R v Briggs

[2017] NSWSC 1685

Supreme Court

New South Wales

Medium Neutral Citation:	R v Briggs [2017] NSWSC 1685
Hearing dates:	5 December 2017
Date of orders:	06 December 2017
Decision date:	06 December 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)    I find the accused Alex John Briggs not guilty of the murder of Vivienne Slessor on 19 August 2016 on the grounds of mental illness. (2) I order that the accused be detained pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre or in such facility as the Mental Health Review Tribunal may determine until he is released by due process of law. (3)    I direct the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of these orders and in doing so to provide each of them with (a) a copy of the transcript of the proceedings before me; (b) a copy of the exhibits tendered; and (c) a copy of this judgment.
Catchwords:	CRIMINAL LAW – Offence – Murder – Mental illness – Where accused was son of the deceased – Where accused had suffered head injury some 17 years earlier – Evidence of pre-existing persecutory ideations and substance abuse disorder – Where accused had been admitted to psychiatric facility on two separate occasions – Accused diagnosed with schizophrenia by medical experts – Defence of mental illness made out – Accused found not guilty on the grounds of mental illness
Legislation Cited:	Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Mizzi v R (1960) 105 CLR 659; [1961] ALR 137 R v Afele [2014] NSWSC 366 R v Ayoub [1984] 2 NSWLR 511 R v Lazarus [2017] NSWCCA 279 R v M’Naghten (1843) 8 ER 718 R v Minani (2005) 63 NSWLR 490; (2005) NSWCCA 226 R v Porter (1933) 55 CLR 182, [1933] HCA 1 R v S [1979] 2 NSWLR 1
Category:	Principal judgment
Parties:	Regina - Crown Alex John Briggs - Accused
Representation:	Counsel: L Shaw - Crown I Nash - Accused   Solicitors: Director of Public Prosecutions NSW – Crown Legal Aid NSW – Accused
File Number(s):	2016/250460
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

INTRODUCTION

1. On 5 December 2017 Alexander John Briggs, whom I shall refer to as “the accused”, pleaded not guilty to an indictment alleging that on or about 19 August 2016 at Forbes in the State of New South Wales he did murder Vivienne Slessor.

2. On 11 August 2017 the accused had elected to be tried by a judge alone in respect of that offence. A copy of his signed election pursuant to s. 132 of the Criminal Procedure Act 1986 (“the CPA”) has been tendered and marked as Exhibit A.

3. A judge who tries criminal proceedings without a jury is not required to express all of the matters which would necessarily have to be stated to a jury unfamiliar with basic principles of law. However, s. 133(2) of the CPA requires that a trial Judge expose his or her reasoning process by linking the relevant principles of law to the facts as he or she finds them to be: R v Lazarus [2017] NSWCCA 279 at [141] and the authorities cited therein. I have approached my judgment in this matter with those factors in mind.

4. A bundle containing a number of statements and medical reports was tendered by the Crown without objection and marked as Exhibit B in the proceedings. That tender bundle included an agreed statement of facts regarding certain matters relating to the offending. The evidence contained within Exhibit B squarely raises the defence of mental illness.

5. It is necessary for me to make reference to a number of matters for the purposes of putting the circumstances surrounding Ms Slessor’s death into their proper context.

The accused’s injury in 2000

6. In May 2000 the accused, who was then aged 12, was admitted to Orange Base Hospital with a head injury which he had suffered as a consequence of falling 15 to 20 feet through a shed roof and onto a concrete floor. When admitted, he was found to have suffered a skull fracture.

7. I will come in more detail to the medical evidence in a moment. However, in his report of 14 March 2017 Dr Martin, a forensic psychiatrist, considered that the accused’s fall was significant in terms of his current mental illness. In particular, Dr Martin expressed the view (at page 11 of his report) that the injuries the accused suffered, along with other matters, would have rendered him vulnerable in terms of his ability to control his behaviour.

8. In addition, Dr Kerri Eagle, who provided a report at the request of the Director of Public Prosecutions dated 9 August 2017, observed (at paragraph 91) that it was possible that the accused had developed a cognitive impairment as a consequence of the head injury that he suffered on that occasion.

The accused’s substance abuse disorder

9. There is evidence of the accused having developed a substance abuse disorder over a number of years. That disorder was referred to by Dr Eagle in her report as one involving stimulants, cannabis and alcohol. Dr Eagle was of the view that the accused had likely used illicit substances in association with his peers, and in order to cope with emotional and psychiatric symptoms.

