R v Ang

[2008] NSWSC 673

CITATION:	R v ANG [2008] NSWSC 673
HEARING DATE(S):	16, 19, 20, 22, 23 May 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J
EX TEMPORE JUDGMENT DATE:	23 May 2008
DECISION:	Not guilty by reason of mental illness.
CATCHWORDS:	CRIMINAL LAW - mental illness defence
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 s 38
CATEGORY:	Principal judgment
CASES CITED:	Regina v M'Naghten (1843) 8 ER 718
PARTIES:	Regina v Thiah ANG
FILE NUMBER(S):	SC 2007/5035001
COUNSEL:	Mr J P Kiely SC (Crown) Mr P M Winch (Accused)
SOLICITORS:	S C Kavanagh (Crown) Ms H Shaw (Legal Aid Commission of NSW) (Accused)

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

Adams J

Friday 23 May 2008

2007/5035001 - Regina v Thiah ANG

JUDGMENT

1 HIS HONOUR: The accused Thiah Ang is charged with the murder of his wife Chui Yuke Ang and wounding Nicholas Ang, his son, then aged 15 years, with intent to murder him. On arraignment on 19 May 2008 he pleaded not guilty to both charges. It is undisputed, indeed indisputable, that at the time of the incidents giving rise to these charges on 3 February 2007 Mr Ang was suffering from a very severe mental illness which may be described in psychiatric language as major depression with psychotic features.

2 The relevant facts and circumstances are not controversial. Indeed, they were set out in a statement of agreed facts signed by Senior Counsel for the Crown and Counsel for the defence. There is no doubt that the accused killed his wife and attempted to kill his son. It cannot be doubted that he attacked them because (in lay language) he was mad. His madness allowed him some level of reasoning. For example, he was aware that in order to kill them he needed implements. He knew where the hammer and knife which he ultimately used were. He knew how to wield them. He was aware of his physical surroundings. However, his depression and psychosis were such that in every relevant sense it may be said that he lived in a world of his own, a world which the lay person finds it almost impossible to conceptualise, a world in which life was so bleak, the future so despairing, and present existence so painful that it led this man who loved his wife and his son, to wish to kill them and take his own life. This is not at all one of those cases where an estranged husband kills his family and himself in an act of extreme defiance and anger.

3 The accused was examined by a number of highly competent and well-respected psychiatrists: on behalf of the Crown by Dr Lisa Brown and Dr Stephen Allnutt and on behalf of the defence by Dr Olav Nielssen and Dr Bruce Westmore. Also called by the Crown was Dr Cook, who in his role as a consultant for Justice Health, treated the accused when he was brought in to prison after he was released from the Prince of Wales Hospital, where he was taken following his attack on his wife and son, and because he had attempted to commit suicide. Other psychological assessments were made to which I do not need to advert.

4 All doctors are agreed that the accused suffered from a disease of the mind which gravely affected his understanding of what he was doing and his ability to reason about what he was doing. There is unanimity of opinion that he was suffering from a substantial impairment of his ability to reason. The issue, however, upon which the doctors called by the Crown differ with those called by the defence is whether he was mentally ill at the time within the meaning of s 38 of the Mental Health (Criminal Procedure) Act 1990 which provides –

“38( 1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.
(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.”

5 Crucially, the question here is whether the accused was labouring under such a defect of reason from a disease of the mind as not to know the quality and nature of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.

6 It is clear that the accused was aware of the quality and nature of what he was doing, namely, killing his wife and attempting to kill his son. The real question is whether he knew that what he was doing was wrong. As I have said, upon this matter the doctors are divided. It is fair to say, however, that both Dr Allnutt and Dr Brown agree that if he did know that what he was doing was wrong the knowledge was marginal and his ability to act on it extremely limited.

7 The issue is very much a matter of fact and degree and, although doctors Allnutt and Brown in the end concluded (because of matters to which I will refer in due course), that the accused did know that what he was doing was wrong, that finding was on a continuum only just separated from the border that carried into the defence of mental illness. If the Crown bore the onus of establishing that the accused was not innocent by reason of mental illness, the evidence would not have permitted a finding in favour of the Crown. However, the onus in this respect is upon the defence. Before such a verdict can be brought in it is necessary that the accused establish on the balance of probabilities that he is not guilty by virtue of his mental illness. I should say at once that I am completely satisfied that the accused is not guilty by virtue of mental illness either of the murder of his wife or the attempted murder of his son. I think I should, in justice, add that I do not only think that probably this is the case, I am quite certain that it is the case. I need to set out some of the facts to show why I have been brought to this conclusion.

