R v Birri Morris

[2017] NSWSC 945

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Birri Morris [2017] NSWSC 945
Hearing dates:	10 July 2017 – 13 July 2017
Date of orders:	13 July 2017
Decision date:	13 July 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict that Mr Morris is not guilty of murdering Mr Roberts by reason of mental illness; (2) Under s 39 of the Act, Birri Jo Morris is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law; (3)   I direct the Registrar to notify the Minister for Health of these orders; (4)   I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the psychiatric exhibits.
Catchwords:	CRIMINAL LAW – special hearing – murder – circumstantial case – mental illness defence – held that actus reus for murder satisfied – held that accused had untreated paranoid schizophrenia at the time of offending – special verdict entered
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Alford v Magee (1952) 85 CLR 437 Commissioner for Road Transport and Tramways v Prerauer (1950) 50 SR (NSW) 271 Hawkins v The Queen (1994) 179 CLR 500 R v McNaughten (1843) 8 ER 718 R v Minani (2005) 63 NSWLR 490 R v Presser [1958] VR 45 Stanton v The Queen [2003] HCA 29; 77 ALJR 1151 The King v Porter [1933] HCA 1; 55 CLR 182
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Birri Morris (Accused)
Representation:	Counsel: C Todd (Crown) C Bruce SC (Accused)   Solicitors: D Collin, Director of Public Prosecutions (Crown) H van Dugteren, Legal Aid NSW (Accused)
File Number(s):	2014/00374163
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

Background

1. The accused, Mr Birri Morris, has been charged with the murder of Mr Nicholas Roberts. It is alleged by the Crown that on 21 December 2014 at Lismore in New South Wales, the accused physically assaulted and stabbed the deceased, seriously injuring him. The injuries included extensive traumatic brain injuries associated with severe facial fractures. Mr Roberts died on 2 January 2015 at the Princess Alexandra Hospital in Brisbane, Queensland.

2. The head injuries were the primary cause of death. The stab wound was not severe enough to contribute to death. However, its presence may be important for other reasons. The question of how Mr Roberts came by his fatal injuries is the central issue in the case. There is no doubt that they were caused by blunt force trauma. The question is “how was the trauma inflicted”?

3. The issue is to be decided in the context of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) (‘the Act’). On 8 February 2016 after an inquiry under s 12 of the Act, Hulme AJ found the accused unfit to be tried in accordance with the relevant criteria settled in R v Presser [1958] VR 45 at 48. Under s 14 of the Act, his Honour referred the accused to the Mental Health Review Tribunal for the purpose of determining whether, on the balance of probabilities, he would become fit to be tried for the offence within 12 months of his Honour’s determination: see s 16(1). The accused was remanded in custody pending the Tribunal’s consideration of the matter. In custody in these circumstances he is classified as a ‘forensic patient’ under s 42 of the Act.

4. On 9 May 2016 and 22 November 2016 respectively, the Tribunal assessed and reviewed the accused, concluding that he would not become fit to be tried within the following 12 months. Section 46 of the Act required the Tribunal to review each forensic patient at least six-monthly. On 28 November 2016, the Director of Public Prosecutions advised that the matter proceed to a special hearing under s 19(1)(a) of the Act which was fixed to commence before me on 10 July 2017. Neither party elected for hearing by jury: see s 21A(1).

Special hearing

5. Fundamentally, a special hearing has the purpose of seeing that justice is done as best it can be in the circumstances. The prosecution has an interest in seeing that justice be done in its role of representing the interests of the community. In that particular sense, a special hearing has something in common with the ordinary purposes of the criminal trial. From the perspective of an accused, a special hearing provides the opportunity of a finding of not guilty, in which event the charge will cease to hang over the accused’s head and the accused might then seek treatment outside the criminal justice system. Indeed this is the primary, statutory purpose of the special hearing procedure, that unless the Crown can prove beyond reasonable doubt that on the limited evidence available the accused committed the offence of murdering Mr Roberts, or committed his manslaughter, he is entitled to be acquitted.

