R v Brindley

[2014] NSWSC 1274

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Brindley [2014] NSWSC 1274

Hearing dates:

8, 9, 10, 11, 12, 15 September 2014

Decision date:

19 September 2014

Before:

Bellew J

Decision:

1. I find the accused not guilty of the murder of Daryl Jones, also known as Graham Copeland, 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 the orders I have made.

Catchwords:

CRIMINAL LAW - murder - trial by judge alone - where accused and the deceased shared a cell in custody - deceased found dead in cell - circumstantial evidence establishing beyond reasonable doubt that the act of the accused caused the death of the deceased

CRIMINAL LAW - murder - defence of mental illness - unanimous evidence of the availability, to the accused, of the defence of mental illness

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Fleming v R [1999] HCA 68; (1998) 197 CLR 250
Gilham v R [2012] NSWCCA 131
Lazaris v R [2014] NSWCCA 163
Markou v R [2012] NSWCCA 64
Mizzi v R (1960) 105 CLR 659
R v Afele [2014] NSWSC 366
R v Hillier (2007) 228 CLR 618
R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44
R v McNaghton (1843) 8 ER 718
R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490
R v Porter (1933) 55 CLR 182
R v S [1979] 2 NSWLR 1
R v Stables [2014] NSWSC 697
R v Winner (1995) 79 A Crim R 528
Shepherd v R (1990) 170 CLR 573
Taylor v R (1978) 45 FLR 343; 22 ALR 599
Tumanako v R (1992) 64 A Crim R 149
W v R [2014] NSWCCA 110
Zoneff v R [2000] HCA 28; (2000) 200 CLR 234

Category:

Principal judgment

Parties:

Regina - Crown
Brian John Brindley - Accused

Representation:

Counsel:
Ms M Cunneen SC and Mr O Jones - Crown
Mr D Pullinger - Accused
Solicitors:
Director of Public Prosecutions NSW - Crown
Medcalf Grant Lawyers - Accused

File Number(s):

2013/140853

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 8 September 2014 Brian John Brindley ("the accused") pleaded not guilty to an indictment in the following terms:

"Between 31 August 2012 and 1 September 2012, at Silverwater in the State of New South Wales, he did murder Daryl Jones also known as Graham Copeland".

1. The alleged offending is contrary to s. 18 of the Crimes Act 1900.

1. The accused had earlier made an application pursuant to s. 132A of the Criminal Procedure Act 1986 ("the CPA") for the trial to proceed before me without a jury. The Crown consented to that application.

AN OVERVIEW OF THE CROWN CASE

1. On Thursday 30 August 2012, whilst in custody at the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater awaiting sentence on an unrelated matter, the accused was moved to share cell 407 with Daryl Jones ("the deceased"). The cell was located in a Pod known as the Hamden Pod. An intercom system was operative in the cell through which an inmate could contact Corrective Services officers in the event of an emergency.

1. In the early hours of 1 September 2012 noises were heard by inmates housed in cells within the Pod. At some time between about 2:00 am and 2:30am a "knock-up" (i.e. an emergency) call was received from the accused in cell 407. A number of officers made their way to the cell and found the deceased lying on a bed. A ligature constructed from a length of white material was knotted tightly around his neck but was unconnected to any hanging point within the cell.

1. One of the officers removed the ligature. The deceased was found to have no pulse. CPR was performed by nursing staff for approximately 10 minutes, at which time further attempts were deemed futile.

1. Dr Szentmariay, a Forensic Pathologist, visited the scene following which he conducted a post mortem examination of the deceased. He found that the cause of the deceased's death was neck compression. He also identified a number of other injuries to the deceased which he considered were of recent origin, and were the result of the application of blunt force.

1. It is the Crown case that the accused caused the death of the deceased by strangling him, not with the ligature which was found around his neck, but with an electrical cord detached from a television set which was in the cell. The Crown alleges that the accused then "staged" the deceased's death by (inter alia) constructing a ligature from a torn up pillow case and tying it around the deceased's neck, so as to give the impression that the deceased had taken his own life. The Crown accepts there is expert psychiatric evidence which establishes that the defence of mental illness is available to the accused.

AN OVERVIEW OF THE ACCUSED'S CASE

1. The accused denies that he caused the death of the deceased. In particular, and given that the Crown case is entirely circumstantial, he has submitted through his counsel that the Crown has failed to exclude, as a reasonable possibility, that the deceased brought about his own death, either deliberately or accidentally.

THE EVIDENCE

The deceased's initial psychological assessment in custody

1. On 22 July 2012, after he had arrived at the MRRC, the deceased was assessed by Ann Parker, a Programs Officer employed by the Department of Corrective Services, for the purposes of determining whether he was at risk of self-harm (T39 L20). Ms Parker described the deceased as being "bewildered" at that time, and she determined that he was possibly developmentally delayed (T39 L43-45). Because of that developmental delay, Ms Parker concluded that the deceased was vulnerable to harm from others (T39 L47). However she had no concern at all about the deceased being at risk of self-harm (T39 L49).

1. Notwithstanding that absence of concern, the deceased was nevertheless referred for assessment by a Risk Intervention Team (RIT) of which Steven Tienstra was a member. Ms Parker explained (T42 L26-38) that such an assessment was undertaken when a person was regarded as being at risk of self-harm. Accordingly, the fact of the referral does not sit entirely comfortably with Ms Parker's assessment that there was no such risk.

1. In any event, the RIT assessment was conducted on 24 July 2012, 2 days after that of Ms Parker. A subsequent report prepared by Mr Tienstra (Ex D) included the following observations:

"During the interview Jones was questioned in regard to if he was at risk of self-harm. Jones guaranteed his own safety ... he appeared in a good mood and stated that he was eating and sleeping well. It was noted that he presented as having possible mental health issues and was referred to Psychology for coping and DD assessment.

... The RIT considered him at that time as low risk of suicide and self-harm. The interview terminated at about 10:30am and Jones was cleared from the RIT and made a normal cell placement, with a referral to Psychology."

The accused's mental state

1. The accused was found to be drug dependent in 2005 (Ex 1 at p. 5.2-5.6). He was diagnosed with paranoid schizophrenia in 2006/2007 (Ex W1 at p. 6.7; Ex 1 at p. 3.2).

1. In the period leading up to August/September 2012 the accused was held on remand at the MRRC awaiting sentence on another matter (T215 L15-18). When originally arrested and taken into custody (which appears to have been in about June 2012 - Ex. 1 at p. 4.2) he presented as psychotic and spent some period in the Mental Health Screening Unit at the MRRC (Ex 1 at p. 4.3). He was prescribed Seroquel (also known as Quetapine), an anti-psychotic drug (T30 L45-T31 L11). However during the time leading up to the deceased's death, the accused had not been taking that medication regularly, if at all (T 34 L8-10; T215 L21-25; T220 L27-28). Whilst on remand, and specifically at the time of the deceased's death, the accused's mental state was such that he believed that everybody, including the deceased, was trying to kill him (T230 L37-47; Ex 1 at p 4.8).

The accused's application for non-association

1. On 1 August 2012 the accused made a written application that he be housed in an area which did not require him to associate with other inmates (Ex C; Ex. 4; T43 L38-45). The accused gave evidence (T215 L35-43; T228 L23-39; T231 L27-41) that he made that application because of a perceived "stigma" attached to inmates who associated with sex offenders, and not because he held an adverse view of people who were charged with those kinds of offences. The fact that there was a stigma of the kind of which the accused spoke was confirmed by Assistant Superintendent Gill, who said that those who associated with sex offenders were "looked down upon" by other inmates (T47 L4-7).

1. The accused's application was discussed between Assistant Superintendents Gill and Cullen and then came before a reception committee of which Mr Gill was a member. Ultimately, the application was refused because in Mr Gill's view (T45 L44-47) there was no proper basis upon which to grant it. Mr Gill described the accused as being "paranoid" about the matters he had raised in support of the application, and recommended that he be placed separately from other inmates for a few days before an appropriate placement was made for him (T44 L8-11). Mr Gill placed the accused in a non-association area for a period of time and monitored his progress (T47 L44-49). The accused then had discussions with Mr Cullen about his placement (Ex C). Those discussions culminated in the accused being moved on to share cell 407 with the deceased on 30 August 2012.

The accused's transfer to cell 407

1. The accused transferred to cell 407 at about 2:00pm on 30 August 2012, at which time he first met the deceased (T 216 L 12-18). He said that he and the deceased "got alone fine" and "read the Bible a lot" (T216 L 19) but they did not discuss the reasons for their respective incarceration.

1. Cell 407 was located in a section of the MRRC known as "H Pod" or "Hamden Pod". The Pod was located in an enclosed wing of the MRRC. It had two tiers of cells, adjacent to which there was a large vacant common area for inmates (T97 L7-9; Ex G; Ex O).

1. The door to cell 407 was located on the western wall of the cell, where it met with the northern wall. The cell itself was a single room with a window (over which there was a sliding shutter) on the southern wall. It had two single beds along with a shower and a toilet (T98 L8-14; Ex L).

The deceased's application for bail

1. On either 29 or 30 August 2012 (the precise date being immaterial for present purposes) an application for bail by the deceased was listed before this Court. The application did not proceed (T134 L9).

1. Peter Clark, another inmate, was with the deceased at the time as he also had an application for bail which was listed on the same day. Mr Clark described the deceased as being "a little disappointed" about what had transpired with his application (T134 L9; L19-20). However, he said that in his observation the deceased remained in "reasonably good spirits" (T143 L10-11).

The psychological assessment of the deceased by Ms Caon

1. On the afternoon of 31 August 2012 the deceased was joined in his cell by another inmate, Maxwell Jones (to whom he was not related). Mr Jones gave evidence (commencing at T126 L42) that there was another person in the cell at the time who was discussing the Bible with the deceased. Mr Jones could not identify that person. Although unable to identify Mr Jones, the accused gave evidence (T219 L30-40) of being joined by another inmate in cell 407 on the afternoon of 31 August. I am satisfied that Mr Jones, the accused and the deceased were all present in the cell at that time.

