DPP v Whelan
[2006] VSC 319
•27 April 2006
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1455 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENDAN JOHN WHELAN |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2006 | |
DATE OF JUDGMENT: | 27 April 2006 | |
CASE MAY BE CITED AS: | DPP v Whelan | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 319 | |
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Criminal law and procedure – murder – mental impairment – s.21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – trial by judge –verdict directed of not guilty because of mental impairment – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | B. Kayser | Office of Public Prosecutions |
| For the Accused | S. Cash | Victoria Legal Aid |
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HIS HONOUR:
In this matter I find the accused, Mr Whelan, not guilty of the murder of Marianne Rita Whelan because of metal impairment. At the conclusion of these reasons I shall make the relevant orders pursuant to ss.23, 24, 28 and Part 5 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
The accused, Mr Brendan John Whelan, has pleaded not guilty because of mental impairment before me on one count that at Meadow Heights on 26 May 2004 he murdered Marianne Rita Whelan.
By the Crimes (Homicide) Act 2005, introduced into operation on 22 November 2005, by s.10(2) is provided that a new sub‑section, namely sub‑s.4, be inserted in s.21 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as follows:
“(4)If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and ‑
(a)if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or
(b)if the trial judge is not so satisfied, must direct that the charge for the offence be tried by a jury.”
Accordingly, I direct that the verdict of not guilty because of mental impairment be recorded, consonant with the provisions of s.21(4)(a) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
The provisions of Part 4 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 headed “Defence of Mental Impairment” are now well known. By s.20(1)(b) it is provided that the defence of mental impairment is established if the accused did not know that the conduct was wrong at the time of the relevant conduct - that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. By ss (2) is provided that if the defence of mental impairment is established the person must be found not guilty because of mental impairment.
Under s.21(2)(b) it is provided ‑
“The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1) ‑
(a)is a question of fact; and
(b)is to be determined by a jury on the balance of probabilities.”
It appears to me that the amending legislation, s.10 Crimes (Homicide) Act 1985 by a slip omitted to insert after the words “a jury” in s.21(2)(b) the words “or a judge”. That plainly was the intent of the amending legislation. I proceed upon the basis that the appropriate standard of proof is the balance of probabilities: first, by reason of long‑standing authority; secondly, by reason of long‑standing principle; and thirdly, by reason of parity with s.21(2)(b) as presently provided in relation to a jury.
Under s.23 is relevantly provided -
“If a defendant is found not guilty because of mental impairment, the court must ‑
(a)declare that the defendant is liable to supervision under Part 5; …”
In the present case the matter came before the Court by way of agreement. Of course, it is it the Court which determines the matter, not the parties, as these are public not private proceedings and I proceed upon that premise.
The relevant facts were helpfully outlined by Mr Kayser, for the prosecution, in opening and are admitted by the accused.
The relevant facts are that Mrs Marianne Rita Whelan was born on 10 January 1960 and was 44 years of age at the time of her death on Wednesday 26 May 2004. She was killed by her husband, the accused, on Wednesday 26 May 2004 in the early hours in the family home. There were two children of the marriage grievously afflicted by the death of their mother: Nathan, who is now 16 and was 14 at the time of the death of his mother; and Erin, who is now 11 and was 9 years at the time of the death of her mother.
The accused was born on 1 June 1960 and was 43 years of age at the time of the fatal events. He is now 45 years of age.
The accused and his wife, the deceased, were married in 1988. At the time of the fatal events he and his wife were living in the domestic home in Meadow Heights but were living in separate bedrooms. The children were residing with them. There had been frequent arguments between the parents during the course of the marriage and the deceased had left the family home some two years before her death and had remained away for some 12 months but then returned. When she returned she occupied the bedroom formerly of their daughter, Erin. The deceased was an assistant manager at the Coolaroo Tavern and the accused was a grave digger at Fawkner Cemetery.
Five days before the fatal events, on Friday 21 May 2004, the accused was informed by a work superior that police were being brought into his work place to investigate thefts of bags. He later told Homicide investigators that he thought he was being “set up” by the police investigation and that it was a fiction that there were bags stolen at the premises. That day the accused commenced behaving irrationally and having persecutory thoughts. He told the police, and he also told his son, that other vehicles were following his own car and that he was in danger of being killed by the occupants of those other vehicles.