6. At the commencement of the special hearing an indictment was presented in terms that:

Birri Morris on 2 January 2015 at Brisbane in the State of Queensland did murder Nicholas Roberts.

The State of Queensland is referred to because Mr Roberts died there as a result of the injuries he received on 21 December 2014, him having been transferred there from Lismore Base Hospital for treatment before his death.

7. Section 21(3)(a) of the Act provides that at a special hearing an accused person “is to be taken to have pleaded not guilty in respect of the offence charged” and I caused a plea of not guilty to be recorded accordingly. Subject to the Act, a “special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.” As the accused is not fit to plead, and in recognition of his mental condition, the special hearing is said to proceed on “limited evidence”. Clearly, his inability to fully comprehend the nature of the proceedings and adequately instruct counsel, for instance, affects the evidence that can be actually adduced at the hearing. Notwithstanding these limitations, such an accused is entitled to give evidence if he chooses (s 21(3)(d)) and raise defences as if the proceedings were an ordinary criminal trial (s 21(3)(c)). The Act is intended to ensure that an accused is not prejudiced at a special hearing any more than his or her unfitness already may do.

Generally applicable legal principles

8. As the special hearing was conducted without a jury, certain consequences follow. Importantly, I am the sole arbiter of law and fact, assuming in that latter regard what would ordinarily be the role of the jury as the tribunal of fact. The decision I make has “the same effect as a verdict of a jury”: s 133(1) Criminal Procedure Act 1968 (NSW) (“CPA”).

9. The Act empowers me to bring in one of the following verdicts only:

(a)   not guilty of the offence charged,

(b)   not guilty on the ground of mental illness,

(c)   that on the limited evidence available, the accused person committed the offence charged,

(d)   that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

The legal consequences of a verdict unfavourable to an accused differ from normal trials. A verdict “that on the limited evidence available, the accused person committed the offence charged … constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates …”: s 22(1) and (3).

10. Unlike a jury, a judge must give reasons for his or her verdict. I must include in my judgment the principles of law I have applied and the findings of fact on which I have relied: s 133(2) CPA. Secondly, I must take into account any warnings that would have been required to be given to a jury in the circumstances of this case: s 133(3) CPA. I have reminded myself of the potential unreliability of hearsay evidence and the reasons for that, during the hearing.

11. In identifying applicable legal principles, I have borne in mind that Owen J said in Commissioner for Road Transport and Tramways v Prerauer (1950) 50 SR (NSW) 271 at 277, that the “first duty” of the judge is “to explain … in simple, understandable fashion the law which is applicable to the particular case before them”. In Alford v Magee (1952) 85 CLR 437 at 466, the High Court pointed out by reference to Owen J’s remarks that it is for the judge to identify the real issues for decision, stating only so much of the law as is relevant to those issues.

12. It is of fundamental importance in any criminal trial that the accused is presumed to be innocent. In this case, it is for the Crown to prove the elements of the charge of murder against the accused beyond reasonable doubt. Those elements are that:

1. By his deliberate act or acts, the accused caused the death of the deceased; and

2. The accused intended at that time to either kill, or to inflict really serious bodily injury upon, the deceased.

For reasons I am about to explain, the second issue does not really arise. This is because the accused has raised the mental illness defence and both psychiatrists agree, so far as it depends upon expert opinion, that the defence is available. It remains necessary for me to evaluate the relevant evidence for myself, but unless I reject their unanimous evidence because, for example, I form a view of the primary facts materially different from the assumptions they have made, I should accept the expert evidence.

13. Moreover this hearing is an adversarial process, and both Counsel accept if I am satisfied beyond reasonable doubt the accused caused Mr Roberts’s death by his deliberate act, the accused has established the mental illness defence on the balance of probabilities, it being his onus.