8 As I have mentioned, Chui Yuke Ang was the wife of the accused and lived with him and their only child in a suburb of Sydney. The accused at the time of the offence was 52 years of age and had been born and raised in Malaysia. He had met his wife in 1983 and they married two years later. Following 13 years of residence in New Zealand they came to Australia. Their son was born in New Zealand in 1991 and accompanied them here. The accused was educated in Malaysia where he obtained a diploma in accounting and worked as an accountant in New Zealand. He was an accountant in Australia for something over two years when he resigned from his job. He was unemployed and unable to obtain work from that date. He undertook studies whilst unemployed, attending TAFE and obtaining a diploma in property management. He also completed a course at the University of New England and obtained a bachelor degree in training and development, hoping that this would enhance his job prospects.

9 The accused came to believe his attempt to find employment was hopeless and this was one of the major factors in his depression. It is important to note, however, that his depression was not caused by the difficulties that he experienced; rather those difficulties fed into a deep seated illness, known as major depression, the essence of which is that the person is unable to see the world in any hopeful or optimistic way and feels overwhelmed by any difficulties which come his way.

10 The history given by the accused to all the doctors was, broadly speaking, consistent. It is not subject to controversy. The family was an apparently happy one. Although the accused had done well at his studies at first, by the later part of 2006 he noted that his mood was sad, his sleep was not sound, he was more hot tempered, there were arguments with his wife and son. However, his weight was stable, his appetite remained normal and his energy levels and motivation remained adequate, he was performing well at university getting High Distinctions. Things markedly changed for him in September 2006, when he started having problems with his neighbours. He said that they began to make a lot of noise by turning music up loudly and preventing him from concentrating on his studies. He thought they were doing this deliberately to annoy him and interfere with his studies. In November 2006, he began to think they were spying on him through the television because each time he went upstairs or downstairs the music would come on. He concluded that his neighbours had placed a camera in the smoke alarm or the television. He covered the alarm with a piece of paper and started avoiding the TV. He believed that he was being observed through it. He was unable to say what might be his neighbour's motives for harassing him this way, but he certainly believed it to be so. By the end of the year he had only just passed his exams without achieving any distinction. He felt very bad. He believed he was being constantly watched and felt sad. His sleep remained poor but now his energy levels were reduced and he got tired more easily. He argued with his wife frequently about trivial matters. He felt more anxious about being watched all the time.

11 The accused’s paranoia led to the family moving to Mascot in January 2007 to get away from the neighbours but he believed that his new neighbours, again through the television and the windows, were watching him. He installed additional curtains and blinds for privacy but thought he was being watched through the smoke alarms. He continued to feel bad and sad. There was no doubt, I think, that by February his condition had worsened. He was frankly delusional and paranoid; he thought about suicide.

12 On the day in question, when the accused woke up, he had slept poorly and believed he had a cold and felt tired, but had no thought of suicide, or homicide for that matter. He spent the morning lying around the house. He felt miserable. His son returned home at about 3.30pm and he spoke to him for a while. His wife returned home at 6pm and they cooked dinner. The family ate dinner as usual. He did not speak much at dinner but there were no arguments or disagreements. He watched television and a DVD. He felt very tired. He said that at this time although he watched television he was not experiencing being watched by neighbours. His son went to bed at 9pm and he remained on the couch and continued to watch television. The accused and his wife went to bed about 10pm. She asked him to make love to her and they had sex, although he was not in the mood for it. His wife fell asleep. He could not sleep and went back to the lounge to watch television. He felt very sad. He now believed that the neighbours were watching him. He told Dr Brown, "I feel like life was not worth carrying on, that nothing was working for me". For the first time that day he had thought of killing himself and thought, if he killed himself, he would leave his wife and son behind feeling very sad. He thought he should take them with him and end it all so they would not have to face the hardship and sadness of life. He never thought of any other options. He said he never thought about whether it was right or wrong. He felt it was the right thing to do. Dr Nielssen said (and this was echoed in evidence by the other doctors) that the accused acted out of a kind of mad altruism. Of course these were feelings that no one in their right mind could possibly have entertained.