1. Prior to his bail application, the deceased had expressed some confidence that he would be released from custody. A psychological "follow up" was recommended to take place in the event that he was not released (Ex F). It was in these circumstances that at some time shortly after 2:00 pm on 31 August, when the accused and Mr Jones were with him in the cell, the deceased left to attend an appointment for an interview with Alita Caon, a Forensic Psychologist employed at the MRRC (T127 L18). Ms Caon explained that the purpose of the interview was to follow up a referral from a colleague to assess the deceased's level of coping with, and adjustment to, being held in custody (T54 L31-39). I infer from Ex F that it was a Mr Stephen Barracosa who recommended the follow up in the event that the deceased was not released on bail as he had expected. However, Ms Caon rejected the suggestion that prior to interviewing the deceased she had anticipated that he may not be coping due to the fact that he had not been released. According to Ms Caon, she was not anticipating anything (T57 L13-14).

1. Ms Caon said that the deceased presented in a "firm positive mood" and was "highly interactive" at the time of the interview (T54 L49-50). He had no visible injuries, (T55 L6-8), he did not appear to be, and not did complain of being, in any pain, and he did not give the appearance of having difficulty moving about (T55 L13-17; T55 L34-35). Ms Caon found that the deceased was struggling with being separated from his elderly mother (T57 L23-27) but when she asked him directly whether he was having any thoughts of self-harm he said that he was not. He guaranteed to Ms Caon that he would not attempt self-harm. Ms Caon accepted that guarantee. No suggestion was made to Ms Caon such acceptance was in any way unsound (T55 L24-27).

1. Following her assessment Ms Caon compiled a case note report, part of which is contained in Ex F. She described the deceased's presentation as follows:

"He presented as calm and polite and was cooperative with the interview process. He sat with a relaxed posture and was easy to engage. He provided good eye contact and responded appropriately to questions asked, demonstrating logical and linear thought patterns. Inmate's affect was mostly reactive and he was able to take in humour throughout the interview. He was teary at times when discussing his separation from his mother and pets but was aptly able to manage his emotions. Inmate advised he was maintaining his sleep and appetite without difficulty. He was oriented to time, place and person. No significant deficits were observed in his memory or ability to concentrate. Inmate presented as low cognitive functioning and has already been referred to SDS for assessment."

1. Ms Caon noted (Ex F) that the deceased had said that his principal difficulty was being housed with a cellmate who smoked. However, he reported that he was mixing well with other inmates and he denied fears for his safety or thoughts to harm others. The fact that the deceased was mixing well with other inmates is generally supported by CCTV footage (Ex O and P) taken on the morning of 30 August 2012 as well as by the evidence of the other inmates who were called by the Crown.

1. Ms Caon further noted:

"Inmate stated he would cope with remaining in custody whilst awaiting his next court date but that he was struggling with separation from his mother. He stated he "would be devastated" if not released from court but that he could guarantee he would not self-harm or attempt suicide."

1. Ms Caon's general impression following her interview with the deceased was further expressed (Ex F) in the following terms:

"Coping in custody at this time. Emotional regarding separation from mother but able to manage emotions appropriately. Stable in mental state. Guaranteed his own safety and was assessed as low immediate risk of self-harm or suicide at completion of interview."

1. Following the deceased's death, Ms Caon compiled two further documents which also form part of Ex F. The first, dated 3 September 2012, includes the following observations:

"At no time did Daryl suggest he was experiencing any thought to self-harm or suicide. When asked directly, he strongly denied such thoughts and guaranteed his own safety citing his mother as his main protective factor.

Daryl did not report any symptoms of mental illness at the time of the interview and none were observed. He presented as stable in mental state.

...

At completion of my interview with Daryl, my impression of him was that he was a first time in custody male who was experiencing appropriate adjustment issues and emotionality regarding his separation from his mother. I assessed him to be at low risk of self-harm or suicide. I referred for follow-up for ongoing monitoring of his ability to cope and general supportive counselling".

1. The second document, dated 5 September 2012, confirms that the deceased was returned to his cell following Ms Caon's interview. Although the accused said that he could not recall Mr Jones still being in the cell when the deceased returned (T230 L22), I am satisfied that this was the case. According to Mr Jones (T127 L24) the deceased:

"...said he went very good and he was quite pleased about the lady that interviewed him on the psychiatric part. He was quite happy about it".

1. Mr Jones' observations of the deceased's demeanour upon his return were at odds with those of the accused. According to the accused, when the deceased returned he "didn't seem exactly the same", "seemed a bit down" (T223 L7-10; T251 L47), "was not talking much at all" (T223 L17), "seemed quieter ... and wasn't really speaking" (T230 L12-13) and was "very quiet" (T252 L10).

1. Mr Jones is an elderly man who is clearly not in good health. I observed him carefully when giving evidence. There were occasions on which he was argumentative, and on which he engaged in personal exchanges with counsel rather than directing himself to the particular question that was asked of him. However notwithstanding those matters, I am satisfied that his evidence regarding the deceased's demeanour upon his return from his interview with Ms Caon was accurate and truthful. I am fortified in that view by the fact that Mr Jones was not cross-examined about that issue, as well as by the fact that his observations of the deceased were generally consistent with those of Ms Caon which were made only a short time before.

1. Before leaving this issue one further matter should be noted. Mr Jones gave evidence that he had "done psychology" (T126 L6). He said when cross-examined (T131 L38-40) that he observed, bearing in mind his "training in psychology", that the deceased was depressed when he first met him (which appears to have been shortly after the deceased arrived in custody in July 2012: T125 L31-32). The nature and extent of Mr Jones' training or experience in psychology is not known. Beyond the matters I have noted, the issue was not further pursued. Even if Mr Jones was in a position to assess the deceased's state of mind, there was no suggestion by Ms Caon that the deceased was exhibiting any sign of depression when she assessed him on 31 August. In fact, her evidence is very much to the contrary.

The accused's refusal of medication

1. At about 7:00pm on 31 August 2012 Lauren Lennon, a Registered Nurse employed by the Department of Corrective Services, attended cell 407 to dispense the accused's anti-psychotic medication (T30 L36-49). She said that she spoke with the accused who refused the medication, saying that he did not like its side effects (T34 L1-3). She explained that the accused was at liberty to refuse his medication if he wished to do so (T31 L17-18).

1. By reference to a sketch plan of the cell (Ex B) which she provided to the police when making her statement in March 2013, Ms Lennon gave evidence that she saw the deceased (designated by the words "cell mate" in Ex B) lying with the covers over him in the bed which was located towards what she described as the left hand corner of the cell (T33 L40-41). She described the deceased as being "alert and smiling" at that time and assumed he was "tucked in for the night" (T33 L40-48).

1. Exhibit B shows what is described as a "wall" located on the right hand side of the cell door. Ms Lennon explained (T37 L4-7) that this "wall" obstructed her view to the immediate right upon entering the cell. It is clear from Ex A that what is present on the right hand side of the cell door is not properly described as a wall. It is in fact a shower curtain, although it does appear to obstruct the view to the right in the way in which Ms Lennon described. Ms Lennon did not agree that what was located in that position was a shower curtain, and was adamant that it was something more solid (T37 L14-21).

1. Ms Lennon denied that her recollection of the deceased lying in the bed on the left hand side of the cell was not accurate, and denied having "transposed" the positions in which he had seen the deceased and the accused when she entered the cell (T37 L37-46). She explained (T37 L50) that she remembered this aspect of the matter vividly because she had heard about the death of the deceased on the following morning. At the same time, it is apparent that Ms Lennon did not make her statement until 19 March 2013, more than 6 months later (T35 L21-23).

The early hours of 1 September 2012

1. The Crown called evidence from a number of persons who were inmates at the MRRC at the time of the deceased's death. Those inmates were housed in cells within the same Pod as the deceased. They gave evidence of hearing disturbances coming from the direction of the cell shared by the deceased and the accused in the early hours of 1 September 2012.

1. Christopher Roffey gave evidence that during the night of 31 August/1 September 2012 he thought he had heard the word "help" (T60 L15). He said that the word was not quite "yelled", that he "wondered" whether he had heard it, but that he was "pretty sure" that he did (T60 L13-20). He said that it was "definitely a male voice" although not one that he recognised (T60 L25-29). The terms in which Mr Roffey gave evidence of hearing these noises were somewhat equivocal. However, his evidence is supported by that of another inmate, James Dillon.

1. Mr Dillon occupied cell 411. He knew the deceased (T63 L28-33) and described him as being "a reasonably quiet fellow" who "just more or less kept to himself most of the time" (T63 L42-45). Mr Dillon said that he was watching television at about 12:30am on 1 September 2012 and heard someone crying "help me". When he went to the door of the cell to determine whether he could see what was happening he heard the words "help me" again (T64 L17-20). He later explained that he in fact heard the words "help me" about 4 or 5 times. He said that it was "definitely" the deceased who was calling out on each of those occasions (T64 L33-41). Mr Dillon also said that the direction from which he had heard these words was to the right of his cell, consistent with the position of cell 407 in which the deceased was housed (T64 L21; T65 L23-40; T67 L11-14).

1. Mr Dillon agreed (T66 L11 and following) that when he was first spoken to by the police he said that he had heard nothing. His explanation for that was that he "didn't really want to get involved" at that time (T66 L11-13). He also agreed that in the days following, the death of the deceased was the subject of discussion amongst inmates in the Pod (T66 L34-40), although he was not asked whether he had actually participated in any discussion(s) about what had occurred.

1. There is no evidence of when Mr Dillon made a statement to the police, although statements were taken from other inmates on 5 September. It is reasonable to infer that Mr Dillon's reluctance to tell police what he had heard stemmed from some fear of threat to his personal safety if he spoke with them. Such fears are not uncommonly held by persons in custody (T74 L34-39).