The significance of mental illness

14. Just as an accused person is presumed innocent, he or she is also presumed to be sane. The accused having raised the mental illness defence, the onus is upon him to rebut the presumption of sanity by making it out on the balance of probabilities. This is a much less exacting standard of proof than proof beyond reasonable doubt.

15. The raising of a mental illness defence also has important consequences in terms of the usual sequence (if there is one: cf Stanton v The Queen [2003] HCA 29; 77 ALJR 1151) in which the issues are required to be approached and determined. Following what the High Court said in Hawkins v The Queen (1994) 179 CLR 500 at 510, 512-514, 517, no question of intent arises for determination if the accused is not criminally responsible for his act by reason of mental illness: R v Minani (2005) 63 NSWLR 490 at 498 [32]. And this notwithstanding, there may be no necessary inconsistency between a mental illness and the existence of a specific intent to do serious harm: Hawkins at 515.

The issues to be determined

16. The first and central issue to be determined is whether it was an act of the accused, which was deliberate in the sense of being voluntary and willed, which caused the death of the deceased. Evidence of mental illness is irrelevant for the purposes of this inquiry. As I have said, there are some disputed areas of fact and I am required to try and reach a conclusion as to what happened to cause the death of the deceased. There can be no doubt that the cause of death was blunt force trauma to the head of the deceased. The mechanism leading to the infliction of that trauma, however, is at issue.

17. I will repeat, unless the Crown satisfies me beyond reasonable that by his deliberate act the accused inflicted the fatal blunt force trauma, I must acquit him of the charge of murder without consideration of the issues which may otherwise arise. The issue of mental illness and substantial impairment, for instance, only arise if the Crown succeeds on this first issue.

Circumstantial evidence

18. To prove its case, the Crown relies heavily upon circumstantial evidence. This is because there is no direct evidence by way of either eyewitness accounts or clear admission that deals comprehensively with all of the circumstances thrown up by the whole of the evidence lead in this case. The whole of the evidence suggests that salient events may have occurred at two nearby locations within the curtilage of 37 Uralba Street, Lismore. It is put by the learned Crown Prosecutor that all of these events should be regarded as incidents in a continuing violent course of conduct constituting a single occurrence for the purpose of the case. Even on this argument, it is clear that the initiating incident occurring on or around a staircase was not seen by any witness, although it was heard. The concluding incidents were at least in part seen by one witness, a Mr Veratau. To this extent the Crown case depends upon persuading me to draw an inference from the whole of the circumstances it says it has otherwise proved. Thus the case is circumstantial.

19. Where a case is based upon circumstantial evidence, it is important to appreciate that the prosecution will have failed to prove its case beyond reasonable doubt unless the deliberate infliction of blunt force trauma on Mr Roberts by Mr Morris is the only rational inference that can be drawn from the whole of the circumstances actually established to my satisfaction by the evidence I accept. To put it another way, I cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no explanation other than that Mr Morris’s voluntary, willed act caused Mr Roberts’s death, is reasonably compatible with all of the circumstances.

20. It is of critical importance when considering a circumstantial case that all of the circumstances established by the evidence are considered and weighed together, not individually or in a piecemeal fashion. Sometimes the probative force of a mass of evidence may be cumulative. It is essential to apply the burden of proof strictly. Here, as the issues have been presented for determination, I am concerned only with the first element of the offence of murder.

21. Proof beyond reasonable doubt does not mean that every fact – every piece of evidence – relied on to prove a deliberate act causing death by inference must itself be proved beyond reasonable doubt. I will repeat, sometimes the persuasive force of a mass of evidence is derived from its cumulative effect, rather than the inherent strength of its individual components. In such circumstances, it is unnecessary and indeed pointless to consider the degree of probability of each item of evidence separately.

22. If, having considered all the circumstances established by the evidence I accept together, rather than piecemeal, there is an available inference consistent with innocence, I must decide Mr Morris is not guilty of murder.