10. Dr Eagle expressed the view that the accused’s use of illicit substances was likely to have significantly exacerbated what she ultimately found to be a chronic psychotic illness. She was also of the view that the accused’s substance abuse disorder played a role in precipitating relapses and reducing the effectiveness of treatment which was recommended for, and administered to the accused.

The accused’s persecutory beliefs

11. There is evidence within the bundle tendered by the Crown that in the point leading up to Ms Slessor’s death, the accused suffered from what might be described as persecutory beliefs. These beliefs appear to arise out of a previous, but since fractured, friendship with a Mr Oglesby. The evidence establishes that the accused had (inter alia) a perception of being followed by Mr Oglesby and members of his family. I should record the fact that such an allegation is denied by Mr Oglesby.

The accused’s previous hospital admissions

12. There is evidence that in 2009 and 2010 the accused was admitted on two separate occasions to the Bloomfield Mental Health Unit. He was found on those occasions to be suffering from (inter alia) paranoia and persecutory delusions.

The circumstances of the offending

13. The agreed facts which have been tendered include the following statements:

1. The accused is the son of the Vivienne Slessor.

2. Ms Slessor lived at 3 Little Underwood Street, Forbes.

3. The accused lived there with her, no one else lived at that home.

4. Ms Slessor was born on 8 September, 1956 and was aged 59 years at her death on 19 August 2016.

5. At 6.15am on 19 August, 2016, the accused telephoned 000 from a telephone box near the railway station in Union Street, Forbes.

6. He told the operator that he had killed his mother in Underwood Street, Forbes, identifying himself and his mother by name. He was then aged 28 years.

7. Police attended from the 24 hour Parkes Police Station as the Forbes Police Station was not open at that hour.

8. Attending Police saw the accused on the road near a McDonalds restaurant. The accused put his hands up and confirmed, when asked, that he was Alex Briggs.

9. Police asked him if he had killed his mother and he admitted that he had. However Police noticed blood on his clothing and asked whose it was and he replied, “My mother’s”.

10. They further asked him what happened and he replied that he had his mother killed by hitting her over the head with a pair of bolt cutters. He confirmed that she was dead. When asked why he answered with words to the effect “the voices in my head”.

11. The accused, then under arrest, accompanied the Police to the home and pointed out his mother’s bedroom in which Police saw the deceased laying on her stomach with what appeared to be significant head injuries.

12. At the Forbes Police Station on a hand held recorder operated by Det. Sergeant Steven Howard, before the intended formal interview, and after caution, the accused was asked if he knew why he was there and his reply was “I think I killed my mother”. He admitted that he had consumed 4 or 5 Tooheys Extra Dry beers the previous night and had been wearing a “fentanyl” patch which he said had been prescribed for neck and back pain. He also said that he was taking another prescribed drug, “Targon”.

13. The accused briefly participated in an ERISP on 19 August 2016, noting his “head was spinning”.

14. The post mortem report found that the deceased has suffered “blunt force head injuries” causing her death. There were no other contributing factors cited for her death.

15. Later analysis found both the deceased’s and the accused’s genetic material to a high degree of probability upon the bolt cutters.

14. Those agreed facts should be supplemented by the references to the evidence.

15. In the course of the 000 call the following exchange took place between the accused and the operator:

Operator: Union Street is it okay just let me look that up on the map. So we’ve got Forbes Railway Station your (sic) saying it’s off Union Street there, so ahm okay I can see that on the map and why do you need police to come there?

Accused: Ahm, I’ve just killed my mother…

Operator: You’ve just killed your mother..?

Accused: Yes

Operator: And where is your mother?

Accused: At her house in Little Underwood Street.

16. The agreed facts make reference to conversations between investigating police and the accused following his apprehension. One of those conversations took place between Constable Mylott and the accused in the following terms:

Constable Mylott: You killed your mother?

Accused: Yes.

Constable Mylott: Whose blood is it on your shirt?

Accused: My mother’s.

17. A further conversation took place between Senior Constable Johansson and the accused which included the following:

Senior Constable Johansson: So tell me what happened?

Accused: I killed my mum.

Senior Constable Johansson: How?

Accused: I hit her over the head with a pair of bolt cutters.

Senior Constable Johansson: And is she dead?

Accused: Yes.

…

Senior Constable Johansson: Why did you do it?

Accused: The voices.

Senior Constable Johansson: Voices?

Accused: Yeah in my head.

18. A crime scene was subsequently established at Ms Slessor’s premises. When police entered the premises they found her lying face down on her bedroom floor, partially naked from the waist down. There was obvious trauma to her face and head, and a set of bolt cutters was located next to her body. Crime scene investigators noted blood spatter across the bedroom wall. There was also blood along the hallway carpet floor. The deceased was lying on the ground next to the bed. The area of carpet over which her head was lying appeared to be blood stained. There was a pool of blood on the bed next to the pillow.