1. Thomas Morris was housed in cell 413 along with Peter Turner. Mr Morris described hearing "sobbing" coming from another cell at about 12:30am on 1 September (T112 L36-44). He also said that at about 2:15am he was lying awake when he heard somebody call out loudly "Daryl, Daryl" followed by "oh no, what have you done?". At that point Mr Morris got out of bed to try to see what was happening. As he did so he heard someone say "He's hung himself. I can't get him down. He's too heavy" (T113 L1-5). According to Mr Morris the sobbing had come from the right of his cell, consistent with the position of cell 407 (Ex G). Mr Morris agreed that when he first spoke to the police he had not mentioned hearing anybody sobbing (T114 L9) but said that he had mentioned hearing a reference to someone hanging themselves (T114 L12). He also agreed that he had told the police that he had heard "yelling" earlier in the evening and that this was probably a reference to the sobbing about which he had given evidence (T114 L16-22). Nothing was put to Mr Morris regarding discussions amongst inmates between the time at which he first spoke to the police and the time at which he made his statement.

1. Mr Turner, who was Mr Morris' cell mate, was also acquainted with the deceased and described him as "pretty placid" (T120 L22). Mr Turner said that at about 12.30 am on 1 September he heard "uncontrollable" crying (T121 L7-21) coming from the right of his cell (T121 L44-48) which, as I have noted, was consistent with the position of cell 407. He also said that at about 2:30am he heard the alarm sound and also heard the words "help me help me...I can't get it off his neck...I can't lift him... what have you done to yourself Daryl? What have you done to yourself Daryl?".

1. Mr Turner agreed (T123 L1-5) that he had said nothing to the police about hearing sobbing when he first spoke to them. He agreed (T123 L7-9) that the death of the deceased was a topic of conversation in and around the Pod but said that this was not until after he had made his statement of 5 September 2012.

1. Simon Marks was housed in cell 412. To the extent that he knew the deceased he thought him a "very placid" type of man (T71 L19) who was "basically jovial...pleasant, well mannered, quiet" (T71 L33-34). Mr Marks said that on the evening of 31 August 2012 he was watching the television news at midnight. Shortly afterwards, he described hearing a "commotion within the wing". He described "some very disturbing unpleasant sounds of a person obviously in distress or being hurt or whatever" (T71 L47 - T72 L8), akin to "someone (having) stuck something into a pig and it was squealing...that really blood curdling type of sound" (T72 L10-13). He said that the noise continued for a couple of minutes after which he heard someone say:

"Daryl, what have you done? What have you done mate?" (T72 L15-17).

1. Mr Marks agreed that when he made a statement to the police he had said that he had heard some yelling around 2:30am with a person saying:

"Help me. Help me. I can't get him down" (T73 L22-24).

1. He agreed (T73 L32) that he had not told the police about hearing anything earlier than 2:30am and he explained that his recollection at the time was probably an error. He said that he clearly recalled that it was at midnight when he was watching the television news. When it was suggested to him that he told the police only that he heard somebody yelling at about 2:30am in the morning, Mr Marks replied (T73 L41-43):

"Yeah, that was a guess at the time but I clearly heard the yelling. I clearly heard someone in distress."

1. Mr Marks explained (T74 L34-39) that it was easier for him to remember and recollect things now that he was not in custody and thus not in a place where he sometimes felt fearful and worried about his own safety. He explained that in custody there was a tendency not to recall events as quickly, or perhaps a tendency to be unwilling to recall such events because of what he described as the "fear and the security factor for yourself" (T74 L34-39).

1. Leslie Ogston was also an inmate at the MRRC at the time. He could not recall what cell he occupied but described it (T76 L27) as "about two cells up from the cell we are talking about". He said that cell 409 "sounded familiar" as being the cell which he occupied at the time (T76 L33-34). As set out below, another inmate, Paul Katralis, gave evidence that he and Mr Ogston occupied cell 409.

1. Mr Ogston recalled hearing "odd noises" at about 11:00pm on the evening of 31 August. He was unable to describe their nature (T76 L38-43) although he said that they were coming from a person and were in the nature of "a voice, moan" although they were "really hard to describe" (T77 L5-9). Mr Ogston said (commencing at T77 L18) that shortly before 2:30am on 1 September 2012 he heard somebody brushing their teeth and then approximately 5 or 10 minutes later heard the distress call. He thought that this was at about 2:35am (T77 L49).

1. Timothy Hordern was an inmate at the MRRC and occupied cell 429 which was on the upper landing (T81 L18-22). He was acquainted with the deceased (T81 L50) and described him (T82 L7-12) as "a well-mannered guy" who "spoke a lot about his mother as well (and) about wanting to get out to take care of his mother". Mr Hordern described the deceased as a "reasonably happy" person (T82 L15).

1. Mr Hordern said that he had gone to bed around 10:30pm or 11:00pm on 31 August 2012 (T85 L20) and was later awoken from his sleep by "what sounded like yelling, possibly an argument going on" (T85 L25-29). He described hearing what "sounded like a younger bloke saying "Get it off me cunt, get it off me" (T85 L31-32). He said that he did not recognise the voice but that it sounded like that of a younger and not an older man (T85 L35-36). He thought that several minutes elapsed between hearing those words and hearing the alarm (T86 L16-19). Bearing in mind his description of the voice, Mr Hordern expressly conceded (T86 L41-43) that the deceased was not somebody that he would describe as a "younger man". In these circumstances, little weight can be attributed to his evidence.

1. Maxwell Jones, to whom I previously referred, said that he had come to know the deceased and had helped him "out" of his depression (T125 L25-29). He described the deceased (T125 L38 and following) as a "funny type of guy but a great guy at the same time". He also said (T126 L13-15) he was "happy, and the boys liked him and there was nothing there to indicate that he was going to knock himself off or cark himself as we say".

1. Mr Jones said that during the course of the evening of 31 August he heard a "scream" and that he "knew straight away it was Daryl" (T128 L16-19). At that time Mr Jones was housed two cells away from the deceased (T128 L25-26; T129 L47-49). It was not suggested to Mr Jones that his evidence of what he heard was affected by any discussions which may have taken place within the Pod after the deceased's death.

1. Peter Clark was housed in an upstairs cell, 442. He said that during the course of the night he heard "a bit of commotion outside" followed by "a little bit more of a ruckus" (T134 L46-48) coming from the direction of the deceased's cell (T134 L50 - T135 L1). When asked to further describe the "ruckus" Mr Clark said that he had heard "muffled sounds as if there was shuffling" and "maybe a bit of thumping going on" (T135 L5-6). He thought that this was around 2:00am (T135 L15).

1. Mr Clark did not agree that the acoustics of the Pod made it difficult to precisely determine the location from which a particular sound might have come. He was "sure" that the noises that he heard were coming from the vicinity of the deceased's cell (T135 L49-50). Mr Clark was not asked about any discussions having taken place within the Pod following the deceased's death.

1. Tony Piscatelli was housed in cell 410. He recalled that at about 12:30am on 1 September he heard someone yelling out "don't hurt me, don't hurt me" or words to that effect (T137 L38). He later heard a voice across the intercom saying words to the effect "help, help, help, it's too tight, I can't get it off" (T137 L42-48). He agreed (T138 L40) that he did not think much of what he had heard because disturbances like that were a regular occurrence in custody. It was not suggested to Mr Piscatelli that his evidence had been influenced by any discussions within the Pod.

1. Paul Katralis occupied cell 409. Mr Katralis said that he had met the deceased and that he would describe him as "happy" (T139 L29). He recalled that on the night of 31 August 2012 his cell mate Leslie Ogston turned down the television a couple of times because noises could be heard. Mr Katralis described those noises as sounding "like a table being dragged across the floor" (T139 L42). He said that the noise was not coming from above his cell but was "in the vicinity,...a couple of cells away" from that which he occupied (T139 L49). He said that he had heard the dragging sounds for about five seconds or thereabouts (T140 L12).

1. Mr Katralis agreed that when he was spoken to by the police on the morning of 1 September 2012 he had not mentioned hearing any dragging noise (T141 L1-15). He also agreed (T141 L19-26) that in the following days the deceased's death was the subject of conversation in and around the Pod and that there was speculation as to how he had died. However, Mr Katralis maintained (T141 L29-35) that he did not participate in any of those conversations.

The "knock-up" call

1. Shortly after 2:00am on 1 September 2012 Corrective Services Officers received an emergency call (referred to as a "knock up" call) from cell 407. There is no issue that it was the accused who made that call. Jason Baptista, the Corrective Services Officer who received it, said that the accused had said words to the effect that his cellmate had "hung himself" (T6 L34-35; T8 L26-28). Officer Baptista described the accused as sounding "frantic" and "in a panic" (T8 L18-20).

The discovery of the deceased

1. When the knock-up call was received, a number of Corrective Services officers immediately made their way to cell 407. They included officers Baptista, Loftus, McDougal and Trench. Officer McDougal recorded what subsequently took place (Ex A).

1. Upon arrival at cell 407, Officer Loftus opened the aperture in the door and saw the accused standing in the cell. He directed him to sit down and then entered the cell with the other officers (T9 L35-38). The accused was sitting on the bed to the left, i.e. the bed which Ms Lennon said was occupied by the deceased on the previous evening. The deceased was lying on the bed to the right with his head at the foot of the bed, facing the wall (T9 L45-46; Ex A at 00:20).

1. The officers approached the deceased and rolled him over. Mr Loftus described the deceased's face as being "blue" and his appearance as looking "lifeless" (T10 L1-5). The deceased was found to have no pulse but was still warm (Ex A at 1:00).

1. The deceased had white cloth material tied around his neck (T10 L11) which Officer Trench removed with the use of a hook/knife implement known as a "911 tool". Officer Loftus described seeing a knot in the material placed at the back of the deceased's neck (T10 L13-17) as did Officer Trench (commencing at T24 L43). Sergeant Greatorex examined photographs of the knot (Ex T). He found that the loop which was formed by the length of white material was not sufficient to be placed over the average head of a human (T180 L25-27).

1. The deceased was then moved from the bed to the floor of the cell at which time Natalie Apap, a Registered Nurse, attempted CPR. She was assisted by another Nurse, Jailane Sarjeant. After a period of approximately 6-10 minutes, it was determined that the deceased was not responding and that any further attempt at resuscitation would be futile (T27 L15-18).

The attendance of the police

1. Sergeant McMaugh attended the cell at about 4:20am on 1 September 2012 at which time he met with Detective Sergeant Fairfax who informed him of the deceased's death (T96 L43 - T97 L5). According to Sergeant McMaugh (T97 L25 - T98 L1) the following then took place:

"The accused said, 'I woke up and wanted a cup of tea. I tried to wake Daryl for a tea bag and box of matches, but I saw he was purple.' I ripped the blankets off and saw something on his neck. I turned the lights on and tried to get it off but I couldn't. I buzzed up and said something like, 'I think he's dead'.