Concession made by Defence Counsel

23. Before dealing with the evidence which I accept in the case, I should record that this morning, when the hearing of the matter resumed, Mr Bruce of Senior Counsel informed the Court that, having reviewed the whole of the evidence lead so far in preparation for his final argument, he thought it proper to concede that the Crown had proved beyond reasonable doubt that a voluntary willed act of Mr Morris had caused Mr Roberts’s death. Such a concession coming from such an experienced Senior Counsel of course must carry much weight. However, given Mr Morris’s particular circumstances, that is to say his mental illness, and as this is a special hearing, it remains necessary for me to decide for myself whether I am satisfied beyond reasonable doubt of that essential element of the offence.

24. It should be recognised that although Mr Morris, by reason of his condition, may be impaired in his ability to provide instructions to his solicitor and counsel, Senior Counsel, in common with all members of the Bar, owe obligations not just to their clients but also to the Court. I accept that Mr Bruce’s concession was properly made on my own view of the evidence which I have also reviewed. However, this does not entirely relieve me of the obligation to which I have already referred to give reasons for the verdict I will deliver.

The first issue – the actus reus for murder

Background

25. A logical place to start is to say something about the background proved by the evidence to the circumstances which occurred on 21 December 2014.

26. Mr Morris and Mr Roberts were unknown to each other but met on that afternoon at the home unit where a Mr Skinner was then temporarily residing. Mr Skinner and Mr Morris were a little acquainted, having met on several occasions around Lismore, including at the Lismore soup kitchen. Mr Skinner, at least during the time that he had been residing at 37 Uralba Street, had become friendly with Mr Roberts.

27. Mr Roberts, a man in his late fifties, had suffered the rupture of a cerebral aneurism in the past. That rupture had been surgically clipped. However, the rupture left him with ongoing disabilities including, according to the evidence I have heard, some paralysis, probably down the left side of his body, and epilepsy, which made him subject to frequent seizures. These facts relating to Mr Roberts’s pre-existing condition were, up until the time of Mr Bruce’s concession, fertile ground for an exploration of the circumstances leading to his injury.

28. I should also say now that the evidence from the psychiatrists establishes that Mr Morris had been diagnosed with some psychiatric issues prior to December 2014. He had been admitted as a voluntary patient to the psychiatric ward at Kempsey District Hospital back in 2013. At that time, his condition was diagnosed as being a depressive illness and he received medication for that particular condition. As at 21 December 2014 he was not under any active treatment.

29. Mr Skinner and Mr Morris chanced upon each other on the afternoon of 21 December 2014 and, having spent some time together, Mr Skinner invited Mr Morris back to his place where they proposed to smoke some cannabis, a drug whose deleterious effect upon certain susceptible people is well-known. Indeed, Mr Morris had told the psychiatrist whom he subsequently saw, that apart from smoking cannabis that afternoon, he had also smoked the notorious drug “ice” and had taken some other drug he thought might have been heroin by way of injection.

30. When Mr Skinner and Mr Morris repaired to Mr Skinner’s temporary home, Mr Roberts was invited to join them, and the three of them apparently spent a pleasant afternoon in each other’s company, drinking coffee, eating pancakes and smoking cannabis. Sometime in the afternoon, probably around 6.00pm, Mr Roberts made an innocuous request for another cup of coffee.

31. As Mr Skinner had run out of milk, there was some talk about Mr Roberts going back to his place to get some money to buy milk, him having only a little at home anyway. Out of concern for Mr Roberts, having regard to what Mr Skinner regarded as his frailty from his previous health problems, Mr Skinner asked Mr Morris to go with him, I infer in case Mr Roberts needed some assistance.

32. When the pancakes were prepared by Mr Skinner, he had produced three knives so that each of the party could butter their own pancake. One of those knives was a paring knife with a bluish plastic handle which had apparently been left on the coffee table after the party had consumed their pancakes. It is obvious that Mr Morris, as he left with Mr Roberts at Mr Skinner’s request, picked up that knife and took it with him.