19. The agreed facts make reference to the cause of Ms Slessor’s death. That cause is documented in a joint report of Dr Allan Cala, a senior staff specialist in forensic pathology and Dr Rexson Tse, a forensic pathology registrar. The report records, as the direct cause of Ms Slessor’s death, blunt force head injury. Further details of her head injury appear under the heading “Pathology Summary” (at p.3) which records, amongst other things, Ms Slessor having sustained multiple lacerations to the head and face, a depressed skull fracture, a fracture at the base of the skull and facial fractures.

The medical evidence

20. Upon being taken into custody the accused was assessed by Justice Health. On 2 September 2016 he was observed to be “perplexed” and “thought blocked”. The assessment carried out on that occasion also recorded the following:

[He] reports that he does not recall events leading to committing offence, patient states that he was under the influence of ice at the time.

21. A subsequent assessment was carried out by Dr Hearps, psychiatrist, on 9 September 2016. Dr Hearps recorded his impression that at the time of the death of Ms Slessor, the accused was acting under an amphetamine induced psychotic disorder. Dr Hearps reached a differential diagnosis of a schizophrenic disorder. He confirmed those impressions at a subsequent examination on 23 September 2016.

22. I have previously referred to one of the reports of Dr Martin, psychiatrist. Dr Martin in fact provided three reports at the request of the accused’s solicitor, the first of which is dated 11 October 2016. On that occasion, Dr Martin expressed the view that the accused had a major mental illness of a psychotic nature. He reached a provisional diagnosis of paranoid schizophrenia which he described as a “serious mental condition characterised by psychosis (delusions or hallucinations for instance), of an enduring nature and associated with significant impairment and disability”. Dr Martin recorded that the accused had given him an account of persecutory thoughts in relation to the family of Mr Oglesby, and that he believed that Mr Oglesby’s family were deliberately trying to undermine him.

23. Dr Martin was also of the opinion that it was highly likely that the accused’s experience of psychotic symptoms had been precipitated and exacerbated by lengthy methamphetamine use. He recorded that methamphetamines are well known to precipitate psychosis, and to be associated with paranoid, disinhibited and sometimes violent behaviour. Dr Martin also recorded that mental illness in general is commonly associated with substance abuse and noted that there was a history of the accused engaging in sustained drug and alcohol abuse over many years.

24. Ultimately Dr Martin expressed the following opinion:

In my opinion, it is highly likely that Mr Briggs was psychotic at the time of the alleged offending and in the weeks prior to this. It is my view, that in a general sense, in the context of serious mental disturbance, that his judgement and capacity to control his actions would have been compromised and that he was experiencing persecutory delusions impacting on his behaviour… and was responding to auditory hallucinations. At this stage, my opinion is that there is provisional evidence that in the weeks leading up to the alleged offending he was suffering symptoms of a serious psychotic illness, which would have seriously impacted upon his ability to behave rationally. Were it demonstrated that he had offended as alleged, then I think it is highly probable that the defence of mental illness could be argued, in that the mental disorder would have had a seriously detrimental effect on his capacity to behave rationally.

25. Dr Martin concluded by saying that it would be helpful to have access to further background information to confirm the opinion he had expressed. He also expressed a wish to have the opportunity to re-examine the accused if and when such background information was made available.

26. Dr Martin undertook a second examination of the accused on 14 March 2017. In considering whether or not the accused suffered from a mental illness or illnesses, he confirmed (at p.10 of his report) his opinion that the accused had chronic schizophrenia. He considered this to be a serious mental illness characterised by a chronic vulnerability to psychosis, which he explained meant being out of touch with reality in a way manifested by delusions, hallucinations, thought disorder and disorganised behaviour.

27. Dr Martin thought that if the accused was found to have acted as alleged, it was possible that he was acting out of paranoid delusions, possibly through misidentifying his mother in a highly aroused and agitated state, although he acknowledged that that was hypothetical and somewhat speculative. However from a psychiatric perspective, Dr Martin’s unequivocal opinion was that the accused had a serious mental illness which would be seen as a disease of the mind. He expressed the opinion that the accused was highly disturbed in his thinking and behaviour as a result of an untreated mental illness which had been exacerbated by substance abuse. He said that it was likely that the accused’s judgment would have been significantly and detrimentally impaired at the time of the offending, and that he was experiencing paranoid delusional thinking which was affecting is mood and behaviour. Dr Martin was of the view that it could be argued that the accused’s ability to appreciate the moral wrongfulness of his actions was impaired.