I said, 'How long have you been in the cell with him?' The accused said, 'I moved in Thursday from Darcy'. I said, 'How had he been over the past week?'

The accused said, 'I've only been here since Thursday. He was stressing over a Court adjournment. He saw the psyche on Friday and wasn't the same from there'.

I said, 'Did you talk about the charges he had?' The accused, 'No, we didn't talk about that'. We mainly talked about the Bible. I was more talkative than he was.

Sergeant Fairfax said, 'You got up for a cup of tea in the middle of the night, is that usual?' The accused said, 'I am up and down all night'. Sergeant Fairfax said, 'Was he awake when you went to bed?' The accused said, 'I can't remember if he was awake. I must have dozed off when I was watching TV.' I said, 'So you've only been with him since Thursday?' The accused said, 'Yeah, he had been in there all the time. His previous cell mate had left'. Sergeant Fairfax said, 'What are you in for?' The accused said, 'Armed robbery'. "

1. Sergeant McMaugh then conducted an examination of the cell and identified the two beds to which I have previously referred (T98 L19-21). By reference to various personal items which were found in the cell, Sergeant McMaugh identified the accused's bed as that on the left and the deceased's bed as that on the right (T98 L37-46; T102 L25-31; T103 L7-14; T103 L42 - T104 L6). That said, the police were obviously not able to reach any view about who may have actually occupied either bed in the period leading up to the deceased's death (T104 L3-6).

The post mortem examination

1. Dr Istvan Szentmariay, a Forensic Pathologist, attended cell 407 following the deceased's death. He explained (commencing at T144 L13) that one of the reasons for his attendance was to determine the presence of any object which may have been used as a ligature. He did not observe any point in the cell to which any ligature may have been able to be affixed (T144 L1-3). He did however, observe the item which had been removed from the deceased's neck by Officer Trench and he specifically recalled the presence of an electrical cord in the cell (T146 L31).

1. At the subsequent post mortem examination, Dr Szentmariay concluded that the cause of the deceased's death was neck compression, which had in turn caused a cessation of blood circulation to the brain and a loss of consciousness (T144 L20-32). He identified a discontinuous ligature mark on the deceased's neck (T144 L41; Ex Q) and explained (commencing at T145 L 22) that this mark reflected the fact that force was not applied to the deceased in a consistent fashion. Dr Szentmariay said (T145 L30-34) that in the "classic appearance" of somebody who had taken his or her own life by hanging, any ligature mark would be expected to appear continuously around the deceased person's neck. The mark which was found on the deceased's neck was therefore not consistent with death by hanging.

1. Dr Szentmariay also explained (commencing at T145 L43) that in the vast majority of hanging cases, any ligature mark would be expected to extend around the anterior neck, above the level of the thyroid prominence, and would have an upward tendency on both sides of the neck. He explained (at T146 L13-17) that in the present case the ligature mark on the deceased's neck was in fact 1cm below the level of the thyroid prominence. He regarded this as a further circumstance which was inconsistent with the deceased's death having been caused by hanging.

1. Dr Szentmariay also found (T146 L28-34) that the pattern of the mark found on the deceased's neck was not consistent with neck compression having been caused by the use of the cloth ligature which was removed from the deceased by Officer Trench. He said however (T146 L30-40) that the smooth surface of an electrical cord, and its width, were consistent with the pattern of the mark found on the deceased's neck.

1. Dr Szentmariay agreed when cross-examined (T156 L50 - T157 L5; T16 L24-T162 L13) that prior to giving evidence he had made no reference to the presence of an electrical cord in cell 407, nor had he suggested that the use of such a cord had brought about the deceased's death. There is certainly no reference to such matters in Dr Szentmariay's original report (Ex R) although that is explained, to some extent, by his evidence of the process by which that report was prepared (T162 L17-32).

1. Moreover, and quite apart from Dr Szentmariay's recollection (T146 L31) there is independent evidence of the presence of a television in cell 407 at the time of the deceased's death, as well as the fact that such television had a power cord which was detachable (Ex L, Photograph 4). In these circumstances, the fact that Dr Szentmariay's evidence about the use of a power cord to strangle the deceased did not emerge until he gave evidence is not, in my view, a reason to reject his opinions. This is particularly so in circumstances where the mark on the deceased's neck is, as Dr Szentmariay explained, consistent with the application of force by the use of such a cord (T 155 L8-32).

1. Further, and quite apart from the ligature mark around the deceased's neck, Dr Szentmariay gave evidence that when carrying out the post mortem examination, he identified a number of other injuries having been inflicted upon the deceased (Ex S).

1. Firstly, he identified (commencing at T148 L15) a number of discontinuous vertical linear abrasions across the anterior surface of the deceased's neck which he considered (T148 L25-27) were fingernail marks. He expressed the view that such marks were atypical of hanging cases, but typical of cases of strangulation. He explained that it was an expected reaction for a victim of strangulation to try and remove the ligature from the neck and in doing so, to leave abrasions of that kind (T148 L42-47). In light of this evidence, it is noteworthy that fingernail clippings taken from the deceased revealed the presence of blood underneath them (T183 L45 - T184 L17).

1. Secondly, Dr Szentmariay found a series of petechial haemorrhages in the area of each of the eyes of the deceased (T148 L49 - T149 L2). He explained that these were atypical of hanging cases (T149 L6-8) because in such cases there was an abrupt cessation of blood to the face which was inconsistent with the mechanism by which petechial haemorrhages developed (T149 L10-16). He also said (T149 L28-29) that haemorrhages of that kind could be caused by a physical struggle.

1. Thirdly, Dr Szentmariay found (T150 L25-26) contusions or bruises in the vicinity of the deceased's left eye. He said that these were the result of the recent application of blunt force to the deceased's body (T150 L24; T152 L16-44).

1. Fourthly, he found two abrasions below the deceased's right eye, accompanied by a soft tissue haemorrhage. These abrasions, he said, were similarly caused by the recent application of blunt force (T150 L28-35); (T153 L4). They measured 0.5 cm and 1 cm respectively (T150 L45-50).

1. Fifthly, he found numerous deep tissue injuries over the deceased's back which were recent and which were, in his view, the result of the application of "considerable force" (T151 L13-47). These injuries included:

(a)   a subcutaneous haemorrhage over the right scapular;

(b)   a similar haemorrhage over the mid back;

(c)   multiple contusions over the lower cervical and upper thoracic vertebrae, the largest of which measured 13cm;

(d)   a 4cm lesion over the left side of the mid-level of the deceased's back; and

(e)   a subcutaneous contusion measuring 9cm across the back aspect of the left upper arm.

1. Sixthly, Dr Szentmariay found a fracture of the deceased's ninth right rib, the fractured ends of which showed haemorrhaging indicating that the injury was recent (T154 L8-39). Although Dr Szentmariay conceded (T158 L41-T159 L11) that in approximately 30% of cases in which CPR is applied fractured ribs are sustained by the victim, he expressed the view (having previously seen Ex A) that the CPR applied to the deceased by Ms Apap was not overly vigorous (T159 L3) and that in any event, the location of the fractured rib was not one in which any force would be applied for the purposes of administering CPR (T154 L17-21). Dr Szentmariay therefore thought it highly unlikely that the application of force associated with CPR would have caused the fractured rib (T154 L23-26).

1. Finally, Dr Szentmariay identified (commencing at T167 L36; Ex S) a series of what he described as "deeper neck injuries" caused by the application of blunt force to the neck. They consisted (commencing at T172 L1) of a number of separate and distinct areas of haemorrhage, the largest of which measured up to 4.3cm. He explained that the presence of such injuries was not at all typical of death by hanging (T173 L25-28) and said that they had not been caused by moving the body of the deceased (T175 L26-28).

The accused's evidence

1. The accused gave evidence in his case and was cross-examined. He explained (commencing at T215 L30) the circumstances in which he made the non-association application to which I have referred, and said that he was transferred to cell 407 on the afternoon of 30 August 2012 at which time he first met the deceased (T216 L12-16). He said (commencing at T216 L18) that upon initially meeting him they talked a great deal about the bible, and got along well. He said that on the night of 30 August 2012 he occupied the bed towards the left hand side of the cell, and the deceased slept in the bed on the right hand side (T217 L17-24).

1. By reference to photographs 5, 6 and 7 of Ex L, the accused identified the television set which was in the cell when he moved in. He said (commencing at T218 L45) that the power cord to the television was detachable, and explained that he was aware of this because he had the same television in his cell at the present time. He maintained (T226 L22-32) that at no time during the night of 31 August, or the early hours of 1 September, was the power cord detached. In fact, he denied being aware at that time that the cord was capable of being detached (T232 L38-40) and said that he had no need to interfere with the television at all (T233 L5-9).

1. The accused gave evidence that Ms Lennon had come to dispense his medication on the evening of 31 August 2012. He said (commencing at T221 L3) that at some stage after watching the television news he went to sleep but could not recall the precise time at which he did so. He said that the deceased was still reading the bible at the time (T221 L12).

1. The accused said that sometime after dozing off he woke up to have a cigarette, at which time he realised he had no matches. He decided to go to the toilet and then asked the deceased if he had any matches (T221 L18-21). The accused then explained that:

"I was thinking once I was awake I was thinking I'd have a cup of tea as well. Daryl had tea bags and he said to me earlier if you want a tea bag just ask me so that was in my mind as well."

1. According to the accused (T221 L39) the television was on when he woke up although he did not pay any attention to what program was showing. The accused then described what happened (commencing at T221 L50):

"Q. Just describe in your own words what happened. You got up, the television was still going, some light coming from it, the cell lights are not on but some light comes from outside. You go to the loo do you?

A. Yeah, that's correct. I go from then to the toilet to ask Daryl. I said his name a couple of times, "Daryl, Daryl". He didn't wake so I tried to shake him and there was no response so I turned the light on and that's when I noticed he was purple and he had something around his throat.