13 Having made the decision to kill his wife and son and himself, the accused went to the kitchen and obtained a hammer and a knife. He took the hammer, as he said, to knock his wife and son unconscious as he did not want them to feel any pain when he killed them. This, he said, was because he loved them. He said he first went in to the bedroom where his wife was sleeping, he walked up to the bed and hit her on the head with the hammer. He said he was not really thinking anything at that time but felt bad about what he was doing. Then he stabbed her. She struggled. He said he just wanted to get it over and done with. She stopped moving. The accused was unable to describe his feelings at the time. He then went in to his son's room but his son was awake. He told his son that he had to die because there were evil people after him, and he was doing this it to make life easier. Whether he actually believed at the time that there were bad people outside the house, as he told his son, is uncertain.

14 The nature of the events themselves, the post traumatic stress disorder which the accused suffered following the events, which of course were horrendously violent and which involved what I am persuaded was a very serious attempt at suicide substantially contributed to confusion and unclear recollections of what happened. There may be some confabulation. I think that his accounts, seemingly ordered, are misleadingly so. It is important to remember that, by the time the accused gave those accounts, he had been under treatment and medication for some time. One of the doctors described the need for the healthy mind to order the world and to understand experiences, so that memories then become reconstructed, quite unconsciously. We know this is true in our own experience. I do not doubt that this was also operating in the accused. This means that one must be cautious about attributing to his account a clarity of understanding and recollection which is rather more apparent than real.

15 The accused’s son, after a struggle, took the hammer from him. The accused produced the knife, there was a fight over the knife, he managed to get the hammer back, he stabbed his son and punched him. His son said to him that he did not want to die or that he wanted to live. At this point the accused said that "I couldn't do it any more", and he desisted from any further attack. His son said in his statement to police that, at this time, the accused got in to bed with him and lay down beside him. He started to talk, saying –

“It's okay. I'm sorry. Don't hate me for what I have done. Everything is going to be okay. I am so sorry. Bad people have framed me. Contact your aunties and uncles and mother's boss and tell them what happened. They will take care of you and you need to live your life. Your mother and I have decided it will be better this way. I am going to my room to call an ambulance and write a letter. I am also going to kill myself.”

16 I think it is worth observing that, although these words are given by the son in his statement as a narrative, I rather doubt that the utterances occurred in this way. I accept that something very like this was indeed said by the accused to his son, but it is necessary to be cautious about assuming too much about the mode in which these things were said. The context of this conversation shows how bizarre it really is: the accused has badly injured his son, who is bleeding severely; he does nothing to help his son; he does nothing to bind any wound; he lies next to his injured son and has a conversation about how necessary it all is and that he is going to kill himself. There is no sense of urgency about getting an ambulance. The accused tries to explain what has been done to his son by referring to two significant delusions: the first that there were bad people who had framed him, that there were bad people outside; and the second is that he and his wife had decided that it would be better that they should all die than live in the terrible world (which the ill state of his mind created for him).

17 Dr Allnutt and Dr Brown pointed to this conversation as suggesting that the accused knew that what he was doing was wrong. I am unable to accept that explanation. To my mind, there is not a hint of understanding that what he was doing was wrong. He certainly was thinking about what would happen to his son, wanting to explain to his son why he was acting in the way he was, and telling him about the terrible world in which he was (in the event) going to permit his son to live. But this is very far from any knowledge that what he was doing was wrong. To the contrary, I think it shows that he was completely convinced that he had to act as he did and wanted his son to understand the reasons.

18 In all of these circumstances, I do not believe that the accused thought he was doing anything wrong. The fact that he desisted from his attack because, as he said, he could not do it, is due, I think, to the conflict that arose between his undoubtedly deep love for his son on the one hand (a powerful, if not overpowering, emotion) and the painful decision that he had made to kill him. An acknowledgement of this conflict of emotion and understanding is to my mind very far from a moral discourse in which occurred to him that what he was doing might be wrong. He gave his son a hug and said goodbye. I think this was an act of sadness; I suspect it was an act of despairing, it was certainly an act of farewell because he knew he was about to kill himself. I do not see how this statement shows a perception that what he was doing was wrong. On the contrary, I think it reflected a continuation of the decision that he had earlier made and was a confirmation of the rightness of what he was doing. I think, in short, that the accused acted as he did because he was unable by virtue of his illness to perceive that he was doing might be wrong.