28. Ultimately, Dr Martin expressed the view that it would be open to the accused to argue the defence of mental illness, based on having a diagnosis of major mental illness exacerbated by substance use. He observed that the death of Ms Slessor appeared to have occurred in irrational circumstances, and concluded that in the event that the accused was found to have committed the physical act of killing his mother, this had occurred in the context of what he described as a highly disturbed mental state.

29. Dr Martin then provided a supplementary report of 12 September 2017 after he had had the benefit of being provided with further background material. He concluded that such material supported the proposition that the accused had schizophrenia, exacerbated by a substance abuse disorder, against a background of long-standing behavioural disturbance and impulsivity which was possibly partly associated with the head injury that he sustained in 2000. Dr Martin thought that with the benefit of hindsight it had become apparent that the accused had a developing major mental illness over many years which was not adequately managed, probably because his presentations were attributed to drug use and a personality disorder.

30. Dr Martin expressed the following opinion:

In my view, he was psychotic at the time of the alleged offending. I agree with Dr Eagle’s findings. In short, Mr Briggs has a disease of the mind (schizophrenia). In my opinion, it is highly likely, as per my earlier reports, that his capacity to behave rationally was significantly affected at the time and that he would have had significant defects in capacity to reason, affecting his capacity to appreciate moral wrongfulness. While it is unclear exactly why the alleged offending occurred, I think it highly likely that it occurred in direct association with mental illness manifesting through paranoid delusions, irrational thought processes, hallucinations, mood disturbance and disinhibition. In my opinion, Mr Briggs had the defence of mental illness and partial defence of substantial impairment available to him.

31. I have already made brief reference to the report of Dr Eagle which was provided to the Director of Public Prosecutions on 9 August 2017. Dr Eagle’s report is, to say the least, a most comprehensive one in which she summarised (inter alia) the entirety of the documentary evidence which was provided to her for the purposes of her assessment.

32. Commencing at paragraph 93 of her report, Dr Eagle confirmed a diagnosis of schizophrenia, which she described as a “chronic psychotic disorder” and one which is considered to be a “severe mental illness”. Dr Eagle explained that schizophrenia manifests itself in episodes of psychosis, deterioration and impairment in psychosocial function, and cognitive impairment. She said that it was considered a neurodevelopmental illness which could be exacerbated by the use of illicit substances.

33. In relation to the background information with which she had been provided, Dr Eagle observed (at paragraph 94) that such material indicated that the accused had been experiencing persecutory delusions for a period of time leading up to the offending. She concluded (at paragraph 95):

As a result of Mr Briggs’ disease of the mind he suffered from a defect of reason. It is apparent that at the time of the Index Offence Mr Briggs had continued to experience a persecutory belief that he was being tormented by the Oglesbys. He reported walking the streets believing he was being followed by members of the Oglesby family. He described experiencing auditory hallucinations … and referential ideation... Delusions and auditory hallucinations distort a person’s ability to determine what is real. This can substantially impact on a person’s judgment. Mr Briggs’ judgment appeared to be significantly affected by his persecutory beliefs, as evidenced by his conduct I acting on them.

34. Dr Eagle also concluded (at paragraph 97) that it was probable that at the time of the offending, the accused’s judgment was impaired, to the extent that he was unable to know right from wrong. She expressed the view that his persecutory beliefs caused a distortion of his perception of reality which, in turn, caused him to misinterpret his surroundings. She said that his thought processes were based on a false reality caused by his delusions, and that those delusions were associated with auditory hallucinations which had likely contributed to his preoccupation with being persecuted and tormented.

35. Finally, Dr Eagle said that there was no information to suggest that the accused was unable to know the nature and quality of his act in harming his mother and that in particular he appeared to make admissions immediately following the incident that he had killed her. This, in the opinion of Dr Eagle, suggested that the accused was capable of understanding the nature and quality of his act at the time. However as I have already noted, it was also her opinion that it was probable that the accused’s judgment was impaired by his symptoms to the extent that he was unable to know right from wrong.

The defence of mental illness

36. The medical evidence squarely raises a defence of mental illness, against a background of the other matters to which I have referred. A defence of mental illness is governed by the provisions of s. 38 of the Mental Health (Forensic Provisions) Act1990 (NSW) (“the Act”) which provides for the return of a special verdict in the following terms:

38 Special verdict

(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.

37. In the event that a special verdict is returned pursuant to s. 38 then the provisions of s. 39 apply:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody 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.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.