Q. What did you do, what did you say then?

A. I went straight to the buzzer and there was just the intercom. I pushed the button and waited for a response and that's when I think I yelled out, "Help. Help. I think he's dead. He's got something around his face". Something along them lines. I can't remember exactly what I said.

Q. Did you play any part in causing his death?

A. Not at all.

Q. Did you assault him in any way?

A. No.

Q. Did you punch him or kick him or hit him?

A. Not at all.

Q. Did you use any electrical cord around his neck?

A. No, not at all.

Q. Did you have any part in placing the ligature that was around his neck there?

A. No.

Q. Did you put your hands around his neck?

A. No.

Q. Did you cause any physical harm to him at all?

A. No, not at all."

1. The accused agreed that he had been examined by Dr Furst on 2 July 2014 and had told Dr Furst that he remembered nothing of the incident (Ex 1 p. 6.1). He agreed that this was not the truth (T223 L42) before giving the following further evidence (commencing at T223 L44):

"Q. Was it a lie?

A. No, I don't see it as a lie. I was withholding, I suppose it was a lie. I'm not too sure how to explain it.

Q. Was there any reason why you told Dr Furst then that you didn't remember anything?

A. I was advised by another inmate who'd been through Court on serious matters that it would be best to say you didn't remember and because of that I didn't want to talk about it so I said I didn't remember.

Q. Did you tell your solicitor later on that was the position?

A. Yes, I did.

Q. You asked for an opportunity to see Dr Furst again to tell him the truth?

A. That's correct."

1. On 27 August 2014 the accused then saw Dr Furst for a second time and gave the following account of what had occurred (T224 L14-21):

"I woke up to go to the toilet. I had a piss. I decided to have a cup of tea. I was going to use a boiler, two bits of aluminium foil inserted into a power point. He, Jones, told me before to ask him if I wanted a tea bag. I went to ask him. There was no response. I saw he was purple. Then I saw he had something around his neck. I buzzed up, called a guard. I said something like, 'I think he's dead, I think you'd better get here.' I was panicking. There was a dead person".

1. The accused said (T224 L27) that such account to Dr Furst was truthful and admitted that he had previously lied (T227 L30-31). He also said (commencing at T224 L48) that he did not hear any noises during the course of the evening of the kind described by the other witnesses who were inmates at the time.

1. The accused was cross examined in relation to what he had initially told Dr Furst (commencing at T253 L11):

"Q. When you told a lie to Dr Furst about not being able to remember anything you said that you didn't see it as a lie?

A. I was withholding the truth so it is a lie, yes.

Q. So even though this morning you said you didn't see it as a lie

A. No, I was withholding the truth.

Q. Well it wasn't withholding the truth was it, it was saying something that wasn't true at all?

A. That's correct.

Q. It was saying I don't remember?

A. That's correct

Q. When in fact you had remembered?

A. That is correct.

Q. And you said that you did that on the advice of some other inmate?

A. That's correct.

Q. And you said that you did it also because you didn't want to talk about it?

A. That's correct.

Q. You didn't want to talk about it because you knew that you had some explaining to do, didn't you?

A. That's not correct at all. "

1. According to the accused when he first got up he was looking for a match to light a cigarette. He explained that it was at that point that the thought came into his mind to have a cup of tea and said (T233 L19-20):

"I'm waking the man up, I may as well ask him for a tea bag as well."

1. The accused admitted that he was aware that the deceased did not smoke but asserted that he had "had one of (his) cigarettes". As a consequence, he "wasn't too sure if the deceased had matches or not" (T253 L23-24). Why the deceased would have had one of the accused's cigarettes in circumstances where he did not smoke, and where he did not wish to be housed with a smoker (Ex F) is not apparent.

1. The accused said (T38 L27-29) that it would not be correct to say that he was "up and down all night" on this particular evening. When he was reminded of the evidence of his conversation with Sergeant Fairfax in this regard he said that he did not actually recall telling Sergeant Fairfax that was the case. He said that when he first observed the deceased after he got up there were blankets over him (T239 L33-34; T251 L15-16) and that he "ripped the blankets off" the deceased before checking his pulse (T39 L30-31).

1. The accused agreed that he did not see the deceased hanging from anywhere in the cell at any time, and that he did not see the ligature which was found around his neck attached to any point in the cell (T239 L42-46; T241 L39 - T243 L1). He said that when he saw the deceased he was laying on the bed with something tied around his throat (T239 L49).

1. When it was put to the accused that there was no point in the cell from which a person could hang himself, he disagreed, nominating a "mounting" on the wall, above the end of the bed on which the deceased was found and on which a fire extinguisher was placed. He asserted that this was a point from which a person could hang themselves if otherwise minded to do so.

1. He described the deceased when he first discovered him as having the appearance of being strangled (T243 L18-22). He also stated (commencing at T243 L24) that on the afternoon of 31 August 2012:

(i)   he did not see the deceased injure himself in any way on his face;

(ii)   he did not see any injury to the deceased's face;

(iii)   the deceased had not said that anyone had hit him or hurt him;

(iv)   the deceased did not complain about having a broken rib, a sore back or a sore arm; and

(v)   that he could see nothing wrong with the deceased.

1. Notwithstanding this, the accused denied (T244 L14-15) that he had caused the injuries to the deceased which had been identified by Dr Szentmariay. He further denied (commencing at T244 L49) attacking the deceased, struggling with him, strangling him, causing injury to him, and killing him. The accused also denied having ripped up a pillow case to make a ligature so as to give the impression that the deceased had strangled himself (T246 L46 and following). The accused also identified photographs taken by police on the morning of 1 September which demonstrated no marks on his hands (Ex 3).

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

1. Senior counsel for the Crown relied upon five specific areas of the evidence which, she submitted, established beyond reasonable doubt that the accused had killed the deceased.

1. Firstly, senior counsel relied upon what was referred to as the "physical evidence". She submitted, in particular, that the evidence of Dr Szentmariay established that the ligature which was found around the deceased's neck had not been attached to any point in the cell and was in fact not used to cause the deceased's death. The Crown also submitted that the position and appearance of the mark which was found by Dr Szentmariay on the deceased's neck were inconsistent with a conclusion that the deceased's death had been caused by hanging.

1. The Crown submitted that the only identified ligature which was capable of leaving the mark found by Dr Szentmariay was the electrical cord which was detachable from the television in the cell. The Crown submitted that the ligature which was found wrapped around the deceased's neck in fact had nothing to do with the deceased's death at all, and submitted that I should conclude that it had been constructed by the accused in an effort to give the impression that the deceased had taken his own life.

1. The Crown also pointed to the other injuries which Dr Szentmariay had identified. It was submitted that the nature and extent of those injuries were consistent only with a conclusion that the accused had attacked the deceased and engaged in a struggle with him. In this regard the Crown pointed, in particular, to the evidence of the presence of petechial haemorrhages and the evidence of Dr Szentmariay as to how such injuries are caused.

1. The Crown also relied on the evidence of the presence of blood underneath the deceased's fingernails. This, it was submitted, supported the conclusion that a struggle had taken place. It was further submitted that such evidence was consistent, in particular, with the deceased having made attempts to release the ligature from his neck in the course of struggling with the accused in the manner described by Dr Szentmariay. The Crown submitted that the fact that the accused had no visible marks on his hands at the time of his arrest was of little or no significance.

1. Secondly, the Crown relied upon the evidence of the deceased's mental state at the time of his death. The Crown pointed, in particular, to the evidence of Ms Caon and relied on the fact that the deceased had not been assessed as being at any substantial risk of self-harm in the hours leading up to his death. This, it was submitted, tended wholly against the proposition that the deceased had taken his own life. The Crown also relied, in this regard, upon the evidence of other inmates of their observations of the deceased's general demeanour, as well as the CCTV footage of the deceased interacting with other inmates on the morning of 30 August. The Crown also relied on the evidence of Mr Jones' observation of the deceased when he returned to his cell following the interview with Ms Caon.

1. Thirdly, the Crown relied upon the evidence given by other inmates in the Pod as to what they heard during the night of 31 August/1September. It was submitted, in particular, that the evidence of the witnesses Dillon, Morris, Turner and Piscatelli supported the conclusion that the deceased had been killed at about 12:30am on 1 September 2012, and that the words "Daryl what have you done" which were heard at about 2:30am represented one of a number of steps taken by the accused to give the impression that the deceased had taken his own life.

1. Fourthly, the Crown relied on the evidence of the accused's mental state at the time and pointed, in particular, to the evidence of the accused's belief that everyone, including the deceased, had been trying to kill him. It was submitted that in such circumstances, the deceased was vulnerable to the accused who was clearly suffering a significant mental illness, and whose beliefs provided a reason for him to want to kill the deceased

1. Finally, the Crown submitted that there was evidence to support the conclusion that having killed the deceased, the accused (to use the Crown's term) "stage managed" what happened thereafter, by doing and saying things designed to give the impression that the deceased had taken his own life when he had not. These things included constructing the ligature from a pillow case in the cell and placing it around the neck of the deceased.

Submissions of the accused

1. Counsel for the accused commenced by emphasising that the Crown case was a circumstantial one and that the accused bore no onus of proof. He also pointed to the fact that the accused had given evidence and that, in doing so, had not wavered from his account of relevant events.

1. The fundamental submission advanced by counsel for the accused was that the Crown had not established, beyond reasonable doubt, that the deliberate act of the accused had caused the death of the deceased, and had failed to exclude, as a reasonable possibility, that the deceased had killed himself in some way, be it accidentally or intentionally. In advancing that proposition, counsel submitted that an acceptance of the Crown case as it was put by senior counsel for the Crown involved impermissible speculation. Counsel then proceeded to make submissions regarding specific parts of the evidence.

1. Firstly, counsel submitted (by reference to Ex G) that there were 64 inmates housed in the Pod at the time, yet only a small number had been called to give evidence. He also submitted that a period of some days had elapsed between those witnesses speaking to the police and providing a statement, during which there had been discussions in and around the Pod about the deceased's death. This, it was submitted, gave rise to the possibility, if not the fact, that the recollections of those who gave evidence had become "infected", and were thus unreliable. Counsel also pointed to the fact that in some cases, the evidence of those witnesses differed from what they had originally told the Police.