These delusions were set forth in detail in the Homicide interview tendered before me which I have examined.
Four days before the fatal events, in the early hours of Saturday 22 May, the accused called his son Nathan to arrange to meet him near their home. Nathan was accompanied by another friend. From that time until the fatal events the accused kept Nathan close by or in his own company, saying to Nathan that “they” could not kill him if Nathan was with him.
There is a significant amount of objective factual material demonstrating statements of the accused throughout the relevant period to like effect. The accused had told other persons, including his mother, neighbours and, indeed, local police, that “they” were following him, that his car was fitted with a tracking device or a listening device, that the calls on his phone were not going through, that there was a red light spot following him which he believed on one occasion to be a gun sight, that there was a person in the vicinity of the house who would shoot him if he presented himself as a target, that there was a camera in the remote control of his television set and that all the food and drink in the house was tainted and tasted strange and could not be consumed by him.
In the early hours of Saturday 22 May 2004 the accused went to the Broadmeadows Police Station where he reported to police that he was being followed. He removed the dimmer switch from the dashboard of his vehicle and claimed it was a listening device. The police did their best to reassure the accused that it was not a listening device but was a dimmer switch. The accused remained in the vicinity of the police station telling the police that he was frightened of people who were following him.
On Tuesday 25 May the accused was assessed by members of a CAT team who considered that the accused had experienced brief psychotic episodes with paranoid ideation with a background of substance abuse.
It is significant that the accused’s account to independent third parties, namely the police, demonstrating paranoid ideation commenced before any ingestion of amphetamines, which was on the Friday night, as is apparent from questions 364‑374 of his interview and is accepted by the prosecution.
The accused spent the nights of 25 and 26 May at his home. The children slept in the loungeroom and the deceased slept in Erin’s bedroom, as she usually did. The accused asserted that he did not sleep but was watchful because he believed that there might be persons outside the house who were seeking to break in and attack him. In the Homicide interview, from answer 77, he gave an account of the time leading up to the death of the deceased.
The accused attacked his wife in the home and caused her death. The autopsy revealed the cause of death to be multiple stab wounds in tandem with blunt force trauma to the head. I shall not rehearse in this oral judgment the details which are set forth of the report of the pathologist, Dr Dodd, and which were opened by Mr Kayser at p.6 of the opening. They may be found in the relevant material on the court file.
The accused was interviewed by the Homicide Squad the same morning of the offence. I have examined the interview. It is apparent from the interview that the accused stated that which I have previously summarised as to his apparent paranoid ideation. He was then assessed psychiatrically and admitted to the Acute Assessment Unit of the Melbourne Assessment Prison where he remained until 30 September 2004 under the care of Dr Debra Wood (to whom I shall shortly refer), psychiatrist. Thereafter he was transferred to St Paul’s Psychiatric Rehabilitation Unit at Port Phillip Prison.
Called before me were two eminent psychiatrists, Dr Debra Wood, a Fellow of the Royal Australian and New Zealand College of Psychiatrists and Dr Lester Walton, likewise, who is a consultant psychiatrist. Also tendered before me, as Exhibit C, was a lengthy report by Dr Wood and, as Exhibit D, a report by Dr Walton.
In relation to the report of Dr Debra Wood, Exhibit C, made 20 July 2005, Dr Wood stated that she is a consultant psychiatrist to the Melbourne Assessment Prison. She sets forth in her report the substantial material she referred to in formulation of her opinion and, in particular, a report of Dr Alan Jager, to which I shall later refer, of 14 July 2004. Dr Wood stated that she interviewed the accused at the Melbourne Assessment Prison on 12 July 2005 for some 80 minutes. She had previously assessed the accused in her role as consultant psychiatrist to the Acute Assessment Unit of the Melbourne Assessment Prison when the accused was an inpatient from 4 June to 30 September 2004. In preparing the report Dr Wood referred to notes made by herself and other Acute Assessment Unit personnel relevant to that period as well as Mr Whelan’s subsequent treatment at the St Paul’s Psychiatric Rehabilitation Unit at Port Phillip Prison. After reviewing in detail the relevant history, Dr Wood concluded, as appears at p.8 of her report, that she considers that the accused, at the time of her assessment, was fit to stand trial. She further concludes as follows:
“All of the evidence points to Mr Whelan having suffered an abrupt onset of psychosis on or before Friday 21 May 2004 ... This was characterized by intense referential ideas and persecutory delusions, and remained evident in the weeks following Mr Whelan’s alleged offence.”