38. The accused bears the onus of establishing the defence of mental illness on the balance of probabilities: Mizzi v R (1960) 105 CLR 659, [1961] ALR 137; R v Ayoub [1984] 2 NSWLR 511. For the defence to be made out there must be evidence that at the time of committing the relevant act or acts the accused was labouring under such a defect of reason from a disease of the mind as to not know the nature and quality of the act that he was doing, or if he did know it, that he did not know that what he was doing was wrong: R v M’Naghten (1843) 8 ER 718; R v S [1979] 2 NSWLR 1. Counsel for the accused in the present proceedings relied on the second of those two limbs. The relevant test was set out by Dixon J in R v Porter (1933) 55 CLR 182, [1933] HCA 1 at 189-190 in the following terms:

The question is whether he was able to appreciate the wrongfulness of the particular act he was doing at the time. Could this man be said to know in the sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

39. I am satisfied beyond reasonable doubt that the deliberate act of the accused, namely the striking of Ms Slessor with bolt cutters, caused Ms Slessor’s death. The evidence in support of that conclusion is overwhelming. It includes not only the accused’s contemporaneous admissions to police, but also the circumstances in which Ms Slessor was found, the report of the post mortem examination, and the agreed facts.

40. In circumstances where I am so satisfied, I must then determine whether the accused is criminally responsible for that act, or whether he has established on the balance of probabilities that he was mentally ill at the time. If I am satisfied that he has discharged that onus I must enter a verdict of not guilty by reason of mental illness. If I am not satisfied that he has discharged that onus it will become necessary for me to consider whether the Crown has established beyond reasonable doubt that the act of the accused was accompanied by the relevant mental state: R v Minani (2005) 63 NSWLR 490; (2005) NSWCCA 226 at 498 per Hunt AJA (Spigelman CJ and Howie J) agreeing.

41. I have outlined at some length the opinions of Dr Martin and Dr Eagle. Those opinions are consistent in terms of the accused suffering from a mental illness, namely schizophrenia, at the time of his offending. Those opinions are also consistent with the relevant background as I have outlined it, as well as with the opinions formed by Dr Hearps in 2016 after the accused was taken into custody. There has been no challenge, either by the Crown or by counsel for the accused, to the respective opinions of Dr Martin and Dr Eagle. On the contrary, in helpful written and oral submissions from both parties I was, in effect, urged to accept the opinions of those two specialists, between whom there is complete unanimity. It is not open to me to reject those opinions in the absence of some material which might cast some doubt on them: R v Afele [2014] NSWSC 366 at [68] and the authorities cited therein

42. In circumstances where I have no reason to reject those opinions, I am satisfied that at the time at which the accused committed the act which caused the death of Ms Slessor he was suffering from a schizophrenic illness which was productive of the symptoms and sequelae to which Dr Martin and Dr Eagle referred in their respective reports. Such symptoms and sequelae included an adverse effect on the accused’s capacity to behave rationally, a defect in his capacity to reason, paranoid delusions, irrational thought processes, hallucinations and a significant mood disturbance.

43. Adopting the terminology used by Justice Dixon J in Porter, I am satisfied on the balance of probabilities that at that time of committing the act which killed Ms Slessor, the accused did not know that what he was doing was wrong having regard to the everyday standards of reasonable people. I am satisfied that at the time the accused was suffering from delusional thinking, as a consequence of which he was incapable of reasoning about the wrongfulness of his actions. It follows that in all of those circumstances I am satisfied that the onus has been discharged and that the defence of mental illness has been established on the balance of probabilities.

44. It will be necessary for me to make orders giving effect to those findings. However, before doing so, I wish to extend my sympathy and condolences to Ms Slessor’s family, and in particular to her remaining children. Cases of this nature, of themselves, bring considerable grief and sorrow to those who are left behind. Those feelings can only be exacerbated, I am sure, in circumstances where the person responsible for the death of Ms Slessor is in fact a sibling and a son of those who remain. I trust that the reasons that I have given this morning will explain how it is that the law works in a case such as this, and how I have reached my decision in what could only be described as a most tragic case. It is my hope that the conclusion of these proceedings today will enable you to have some small degree of closure, on what I know has been a tragic loss for all of you.

45. I make the following orders:

1. I find the accused Alex John Briggs not guilty of the murder of Vivienne Slessor on 19 August 2016 on the grounds of mental illness.

2. I order that the accused be detained pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre or in such facility as the Mental Health Review Tribunal may determine until he is released by due process of law.

3. I direct the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of these orders and in doing so to provide each of them with

1. a copy of the transcript of the proceedings before me;

2. a copy of the exhibits tendered; and

3. a copy of this judgment.

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Decision last updated: 11 December 2017