33. Although I am not required in the circumstances of the case to make any finding about Mr Morris’s intent, given that the mental illness defence is likely to be available to him, I think the fact that he took the knife with him is significant evidence, or a significant circumstance, tending to prove that Mr Morris inflicted the injuries from which Mr Roberts died, rather than him having come by them accidentally. I interpolate that amongst the injuries, as I have said at the outset, were stab wounds, one to Mr Roberts’s back and another to his left elbow. I find that those stab wounds were deliberately inflicted by Mr Morris. That he was prepared to inflict those injuries is a circumstance which points to the consideration that he voluntarily and deliberately inflicted the other injuries which caused Mr Roberts’s death.

The injuries suffered by Mr Roberts

34. Although the evidence is not entirely clear, as I have said, Mr Roberts died from the effects of a traumatic brain injury. From the report of Dr Ong, the forensic pathologist who carried out the post-mortem examination on Mr Roberts after his death, I accept that the type of force required to inflict the injuries to Mr Roberts’s head that he found on post-mortem examination was severe on a scale of mild, moderate and severe. Apart from the brain injuries, there were massive fractures to the left side of Mr Roberts’s skull, that is to say, to the bones of his face, including around the orbit of his eye. It seems to me that one can, taken together with the other circumstances, infer from that that some significant event caused them.

35. Mr Skinner, who had remained in his home unit, heard a sound which to him sounded like someone falling down the stairs. It was a thud, as he described it. I have had the benefit of a view of the premises at 37 Uralba Street, and the stairs from Mr Skinner’s unit consist of a short flight of three or four steps to a landing, and then a return leading to a longer flight of stairs which leads down to a foyer area where there are brick pillars. The forensic evidence in the case identified that at the foot of a pillar and nearby there was a patch of blood-staining. The pillar is somewhat to the right, when one is descending the stairs, from the foot of the stairs. However, there is no question that the blood there was the blood of Mr Roberts, this having been confirmed by appropriate DNA testing.

36. It seems to me that in all probability Mr Roberts tumbled down the stairs, striking his head heavily at the place where the largest bloodstain was, not quite at the pillar, causing his blood to splatter onto the pillar and onto the paving near the pillar. That circumstance suggests some force. Doubtless a person falling down stairs accidentally, with the assistance of gravity, will be subject to significant force. But when one considers other evidence I am about to recount, along with the evidence that I have already referred to of stab wounds to Mr Roberts, I am satisfied beyond reasonable doubt that Mr Morris deliberately threw Mr Roberts down those stairs, causing those serious injuries to be inflicted on him, from which he later died.

37. Continuing the factual narrative, one of the confounding aspects of the evidence in the case is that from the place at the foot of the stairs where I have found Mr Roberts landed, the two men found their way to the car park and across it to where two large skip type garbage bins which service the apartment complex were generally kept. Indeed when emergency services, that is, police and ambulance, attended the scene, Mr Roberts was found lying between the bins in a pool of his own blood, unconscious but breathing.

38. Some evidence about how he came to be there is provided by Mr Veratau, the only person who actually witnessed some of these events. His account starts, however, when the men were in close proximity to the bins.

39. Before dealing with it, I will record that Detective Senior Constable Paff, the officer-in-charge of the investigation, and other police officers gave evidence that they saw, as it were, drag marks on the bitumen surface of the car park leading from the end of the path from the units to the place where Mr Roberts was found by the first responders. Indeed forensic officers identified, not many, but some blood spots along that path.

40. That evidence on its own may not be of much consequence, but taken together with the other circumstances, including what I have said about my findings in relation to what happened on the staircase, and the fact that Mr Roberts was found in a pool of his own blood at the bins, I think probably what happened was that Mr Morris dragged him to that spot as the evidence suggests.