19 To continue the narrative. The accused went back to his bedroom and indeed called “000”. He first connected with the Ambulance Service. He gave his address. He did not seek any help for his son or for that matter for himself. Obviously because, in the latter case, he had decided he was going to commit suicide, but also I think because so far as his son was concerned he was unable to think that something should then be done to help him. He asked immediately to be connected to the police. He said to the operator, "I have just killed my wife and son. I am killing myself". He was asked, "You have killed your wife and son?" He said, "Yeah, I'm not sure whether he's dead or not but I can't do it any more. I want to die. I do not want to talk any more". He was not, as it happened, transferred to the police. He was told by the operator the police would be sent.

20 The police came to the premises shortly after. The accused's son answered the door after about ten minutes or so. There was a large amount of blood over his face and the blood was running down his body. The police obviously thought that he might be a suspect for some serious crime and treated him accordingly but not, I think, inappropriately. He was attended eventually by ambulance personnel. The accused and his wife were on adjacent single beds. The accused had a knife in his hand with a severe wound to his neck. He was still alive though semiconscious. The deceased had massive injuries to the neck and was obviously dead. The accused was taken to Prince of Wales Hospital. In the ambulance he said he had hurt his wife and son. He was plainly anaemic from loss of blood by the time he arrived. (I interpolate that one of the reasons Dr Brown gave for thinking that the accused may have had some capacity to know right from wrong was that she thought his suicide attempt was not serious because she thought he was only slightly injured. It is clear that this opinion is mistaken. The neck injury was severe and had only just missed a major blood vessel.) The accused was scheduled as a mentally ill patient and remained at the hospital for some little time after having been operated on in the early hours of the morning of 3 February 2007. He went to Long Bay Prison on 7 February where he was seen by Dr Cook. Dr Cook concluded that he was severely mentally ill at that point. With medication and other assistance he gradually improved.

21 Before attempting to kill himself he had written a note on a used envelope. It read –

“Police. I have just killed my wife and son who is bleeding with hammer blows and knife wound. My hand is hurt so this is bad writing.”

22 He signed it. On the envelope was the marks of fluid and also a thumb print in blood. Next to these the accused had written, "My saliva as proof of this (right first finger)". This was not the act of a sane man.

23 The accused's son had suffered bruising and swelling to his right ear, extensive bruising to his scalp and face, lacerations to the scalp and, the right side of the neck, bruising to the right upper arm, marks and bruising to the right arm and wrist, bruising and scratch marks to the left arm, scratches and bruising to the chest and shoulder areas. To my mind these injuries provide eloquent evidence of the ferocious attack made on him by the accused, then in what I am convinced was the throes of an overwhelming mental disturbance.

24 The accused was seen by police and gave a record of interview. It is unnecessary for present purposes for me to refer to the details of it. They are not significantly different from what I have already said were the circumstances as the accused recalled them.

25 I do not intend to analyse the medical evidence in detail. All doctors are agreed as to the severe mental illness suffered by the accused. Doctors Brown and Allnutt pointed to various matters which in their judgment indicated that he had some capacity of moral understanding. In substance, they were the conversation with his son, the farewell to his son, the writing of the suicide note, and his desisting from his attack on his son. I have dealt already with my view of these matters and what facts can reasonably be inferred from them, except for the note. It is sufficient I think to say of the note that it is a flat statement of fact. I do not see that it suggests any understanding by the accused that what he had done was wrong. It was just, I think, a tidying up by someone who had come to the end of his tether, who wanted to be done with the world, and who was passing on, as it were, future responsibility for the circumstances which he had brought about to authorities: he was a law abiding accountant.

26 I am persuaded by the evidence of Dr Nielssen and Dr Westmore that the accused did not have the capacity to understand that what he was doing was wrong. He felt it was right but did not have the means, because of his psychosis and major depression, to come to any other conclusion or to consider any other possibility. Whether it is necessary to go quite so far is not entirely clear. One formulation of the M’Naghten defence proposed first by Sir Owen Dixon, (restated on other occasions) is that the defence is made out "when the accused cannot reason with some moderate degree of calmness as to the moral quality of what he is doing". By any standard that was this accused. I am satisfied that his condition was far worse than that.

27 For these reasons, I consider that at the time he killed his wife and at the time he attacked his son the accused was not guilty by reason of mental illness of the offences which otherwise may have been committed. Accordingly, I enter a special verdict pursuant to s 38 of the Act.

28 It is necessary now to consider what orders are appropriate under s 39 of the Act and for that purpose I will give appropriate directions for a further hearing.

ADJOURNED TO FRIDAY 4 JULY 2008 AT 10AM.

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