1. Counsel further submitted that for the most part, those inmates called by the Crown were unable to attribute what they had heard to a particular person or to a particular location. As to the latter, counsel submitted that it was difficult to locate the source of any sound because of the acoustics within the Pod.

1. Counsel for the accused then turned to the evidence of Dr Szentmariay. He pointed out, in particular, that the suggested use of an electrical cord to strangle the deceased did not emerge until Dr Szentmariay gave evidence. The effect of counsel's submission, as I understood it, was that this necessarily affected the reliability of Dr Szentmariay's opinion.

1. Counsel then turned to the evidence of Ms Lennon. He submitted that her evidence was largely discredited as a consequence of her insistence that there was a wall immediately to the right of the cell door. It was submitted that her recollection in that regard was completely wrong, and that this necessarily had an effect upon the acceptance of her evidence as to where she saw the deceased when she entered the cell. It was submitted that the reliability of her evidence was further eroded by the fact that she did not make a statement to the police until March 2013, some considerable time after the relevant events had taken place.

1. Counsel for the accused also relied upon the evidence of the deceased's mental state leading up to his death. He emphasised, in particular, the evidence of Ms Caon that the deceased was crying when she saw him on the afternoon of 31 August. Counsel also relied on the evidence of Ms Parker and submitted that as early as July 2012 the deceased had been assessed as being at a risk of self-harm. Counsel also submitted that the deceased's mental state was not "constant" and that Ms Caon's observations of him on the afternoon of 31 August, even if accepted, did not lead to the conclusion that his presentation was the same some hours later.

1. Finally, in terms of the DNA evidence counsel submitted that the swabs taken from the fingernails of the deceased were at least equally consistent with him scratching himself, and not only consistent with an attempt to remove the ligature in the manner suggested by the Crown.

THE STATUTORY FRAMEWORK

1. Section 133 of the CPA is in the following terms:

133 Verdict of single Judge

(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

1. Section 133(2) requires that I expose my reasoning process, linking the relevant principles of law with the facts as I find them to be: Fleming v R [1999] HCA 68; (1998) 197 CLR 250 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108]-[110], Hoeben CJ at CL and Bellew J agreeing.

1. However, I am not required to express all of the matters which necessarily have to be stated to a jury unfamiliar with basic principles of the law: Markou v R [2012] NSWCCA 64 per Macfarlan JA (with whom RS Hulme J and RA Hulme J agreed), citing R v Winner (1995) 79 A Crim R 528 and 531.

1. Section 133(3) applies only to warnings and does not require that every direction given to a jury be referred to when giving judgment in a judge alone trial: W (supra) at [111]. No submission was made on behalf of either party in the present trial that I should have regard to any particular warning(s). However having regard to the submissions of the parties, and although not matters requiring a warning, I have had particular regard to the following.

1. Firstly, the accused admitted in evidence that he lied to Dr Furst. It was not suggested by the Crown that this lie was evidence of a consciousness of guilt on the part of the accused. Rather, the Crown submitted that it was evidence which went to the credit of the accused. I did not understand counsel for the accused to take issue with the Crown's approach. I am mindful of the fact that the lie told by the accused to Dr Furst cannot be used to support a conclusion that the accused is guilty, and that it can only be used to assess his credibility. It is a factor that I may consider has a bearing on whether or not I believe the various other assertions made by the accused when giving evidence: see Zoneff v R [2000] HCA 28; (2000) 200 CLR 234 at [23].

1. Secondly, as counsel for the accused submitted, the accused was under no obligation to give evidence at all. It is not the case that I must believe that the accused is telling the truth before he is entitled to be acquitted. The Crown bears the onus of proof and must establish the guilt of the accused beyond reasonable doubt. The only qualification to that proposition in the present case is that the onus of establishing the defence of mental illness lies on the accused, on the balance of probabilities: Mizzi v R (1960) 105 CLR 659. However there is no issue that if it becomes necessary to consider the defence of mental illness in the present case, that onus has been discharged.

1. Thirdly, the Crown case is a circumstantial one. In order to prove its case beyond reasonable doubt the Crown must exclude any other rational explanation for the facts: Shepherd v R (1990) 170 CLR 573. In the present case, it has been submitted on behalf of the accused that the Crown has failed to exclude, as a reasonable possibility, that the deceased took his own life, either intentionally or accidentally.

1. Fourthly, when considering the evidence in a circumstantial case, such evidence must be considered as a whole: R v Hillier (2007) 228 CLR 618 at [46].

THE DEFENCE OF MENTAL ILLNESS

1. As I have noted, there is evidence in the present case that the accused has the defence of mental illness available to him. Section 38 of the Mental Health (Forensic Provisions) Act 1990 is 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.

1. In the event that a special verdict is returned pursuant to s. 38, the provisions of s. 39 then 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.

1. In R v Stables [2014] NSWSC 697 Hidden J considered (commencing at [28]) the approach to be taken in a case where an accused was charged with a crime of specific intent and a defence of mental illness was raised. His Honour noted (at [28]) that in R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 Hunt AJA (with whom Spigelman CJ and Howie J agreed) had said (at [32]):

"Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent.

1. Applying that analysis to the present case, I am required to firstly determine whether the deliberate act of the accused caused the deceased's death. In the event that I were to come to that view, I must then determine whether the accused was criminally responsible for doing that act, that question giving rise to the defence of mental illness. If I were to conclude that the accused did not have that defence available, only then would I be required to consider whether he had the requisite intent: Stables (supra) at [29].

1. I have referred (at [166] below) to the fact that in Stables, Hidden J made reference to the fact that an approach different to that set out in Minani had, in the past, been adopted by some judges of this Court. However for the reasons outlined below, the circumstances of the present case are such that the adoption of either approach leads to the same result.

CONSIDERATION

1. In considering the evidence and the submissions of the parties, I turn firstly to the issue of the deceased's mental state in the period leading up to his death.

1. Ms Parker stated, with some certainty, that she had no concerns about the deceased being at risk of self-harm when she assessed him on 22 July 2012. However notwithstanding her assessment, the deceased was referred to the RIT. Ms Parker explained that such referrals were made only in cases where a risk of self-harm was identified. Given that Ms Parker had no concerns about such a risk, the precise reason(s) why the deceased was referred to the RIT remain, to some extent, unexplained. In any event, and whatever the reason(s), the RIT came to the opposite view of Ms Parker and assessed the deceased as presenting at a risk of self-harm, albeit a low one. That said, the observations made of the deceased by other inmates establish that the deceased interacted appropriately and showed little or no sign of mental instability.

1. On or about 30 August 2012 a proposed application for bail by the deceased did not proceed. Despite being disappointed at not being released, the deceased's spirits, according to Mr Clark, remained "reasonably good". I accept Mr Clarke's evidence in that regard. It is generally, if not completely, consistent with the observations made by Ms Caon and Mr Jones on the following day.

1. Although Ms Caon noted that the deceased was teary at times, she assessed him as being at low risk of immediate self-harm. I am satisfied that the deceased presented to Ms Caon in the manner that she described - namely relaxed, responsive, appropriately humorous and positive. Those observations are completely consistent with Ms Caon's final assessment of the level of the deceased's risk of self-harm, namely that it was low. Moreover, Ms Caon thought it appropriate to accept the guarantee which she had been given by the deceased that he would not self-harm. There was no suggestion made to Ms Caon that her acceptance of that guarantee was other than soundly based.

1. Further, and consistent with the observations of Mr Jones, I am satisfied that the deceased was in a positive frame of mind when he returned to his cell following his interview with Ms Caon. I reject the evidence of the accused regarding his observations of the deceased's demeanour at that time. That evidence is completely inconsistent with the unchallenged observations of Ms Caon which were made only a short time before. What is also significant, is that the observations of Ms Caon and Mr Jones were made only 10-12 hours prior to the deceased's death.

1. For all of these reasons, I am satisfied that in the hours leading up to his death, the deceased was in a stable mental state, and that he presented as being at a low risk of immediate self-harm. That presentation is, in my view, is completely at odds with the proposition that he took his own life.

1. I am also satisfied that there was a disturbance from within the Pod in the early hours of 1 September 2012. As I have previously noted, counsel for the accused relied (inter alia) on the fact that only a small percentage of the inmates in the Pod were called by the Crown to give evidence. The proposition that there were a total of 64 inmates in the Pod at the time was based upon the plan of the Pod (Ex G). It assumes that each cell was occupied by 2 persons, a matter about which there is no direct evidence. However even accepting that there were a total of 64 inmates within the Pod, the fact that only a small number of them were called to give evidence is, in my view, of limited significance. The more important consideration is what evidence was in fact given by those who were called.

1. I have already made note of the fact that some of those persons called had provided accounts to the police which were at odds with the evidence that they gave. For the reasons I have already expressed, that is explicable.

1. Further, and although the evidence is not precise, there seems little doubt that there was a gap of some days (perhaps 4 or 5) between the time that the inmates were spoken to by police and the time at which they made their statements. There is also some evidence that, as might be expected, the deceased's death was a topic of discussion in and around the Pod. However, I am unable to accept the submission that all of those inmates who were called participated in such discussions, as a consequence of which their evidence should be regarded as unreliable. As I have noted, some of the witnesses were not cross-examined about that issue at all.

1. Further, I am unable to accept the submission made by counsel for the accused that those inmates who were called were unable to identify the deceased's voice, or were unable to pinpoint the direction from which they heard such sounds. Mr Dillon is a case in point. He knew the deceased. He heard a voice crying for help on 5 separate occasions. He was in no doubt that it was the voice of the deceased that he heard. He nominated the direction from which he heard that voice. That direction was consistent with the location of cell 407. The fact that he may have initially told the police that he heard nothing does not, in the circumstances, cause me to reject his evidence.

1. Further, whilst the deceased's death might well have been a topic of conversation in the Pod between the time Mr Dillon first spoke with the police and the time he made his statement, and whilst Mr Dillon conceded that he had heard suggestions about the cause of the deceased's death, there is no evidence that he took part in any such discussions, much less evidence that such discussions influenced his evidence in any way. I am satisfied that what Mr Dillon heard were the deceased's cries for help at about 12.30 am on 1 September. Those cries were being made because the deceased was being attacked by, and was struggling with, the accused.