Witness accounts

41. In any event, I return to the evidence of Mr Veratau. Mr Veratau was in his apartment, which has a view of the car park, watching a DVD on his television. Like Mr Skinner, I suppose, his attention was attracted to the interactions between Mr Morris and Mr Roberts in the car park by a thudding sound, he said, like somebody’s head hitting the surface of the car park. On the view I have formed of the facts, I think that the serious damage to Mr Roberts was done, as I have said, at the foot of the stairs in the foyer. Nonetheless, when Mr Veratau heard that noise he looked out and saw Mr Roberts lying on the ground with a person, who we now know is Mr Morris, kicking him and eventually trying to lift him up. Mr Veratau’s impression was that Mr Morris was trying to put Mr Roberts into one of the bins.

42. I should say, without meaning to criticise him personally, that Mr Veratau was the type of witness who wanted to tell his own version of the story and was not much interested in answering Counsel’s questions if they got in the way of his narrative of what he remembered. That made his evidence a bit difficult to follow and it made him a witness whom I found it difficult to rely upon unswervingly. But in any event, he did see Mr Morris kick Mr Roberts, he thought not with much force, and did see him attempt to lift him.

43. It is also the case that there is evidence that Mr Morris complained of a sore foot to police later that day. One of his shoes had a bloodstain on its upper, and the sock of his left foot had a very significant bloodstain. These bloodstains were all Mr Roberts’s blood, so there can be no doubt that that at some stage during this transaction Mr Morris did kick Mr Roberts. Whether they were the kicks that Mr Veratau saw or some other application of force in the foyer is difficult to say. But the circumstance that Mr Morris seemed to be kicking Mr Roberts, and the independent evidence of contact between his feet and Mr Roberts, are also factors which go to proving by way of circumstantial evidence that the injuries received by Mr Roberts were inflicted on him by the voluntary, willed act of Mr Morris.

44. The fact that he may have been attempting to get Mr Roberts into the bin, an obviously hopeless task, may say something about his mental state at the time these events occurred.

Forensic evidence

45. The version of events which I have outlined, and which I accept, is also generally supported, as I have said, by the forensic evidence to which I have made passing reference. Moreover, it is also consistent with certain statements made at the time of, or shortly after the events by Mr Morris and statements Mr Morris made to the psychiatrists who examined him for the purpose of the case.

The accounts of the accused

46. Mr Morris has provided a number of accounts, in one form or another, of what happened on 21 December 2014 to witnesses, police officers and psychiatrists. As I have said already, the fact that this is a special hearing does not disentitle Mr Morris from choosing to give evidence. The accused was not called to give evidence in his own case. However, no adverse inference at all may be drawn from that circumstance and I remind myself that an unfit person may not be capable of making a reasoned decision about whether to give evidence, as with other matters concerning the hearing. Nonetheless, I must proceed on the basis of limited evidence available.

47. The out-of-court statements of the accused are a form of hearsay. I remind myself that hearsay evidence is considered generally unreliable compared to evidence given under oath or affirmation. It is also worth bearing in mind that an accused person might have a motive for proffering self-serving statements of an exculpatory kind. And the fact that Mr Morris cannot be cross-examined on those statements is a consideration I have borne in mind when weighing and assessing what he said to others.

48. However his statements are admissible on two bases: First, as admissions against interest, and secondly, as evidence founding the opinions expressed by the experts. These are exceptions to the hearsay rule and once admitted the statements may be used as part of the general body of evidence.

49. To my way of thinking, the most significant admissions made by Mr Morris in the immediate aftermath of his apparent attack on Mr Roberts are what he said to Mr Skinner. As I have already recounted, Mr Skinner was a person who was very well disposed towards Mr Roberts and it must be said I was left with the impression that Mr Skinner was horrified by what he deduced had occurred from the circumstances that he ascertained that evening. But, in any event, having heard the thudding, which he attributed to a person falling down the stairs, and going to investigate he had an encounter with Mr Morris. It might be said to have been a close encounter because Mr Skinner described going to his doorway and, as it is put, Mr Morris being “in his face”. During their exchange Mr Morris made it quite clear that he had done grievous harm to Mr Roberts saying “I think I killed him”. I take that to be an admission of the infliction of serious harm upon Mr Roberts. If I have not made it clear, Mr Roberts was then still alive and did not die until January.