She proceeded that Mr Whelan committed the alleged offence in response to delusional persecutory beliefs; and that Mr Whelan has the defence of mental impairment open to him. She further stated:
“I see no reason to disbelieve Mr Whelan’s account that his ingestion of a relatively large amount of amphetamines (half a gram) occurred late in evening of Friday 21 May 2004, after the onset of symptoms and actually in response to them. He gave the same history to Dr Childs, me and Dr Jager immediately and soon after his arrest, and at a time when he would not have been aware of the relevance of the timing of his amphetamine use in relation to the onset of symptoms.” (emphasis in original).
Dr Wood concluded:
“It is impossible to determine whether Mr Whelan’s ingestion of amphetamines on the Friday night exacerbated his symptoms. It is possible, but not necessarily true, that this was the case; certainly his symptoms were already intense and rapidly escalating prior to his extra amphetamine consumption. … Given the persistence of his symptoms, and the apparent prior brief psychiatric episode in the mid 1990s in the absence of amphetamines, my own view is that it is more likely that Mr Whelan suffers paranoid schizophrenia, and that although this may have been worsened by his amphetamine use, it would have occurred in any case.”
Dr Wood gave clear evidence before me, having been called by the prosecution. She stated that in her opinion the accused was mentally impaired at the time he killed his wife, his suffering psychotic symptoms in the five days prior to his offence being established “overwhelmingly from every source”. She expressed the opinion that “In my view he was unable to reason with a moderate degree of sense and composure that his life was in fact not in danger”. She noted that despite treatment and referral from her premises to St Paul’s Rehabilitation Unit at Port Phillip Prison the symptoms persisted for at least two months, if not longer.
Also tendered before me, and as Exhibit D, was a report of Dr Lester Walton, a consultant psychiatrist of great experience, dated 30 November 2005. Dr Walton had examined the accused on 21 October 2005 at Port Phillip Prison and he too had examined relevant material, including two reports of Dr Jager, of 14 July 2004 and 15 August 2005.
Dr Walton in relevant part stated in his 30 November 2005 report as follows:
“There would seem to be concordance of psychiatric opinion that at the time of the alleged offending, Mr Whelan exhibited disturbed thinking to a point where he could not reason with a moderate degree of sense and composure on the rightness or wrongness of his actions, as perceived by reasonable people. I certainly am of that view myself.
The area of doubt/confusion/disagreement is in relation to whether or not this man has a qualifying mental illness which might allow his disturbed mental state to be recognised as formal mental impairment.
As Dr wood emphasises, there is no way of differentiating clinically (symptom profile and the like) between an episode of acute schizophrenia and amphetamine‑induced psychosis, let alone the more complicated and probable situation in this case of schizophrenia aggravated by amphetamine abuse. In other words, I freely acknowledge that there is a substantial degree of uncertainty regarding diagnostic and other conclusions in this case. However, what I would state is that, perhaps on a fairly fine balance of probabilities, like Dr Wood, I am ultimately persuaded that the duration of this man’s psychosis, especially once he was no longer using amphetamine, and in the face of prescription of antipsychotic medication, is inconsistent with a simple drug‑induced psychosis. Therefore the most likely candidate for diagnosis is schizophrenia, very probably at least aggravated by the parallel amphetamine abuse.
Thus I conclude that this man does have a formal defence of mental impairment available to him. As stated above, there are reservations about that conclusion but ultimately it is my view that it is more probable than not.”