1. Mr Morris heard sobbing coming from another cell at about the same time. Mr Turner, his cellmate, described what he heard at that time as "uncontrollable crying" and pinpointed the location of what he had heard as coming from a direction consistent with the position of the deceased's cell. I am satisfied that it was the deceased who was making those noises.

1. Mr Jones also heard a distinct scream which he immediately identified as the voice of the deceased. Mr Jones was housed only two cells away from the deceased at that time.

1. In all of these circumstances I am unable to accept the submission advanced by counsel for the accused that the evidence called from these inmates suffers from the shortcomings which were suggested. I am satisfied that what was heard at about 12:30am on 1 September were the deceased's cries for help. On the whole of the evidence, including the evidence of injuries to the deceased to which I have referred below, I am satisfied that the deceased was crying for help because at that time he was being strangled by the accused with an electrical cord.

1. I am also satisfied, based on the evidence to which I have referred, that the words "oh no Daryl, what have you done?" were words uttered by the accused at or about the time he made the emergency call. For the reasons more fully set out below, I am satisfied that those words represented one of a number of steps taken by the accused to create an impression that the deceased had taken his own life when in fact he had not.

1. Having regard to the opinion of Dr Szentmariay, there is no doubt that the deceased died of neck compression. The more pressing question concerns the mechanism by which that neck compression was caused. The Crown case is that it was caused by the accused strangling the deceased. The accused denies any involvement in the deceased's death and submits, through his counsel, that the Crown has failed to exclude the possibility that the deceased in fact killed himself, either intentionally or accidentally. I should say at this point that in my view, the nature of the ligature mark found on the deceased's neck, and the multitude of accompanying injuries which were found to have been inflicted upon his body, tend completely against the proposition that his death was somehow accidental.

1. The opinion of Dr Szentmariay concerning the use of an electrical cord to strangle the deceased emerged for the first time in the course of his evidence, although in her opening address Senior Counsel for the Crown had alluded to it. However on the whole of the evidence, the late emergence of the evidence is not a reason to reject Dr Szentmariay's opinion.

1. The item which was used to cause the deceased's neck compression must obviously have been present in the cell. The evidence establishes that there was an electrical cord attached to the television within the cell at the time of the deceased's death. The cord was detachable. Dr Szentmariay's opinion, which I accept, was that the shape and pattern of the ligature mark found on the deceased's neck was consistent with the use of such a cord, and inconsistent with the use of the ligature which was found tied around the deceased's neck.

1. Further, and to the extent that the Crown must exclude as a reasonable possibility that the deceased died by hanging, Dr Szentmariay's opinion, which I accept, was that the position of the ligature mark found on the deceased's neck was inconsistent with his death having been caused in that way.

1. In my view, the whole of the evidence tends completely against the proposition that the deceased took his own life by hanging. The accused agreed that he did not, at any time, see the deceased hanging from anything within the cell. I do not accept the accused's evidence that it was possible for a person, if so minded, to hang himself from the fire extinguisher point. Even if it were theoretically possible to do so, the evidence in the present case runs completely contrary to such a conclusion. I have in mind, in particular, the evidence that when the deceased was found by the accused he was lying on his bed with the blankets pulled up over him. The suggestion that the deceased may have hanged himself from the fire extinguisher point, only to fall supine on the bed with the blankets pulled up over him, borders on the fanciful.

1. The injuries which Dr Szentmariay found on the deceased were many and varied. I am satisfied that the rib fracture was not caused in the course of CPR being administered. Despite Dr Szentmariay's acceptance of statistical data as to the occasioning of rib fractures during CPR, his unequivocal evidence was that the present case was not to be regarded as falling within the 30% of cases to which he was referred in cross-examination. The reason for this was twofold. Firstly, having previously seen Ex A, he did not consider that the force which was applied to the deceased by Ms Apap and her colleague was of such a vigourous nature as to be likely to bring about such an injury. Secondly, he pointed out that the site of the deceased's rib fracture was inconsistent with the site at which CPR is applied.

1. As I have previously outlined, Dr Szentmariay also found a number of other injuries occasioned to the deceased. Those injuries were widespread. They were found on the face, neck, back, one arm and one toe of the deceased. Perhaps with the exception of the vertical linear abrasions to the anterior region of the deceased's neck, the injuries found at the post mortem examination were generally characterised by one or both of two factors. The first was that they were the result of the application of blunt force. The second was that they were recently inflicted. The petechial haemorrhages, in particular, were considered by Dr Szentmariay to be consistent with a struggle.

1. When Ms Caon interviewed the deceased on the afternoon of 31 August 2012 he exhibited no overt sign of injury. He made no complaint of injury, or being in pain. I am satisfied that the injuries of which Dr Szentmariay gave evidence were sustained by the deceased at some time after he returned to his cell on the afternoon of 31 August. Once Mr Jones had left, the only two people in the cell were the deceased and the accused. The nature and extent of the injuries are at odds with the suggestion that the deceased somehow inflicted them upon himself. I am satisfied that they were inflicted by the accused in the course of struggling with the deceased and strangling him. They are, in my view, inexplicable on any other rational basis.

1. It was submitted on behalf of the accused that the linear abrasions were consistent with the deceased having scratched himself. However, isolating that particular injury from the others and advancing an alternative theory as to its cause reflects, in my view, an incorrect approach to the assessment of evidence in a circumstantial case: Gilham v R [2012] NSWCCA 131 at [466] cited in Lazaris v R [2014] NSWCCA 163 at [61].

1. In the present case, the evidence as a whole is consistent only with the conclusion that the majority of the deceased's injuries were intentionally inflicted upon him by some other person. The linear abrasions to the neck are the obvious exception. In my view, on the whole of the evidence, the only rational explanation for those abrasions is that they represent an attempt by the deceased to remove the ligature whilst he was being strangled. Moreover, the clear and unequivocal evidence is that the accused thought everybody, including the deceased, was intent upon killing him. In those circumstances there is no doubt that the accused had a reason to want to strangle the deceased.

1. There is no dispute that the deceased was found by Corrective Services officers lying on the bed to the right hand side of the cell. That was not the bed in which Ms Lennon said she saw the deceased lying on the previous evening. That necessarily brings me to consider the reliability of the evidence of Ms Lennon. In doing so, it should be noted that it was not submitted on behalf of the accused that Ms Lennon had been deliberately untruthful. Rather, it was submitted that she was mistaken as to the position in which she saw the deceased, and that her evidence in that regard was unreliable. The primary basis for that submission stemmed from Ms Lennon's use of the word "wall" to describe what obscured the view to the right upon entering the cell, and her specific denial in cross-examination that what she had described as a wall was, in fact, a shower curtain.

1. I accept that Ms Lennon's use of the word wall was not accurate to describe the relevant area. By reference to Ex A, there was a shower curtain in the position referred to by Ms Lennon, not a wall. However the focus of Ms Lennon's evidence was the fact that her view was obscured, rather than what caused that to be the case. It was in that context that she used the word wall to describe what was there. As Ms Lennon explained in cross examination (T36 L43-45):

A "What I'm suggesting is where I'm standing there is something obstructing my view to that side of the cell. I'm calling it a wall because there would be a shower and a toilet on that side (witness indicated).

Q Well you're calling it a wall, but is it in fact a wall or are you unable to say?

A I'm unable to say at the moment".

1. True it is that Ms Lennon later denied that what she had described as a wall was in fact a shower curtain. However, what is important is that her evidence about the obstruction of her view to the right was perfectly correct, as was her evidence of the general layout of the cell, including the positions of the beds, shower and toilet. There is no issue that her evidence that she spoke with the accused, and that he refused his medication, was similarly correct. In all of these circumstances, her use of the word "wall" does not lead me to conclude that her evidence of seeing the deceased in bed was unreliable.

1. Ms Lennon's evidence about what she saw was clear and unequivocal. Although she did not make a statement until some considerable time later, the effect of her evidence (T37 L48-T38 L5) was that when she became aware of the deceased's death on the following morning she vividly recalled seeing him in the bed. The fact that she would have such a vivid recollection, given what she had learned had happened to the deceased, is in my view perfectly understandable.

1. For all of these reasons, I accept Ms Lennon's evidence as to her observation and I am satisfied that when she entered cell 407 on the evening of 31 August, the deceased was lying in the position she designated on Ex B, namely in the bed towards the left hand corner. That was, of course, different to the position in which he was found on the following morning. As I have previously noted, the police, by reference to various belongings within the cell, identified the deceased's bed as the one in which he was found. However, Sergeant McMaugh conceded that this was, in effect, a conclusion drawn from the position of various personal items in the cell, as opposed to any direct observation, such as that of Ms Lennon, of any person occupying a particular bed.

1. There is no apparent reason why the deceased, having occupied the bed in which Ms Lennon observed him, may have wished to change beds at some time during the night. I am satisfied that the deceased was moved by the accused as part of an attempt by the accused to give the impression that the deceased had committed suicide. I am also satisfied that having done so, the deceased shouted words to the effect "Daryl, what have you done" at or around the time that he made the emergency call. For the reasons I have set out the accused well knew that the deceased had done nothing to himself. His words represented a further attempt to give the impression that the deceased had taken his own life.

1. I am also satisfied that the steps taken by the accused also involved constructing a ligature and placing it around the deceased's neck to give the impression that he had taken his own life. For the reasons I have previously expressed, I am satisfied that the ligature cut from the deceased's neck by officer Trench played no part in bringing about his death. In light of the evidence of, in particular, Mr Dillon, I am satisfied that the death of the deceased occurred about 12.30 am on 1 September. The authorities were not notified until about 2 hours after that. It was in that intervening period that the deceased took the steps to which I have referred. In those circumstances, given the lapse of time, the fact that there were no marks on his hands when spoken to by the police is of no consequence.

1. Inherent in the conclusions I have reached is a rejection of the accused's account of what occurred. There is no dispute that the accused lied to Dr Furst when he first spoke with him and I have referred to how that lie can be used. In this regard, it is significant that when giving evidence the accused initially appeared reluctant to accept that he had lied to Dr Furst. When he finally accepted that he had lied, he went on to explain the reasons for doing so. In my view, the only available conclusion is that the accused decided to be untruthful to Dr Furst because that approach suited his own purposes at the time. With these matters in mind, whilst the accused does not have to prove his innocence, there were aspects of his account which were contrary to the evidence and otherwise difficult to accept.