50. Mr Morris also said something which is significant about his mental state at the time, in that he ascribed a motive for his actions, that Mr Roberts “killed black fellas”. I accept that evidence from Mr Skinner. Mr Morris is of Aboriginal heritage, as is Mr Skinner. However, the assertion that Mr Roberts killed anyone, of course, has no grain of truth in it whatsoever. It may be taken, I think, in the light of the evidence of the psychiatrists, as a delusion to which Mr Morris was subject at the time that he attacked Mr Roberts.

51. Mr Morris also made admissions to police officers who attended the scene very soon after the events that I have recounted and, for instance – and I will not detail all of it – when Senior Constable Moore arrived at the scene with his partner, Constable Stirling, he asked the accused, indicating the condition of Mr Roberts on the ground, “Did you do that?” and the accused replied, “Yeah, I did.”

52. I have seen the DVD of an interview which was undertaken with Mr Morris when he was in the back of the police van and he reaffirmed, as it were, having said that to the officers when they first arrived. Normally one may not put much credence on such an “admission”. It is obvious, looking at Mr Morris on the DVD, that he was, to use a vernacular expression, “out of it”, either because of the drugs he consumed or, with the benefit of hindsight, due to his mental state. Moreover, the question, “Did you do that?”, and the answer, “Yes, I did”, are somewhat devoid of content and in ordinary circumstances it would be difficult to attribute much weight to the admission. However, taken in conjunction with what was said to Mr Skinner, I think that the admission is entitled to weight in the circumstances of this case.

53. One of the perhaps chilling things about what was said to Mr Skinner was the way it was said. Mr Skinner made it very clear that Mr Morris was right in his personal space and the statement “That man’s killed people” or “That man’s killed black fellas” was whispered “inside [Mr Skinner’s] ear”.

54. All of these circumstances taken together satisfy me beyond reasonable doubt that by his deliberate act Mr Morris inflicted the injuries from which Mr Roberts died.

The second issue – mental illness defence

55. I will now turn to the second issue. The question of whether Mr Morris suffers from a mental illness to the degree necessary to constitute a defence turns very much upon expert opinion. In this case, the accused was assessed by psychiatrists, Dr Westmore for the Crown and Dr Furst for the defence, who provided reports for the benefit of the Court. I have also had the benefit of considering a report of Dr Elliott who examined Mr Morris for Justice Health to provide a report to the magistrate when the matter was before the Local Court.

56. I keep in mind that the reliability of those opinions depends not only upon the validity of the assumptions that they made about the medical history of the accused, but on the reliability of the accounts provided by the accused himself. However, all the experts agree that when he attacked Mr Roberts, Mr Morris was suffering from an untreated chronic schizophrenic illness, probably of a paranoid type, the symptoms of which included delusions, auditory hallucinations, and paranoia, and I accept their evidence.

57. The legal elements of the mental illness defence were established as long ago as 1843 and are colloquially known as the “McNaughten rules” after the decision of the House of Lords in R v McNaughten (1843) 8 ER 718. The rule is:

“[I]t must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong”.

58. The psychiatric condition of paranoid schizophrenia is clearly a disease of the mind. It is important to observe that that diagnosis was made very soon after Mr Morris was taken into custody by a psychiatrist who examined him on behalf of Justice Health. With the benefit of hindsight, probably he was suffering from that condition when he was treated at Kempsey Hospital back in 2013, although one would not criticise the doctors for failing to make the diagnosis upon his first presentation with mental health issues.

