of experienced psychiatric practitioners in the period immediately after the offence, and during the period between the date of the offence and the present time. As both Dr Deacon and Dr Ryan made plain, it would be extremely difficult, if not impossible, for a person to have maintained a feigned psychiatric illness, of the kind diagnosed in the accused, for such a period of time, without being detected.
I note the concerns expressed by Mr Peter Kerr, that other members of the family were not interviewed in relation to the behaviour and functioning of the accused before the offending. However, Dr Deacon and Dr Ryan were each provided with the depositions, which included statements by Gregory Kerr, Belinda Bailey and Shannon Bailey. They were also provided with a transcript of the committal proceedings, in which each of those three witnesses gave evidence. Dr Deacon and Dr Ryan are experienced practitioners. Each of them gave clear and coherent reasons for the diagnosis that they each made relating to the accused’s mental state at the time of the offending. Each of them considered that he had sufficient material available to him to make that diagnosis. It is significant that Mr Kerr did not put forward any question, to be asked of those practitioners by Mr Rochford, that indicated any behaviour or activity by the accused leading to, or approximate to, the time of the offending, that would be inconsistent with, or contradict, the diagnoses made by each of those two psychiatrists.
For those reasons, based on the evidence, I am satisfied, on the balance of probabilities, that the defence of mental impairment has been made out in this case. The evidence does not establish that the accused, at the time of the offence, did not know the nature and quality of his conduct. However, the evidence does establish, on the balance of probabilities, that he did not know that his conduct was wrong, that is, that he was incapable of reasoning, with a moderate degree of sense and composure, as to whether his conduct, as perceived by reasonable people, was wrong.
It follows that I am satisfied that the defence under s 20(1) of the Act is made out. Accordingly, pursuant to s 21(4)(a), I shall direct that a verdict of not guilty because of mental impairment be recorded in the records of the Court. Pursuant to s 23(a) of the Act, I shall also declare that the accused is liable to supervision under Part 5 of the Act.
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