1. For example, the accused asserted that he had woken up during the night and had wanted to have a cigarette. On his account, he decided to ask the deceased if he had a match. The deceased did not smoke. In fact, when he saw Ms Caon he complained to her that his principal difficulty was being housed with someone who did. The accused admitted that he was aware that the deceased did not smoke. In these circumstances, the accused's assertion that the deceased somehow "had one of (his) cigarettes" is curious to say the least and there is no apparent reason why the accused might reasonably have thought that the deceased had matches.

1. Further, the accused said that having woken up he decided to have a cup of tea. The suggestion that he found it necessary to wake the deceased, at some time after 2:00 am, for the purposes of asking him whether he had a match or could borrow a tea bag, is in my view incredulous. Significantly, these aspects of his account were not peripheral to the issues in this case. They formed part of the fundamental basis of the accused's account of how he came to discover the deceased lying in his bed.

1. For all of these reasons, I am satisfied that it was the deliberate act of the accused which caused the deceased's death. In particular, I am satisfied that the accused strangled the deceased to death with the use of a power cord from the television in the cell and that in the associated struggle, he inflicted the injuries to the deceased's neck, face, back, upper arm, rib and toe which were found by Dr Szentmariay. I am satisfied that the linear abrasions found on the anterior surface of the deceased's neck were brought about as a consequence of the deceased struggling with the accused and trying to remove the power cord with which he was being strangled at the time.

1. Having strangled the deceased, I am satisfied that the accused took steps to try and create the impression that the deceased had taken his own life. In particular, I am satisfied that the accused constructed a ligature from within the cell and tied it around the deceased's neck, later exclaiming words to the effect "Daryl, what have you done".

1. In Stables Hidden J noted (at [32]) that there had been cases in which judges of this Court, perhaps in the absence of an awareness of the decision in Minani, had approached the determination of the defence of mental illness in accordance with the decision in R v S [1979] 2 NSWLR 1, and had proceeded to determine whether all of the requisite elements of the offence had been proved, before then proceeding to consider the defence. If I were required to adopt that approach in the present case I would find that the accused acted, at the very least, with an intention to inflict grievous bodily harm upon the deceased. That is the overwhelming inference to be drawn from the fact that as a consequence of his mental illness, the accused held a belief that everyone, including the deceased, was trying to kill him. Accordingly, as was the case in Stables, the adoption of either approach leads to the point where I am required to consider the availability of the defence of mental illness.

1. In order for a defence of mental illness to be made out, there must be evidence that at the time of committing the act causing the deceased's death the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong (see R v McNaghton (1843) 8 ER 718; R v S (supra)). The test was stated by Dixon J in R v Porter (1933) 55 CLR 182 at 189-190 in the following terms:

"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know, in this 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 every day standards of reasonable people."

1. In the present case the Crown tendered a report of Dr Yvonne Skinner, Consultant Psychiatrist, who examined the accused on 24 July 2014 and who provided two reports, the first dated 31 July 2014 and second dated 29 August 2014.

1. Consistent with the evidence given by the accused, Dr Skinner recorded (inter alia) the following history (Ex W1 at p. 2.9 and following):

"Immediately when he came to prison in June 2012 he thought that the doctors and nurses and prison officers were out to get him, possibly kill him. He was also afraid of other inmates, thinking that they would try to kill him. He noticed that some of the people were of different nationalities and he thought these were from different alien planets. Because he thought he knew about aliens, he thought that they were going to kill him.

Doctors prescribed medication but he did not take it. He said he spat out the medication and when they gave him wafers of olanzapine, he washed his mouth out so that the wafer did not have an effect. He has thought that these doctors were trying to kill him, poisoning him by wafers or by tablets.

When he first was admitted to prison he spent time in Darcy 2 Pod and saw a psychiatrist. He was then transferred to the Mental Health Pod and went backwards and forwards a few times between different Pods. He was diagnosed with schizophrenia and the psychiatrist prescribed the medication Solian. The doctor prescribed olanzapine but he was not taking the tablets or wafers."

1. Dr Skinner obtained a history surrounding the death of the deceased (commencing at p. 3.4 of Ex W1) which was broadly consistent with the account given by the accused in evidence.

1. Dr Skinner noted (at p. 5.8 and following of Ex W1) that a review of Justice Health records established that from the time of his incarceration in June 2012 the accused's history of schizophrenia was noted. She also noted the psychotic episodes had been diagnosed as long ago as November 2006 (at p. 6.7).

1. Dr Skinner then expressed the following conclusion (commencing at p. 7.2 of Ex W1):

"Mr Brian Brindley has a long history of substance abuse. He suffers from chronic paranoid schizophrenia, which appears to have been diagnosed in about 2006. At the time of his imprisonment in June 2012 he had not been treated with appropriate antipsychotic medications for some months and he had been abusing substances including amphetamines. He reported auditory hallucinations and paranoid delusions of being followed and fears that he was about to be killed. He reports that he felt so fearful that he falsely claimed that he was about to self-harm in order to be placed in a single cell which he regarded as more secure. This is supported by the clinical records of Justice Health. Shortly prior to the alleged events he had been in a "safe" cell before he was placed in the cell with Mr Daryl Jones. It appears that he believed his cellmate, Daryl Jones, wanted to kill him, although he had never met Mr Jones before. He said he thought that everyone wanted to kill him.

Mr Brindley has now been treated with medication including injected depo antipsychotic medication and he no longer reports delusions or auditory hallucinations. At the time of my examination there was no sign of any cognitive dysfunction or psychotic phenomena.

In my opinion Mr Brindley has a defence of mental illness for the alleged offences that occurred around the time of 31 August 2012. He suffers from chronic paranoid schizophrenia and at that time had delusional beliefs that he was about to be killed and that Mr Daryl Jones represented a threat to him."

1. In her second report (Ex W2) Dr Skinner had the benefit of reviewing additional records, but confirmed her opinion that the accused had the defence of mental illness available to him. Although Dr Skinner did not expressly refer to the criteria in Porter (supra), I have no reason, in light of the whole of her report, to reject her opinion as to the availability of the defence of mental illness.

1. Two reports of Dr Furst, Consultant Psychiatrist dated 2 July 2014 and 27 August 2014 were tendered in the accused's case (Ex 1 and Ex 2 respectively).

1. I have already made reference to the fact that the accused, on his own admission, gave a false account to Dr Furst at the time of his initial consultation with him. In that regard, Dr Furst recorded the following (commencing at p. 6.1 of Ex 1):

"When asked about the offence in question before the court, Mr Brindley said, "I don't remember nothing Doctor Furst."

On specific questioning, Mr Brindley was able to recall 'knocking up' and telling Department of Corrective Services officers his cellmate [Jones] had hung himself. Mr Brindley said he knew this because "he [Jones] had something around his neck."

He had not slept for days on end at the time, having just been moved from a 'safe-cell' to the cell in question [number 407].

He could not recall saying the sheet was tight.

He said he was "panicking" at the time.

Mr Brindley acknowledged that he still had 'voices' and paranoid feelings on the night of the alleged offence.

Mr Brindley denied being worried about sex offenders, claiming he did not realise the deceased was a sex offender at the time of the alleged offence.

He could not recall telling police he woke up to have a cup of tea.

I note that a blade apparently fell out of his shoe at the Auburn Police Station. Mr Brindley was unable to recall how the blade got into his shoe and could not recall putting it there.

When asked if he injured the deceased in any way, Mr Brindley again said, "I don't remember anything Doctor Furst.""

1. Dr Furst reviewed documents relating to the accused's mental history and noted in particular (at p. 7.3 of Ex 1) that medical records confirmed a history of schizophrenia dating back to at least 2007.

1. In terms of the availability of a defence of mental illness Dr Furst reported (commencing at p. 10.2 of Ex 1):

"Mr Brindley has a chronic schizophrenic illness. There was evidence that he was psychotic throughout the majority of 2012 up to and including the time of his arrest in June 2012, especially given his history of treatment resistance.

A review of his Justice medical notes and the police brief of evidence indicates that he remained psychotic at the time of the events in question before the court on 01/09/12. He appears to have been so distressed that he required management in 'safe-cell' conditions, only returning to a shared cell on the day prior to the alleged events.

He apparently heard voices he took to be from aliens, believed that he would be killed, and was suffering from self-referential thinking. It would appear that he also believed his cellmate Daryl Jones wanted to kill him, despite never having met him before.

In my opinion, Mr Brindley was suffering from a defect of reason in the form of paranoid delusions and associated auditory hallucinations that involved the victim at the time of the alleged murder. He has a disease of the mind in the form of a chronic schizophrenic illness. He was probably unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure, despite probably having an awareness of his alleged actions. In my opinion, he has the mental illness defence available to him."

1. The circumstances in which Dr Furst's second report (Ex 2) came into existence have already been canvassed. On that occasion the accused provided Dr Furst with a history of the circumstances in which he allegedly found the deceased which was broadly consistent with the account that he gave in the course of his evidence. However, Dr Furst said:

"I remained of the opinion that Mr Brindley is fit to be tried and has the mental illness defence available to him. He probably also has substantial impairment by abnormality of mind open to him as a partial defence to the charge of murder."

1. If medical evidence relating to the issue of mental illness is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it: see R v Afele [2014] NSWSC 366 at [68] citing R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173; Tumanako v R (1992) 64 A Crim R 149.

1. In the present case, I constitute the tribunal of fact. There is no evidence which runs contrary to the opinions of Dr Skinner and Dr Furst, and I accept those opinions.

1. It follows that the defence of mental illness is made out.

ORDERS

1. For the above reasons I make the following orders.

(2)   I find the accused not guilty of the murder of Daryl Jones, also known as Graham Copeland, on the grounds of mental illness.

(3) 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.

(4)   I direct the Registrar to notify the Minister for Health, and the Mental Health Review Tribunal, of the orders I have made.

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Decision last updated: 19 September 2014