59. Clearly the condition was untreated on 21 December 2014. As I have said, much about his behaviour on that day, as documented by independent evidence, suggests that his conduct was somewhat bizarre. The first piece of evidence is, of course, what he said to Mr Skinner about his motivation for injuring Mr Roberts as he did and the way in which he said it. Secondly, there is the evidence of him, as I have said, picking up the knife and acting impulsively upon a murderous whim when he had been enjoying socialising with Mr Roberts and Mr Skinner up until that point in time.

60. There is also his behaviour as seen by Mr Pollard laughing when he was sitting on the grass near the pathway before the police arrived. It seems to me that laughing in that inappropriate circumstance is the type of thing that one would associate with a person who is out of touch, as it were, with reality.

61. There is also Mr Veratau’s evidence, despite what I have said about it, of Mr Morris repeatedly mumbling to himself as he was attempting to lift Mr Roberts and put him into the bin. That type of muttering is often associated with the schizophrenic condition. And, of course, there are the statements he made at different times on the day to police about not being able to identify himself because he had lost his passport.

62. Those type of things, in my judgment, give credence to the medical opinion expressed by the doctors. I am satisfied, given their unanimity, that the disease of the mind from which Mr Morris was suffering, which I have identified as paranoid schizophrenia, was such that he did not know the quality and nature of the act he was doing. Particularly in the sense that he was not able, because of his condition, to reason with composure about the acts he was committing in the same way as a person of normal, ordinary sensibility would be able to. I am satisfied in those circumstances on the balance of probabilities that he has made out the mental illness defence.

Special verdicts

63. Section 38 of the Act provides that a special verdict that an accused person is “not guilty by reason of mental illness” must be brought in where I am satisfied that the accused did the act charged but was legally mentally ill at the time. This accords with the findings I have just made. Such a verdict is to be distinguished in its legal consequences from a verdict of not guilty on the ground that the accused person did not do the things charged: see The King v Porter [1933] HCA 1; 55 CLR 182 at 185. The availability of a special verdict indicates that at law there was an important distinction to be drawn between the doing of an act, and an attribution of criminal responsibility for that act.

64. If a special verdict is returned, then s 39 of the Act falls for consideration. It sets out the various options for the Court in respect of the accused which include detention “in such place and in such manner as the Court thinks fit …”, or an order releasing him from custody, which may be subject to conditions: s 39(1). The Court is not to order for his release from custody however, “unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release”: s 39(2). Even then, the Minister for Health and the Attorney General must be given prior opportunity to make submissions in respect of the release.

65. A decision that Mr Morris be detained in custody means that he will continue with the status of a ‘forensic patient’ and would be subject to supervision by the Mental Health Review Tribunal responsible for the periodic review of his case and for the making of orders about his continued detention, care or treatment.

66. I emphasise that a special verdict is not the same as a verdict of not guilty. Given the view I have formed about Mr Morris’s mental condition and the consideration that it does not seem to me, on the evidence of the psychiatrists, to be completely under control, I am not satisfied by any stretch of thinking that Mr Morris ought to be released. He may not walk free from this Court. It is apparent to me from the evidence I have heard or read that his disease is far from cured. In these circumstances it is not appropriate to release Mr Morris into the community. I am not satisfied that he does not present a danger to himself or, importantly, to others.

67. Accordingly, the effect of my verdict will be that Mr Morris will be committed to the long-term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Act, the Tribunal may not release Mr Morris into the community unless and until it is satisfied that he will not seriously endanger any person including himself and, even then, not without giving notice to the relevant Ministers.

Orders

68. My orders are:

1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict that Mr Morris is not guilty of murdering Mr Roberts by reason of mental illness;

2. Under s 39 of the Act, Birri Jo Morris is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law;

3. I direct the Registrar to notify the Minister for Health of these orders;

4. I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the psychiatric exhibits.

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Amendments

17 July 2017 - [41] first sentence, "carpack" changed to "car park"

Decision last updated: 17 July 2017