Dr Walton gave clear evidence before me in which he stated:
“My opinion is that (the accused) is properly diagnosed as suffering from schizophrenia and that that condition was present at the time and of an order of severity that it was impairing him in the sense that he could not reason with a moderate degree of sense and composure on the wrongfulness of his actions at the time.”
In relation to a contrary hypothesis, that of Dr Jager to which I shall shortly come, Dr Walton said:
“I think the greatest weight in terms of the difficult task of differentiating a drug‑induced psychosis from genuine schizophrenia as an illness is the fact that the condition or the psychotic symptoms persisted for so long in the absence of any ongoing use of amphetamine, and also I might say, in the face of actually being treated with antipsychotic medication.”
Dr Walton went on:
“...a simple drug‑induced condition would usually resolve in the absence of any treatment in a matter of days.”
Dr Walton further stated:
“...it would appear that the taking of excessive amounts of amphetamine which occurred leading up to this incident did not actually begin until after the psychotic symptoms had emerged and very likely in response to those symptoms.”
Dr Jager was not called before me and indeed was not present at the hearing and the two reports Dr Jager made, which the two other psychiatrists referred to, namely the report of 14 July 2004 and 15 August 2005, were not tendered before me. The prosecution was not in a position to tender them because he was not the treating doctor of the prosecution. Mr Cash, for the accused, did not tender them. The non-tender was entirely competent and proper by Mr Cash as these are adversarial proceedings. However, having regard to the detailed citation by the two called psychiatrists of Dr Jager’s reports I consider it is proper and appropriate to look at the material so cited, whilst not formally tendered before me and thus not evidence of the truth of the opinion stated, as an alternative hypothesis which may be open on the material. Accordingly, I have examined the opinions of Dr Jager on that basis. As, of course, Mr Cash appreciated, there is a discretion in s.21(4)(a) as to the finding which may be brought in by a judge ‑ the word “may” clearly indicates that ‑ and if I were troubled or unsatisfied by the lack of the production of Dr Jager’s reports I could have acted under that discretion. For the reasons I have stated, I am not troubled by it because I have had regard to the material as an alternative hypothesis as articulated in the reports which have been tendered before me.
Dr Jager was not a treating psychiatrist of the accused. He was retained by the accused’s legal representatives for assessment of the accused. To that end he examined the accused on 11 June 2004 and reported thereon on 14 July 2004. Dr Jager made a further report, dated 15 August 2005, in relation to the report of Dr Wood of 20 July 2005. The first report was sighted by Drs Wood and Walton and the second by Dr Walton. Dr Jager concluded that at the time of the relevant events the accused was suffering from an amphetamine-induced psychotic disorder rendering him mentally impaired in that he did not know that what he was doing was wrong. Thus the essential difference between the opinion of Dr Jager and those of Dr Wood and Dr Walton is that Dr Jager considers that the psychosis was amphetamine-induced.
Having given due weight to Dr Jager’s opinions so cited, and thus given that alternative hypothesis full weight and considerable attention, I am persuaded on the balance of probabilities that the accused was suffering at the time of the fatal acts from mental impairment which was not drug-induced. There are three reasons for that conclusion. First, the evidence of the psychiatrists called: both Dr Wood, who was a treating psychiatrist for a considerable time and Dr Walton who, if I may say so, addressed the issues with considerable care and I consider very good judgment. Second, the chronology, that is to say the appearance of the psychotic symptoms pre-ingestion. Third, the persistence of psychotic symptoms well after the cessation of ingestion of amphetamines and indeed in the face of remedial medication.
For those reasons I am satisfied that the accused did not know the conduct was wrong at the time he caused the fatal acts. Accordingly I find the accused not guilty of the murder of Marianne Rita Whelan because of mental impairment.
Pursuant to s.23 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 I declare that the accused is liable to supervision under Part 5 of the Act.
Pursuant to s.24 (and I will come to both counsel in a moment) I shall order that the accused, pending the relevant making of an order, be remanded appropriately (and I will be obliged for the assistance of counsel in that particular).
Under Part 5 and pursuant to s.28(1) I set the nominal term of supervision order of 25 years.
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