R v Brown

[2015] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation:

R v Brown [2015] NSWSC 236

Hearing dates:

30 March 2015

Date of orders:

16 April 2015

Decision date:

16 April 2015

Jurisdiction:

Common Law - Criminal

Before:

Mathews AJ

Decision:

In relation to the charge that the accused, David John Brown, murdered Therese Ann Brown, I enter a special verdict that he is not guilty by reason of mental illness.

In addition I make the following orders: 

(a) That he, David John Brown, be detained by the Department of Corrective Services until released by due process of law.

(b) That the Registrar of the Court notify the Minister of Health of this judgment and order.

(c) That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with             the following documentation:

       (i)   A copy of these reasons for verdict and orders;

       (ii)  A transcript of these proceedings;

       (iii) A copy of the exhibits tendered at the hearing.

Catchwords:

Murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

Legislation Cited:

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

Cases Cited:

Hawkins v The Queen (1994) 179 CLR
R v McNaghten (1843) i ER 718
R v Newbury [2012] NSWSC
The King v Porter (1933) 55 CLR

Category:

Principal judgment

Parties:

Regina
David John Brown

Representation:

Counsel:
Mr M Hobart SC (Crown)
Mr E Ozen (Accused)

Solicitor:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2014/56901

Judgment

1. HER HONOUR: On 30 March 2015 the accused, David John Brown, was charged by way of indictment that, on 3 January 2014 at Bulli in New South Wales, he murdered Therese Ann Brown. He pleaded not guilty on the ground of mental illness.

2. An order had previously been made, by consent, that the proceedings be tried by judge alone. Accordingly the trial proceeded before me without a jury. A number of documents were tendered by the Crown and the defence, all of them by consent. Brief oral evidence was given by two psychiatrists. Both counsel were in agreement that the appropriate verdict, in all the circumstances, was the special verdict of not guilty by reason of mental illness.

3. Having now had the opportunity of reading the various documents tendered by the parties, as well as the authorities referred to by the Crown, I am firmly of the view that this is the only appropriate verdict in the circumstances, and it is accordingly the verdict I will be entering. The following are my reasons for reaching this conclusion, as required by s 132(2) of the Criminal Procedure Act 1986 (as amended).

Circumstances of the Offence

4. The deceased, Therese Ann Brown, was the sister of the accused. At the relevant time the two of them were living in a house in Hobart Street Bulli, a northern suburb of Wollongong. They had bought it together some time earlier after receiving an inheritance from their parents.

5. A little before 4 am on 3 January 2014, when the deceased was asleep in her bedroom, the accused went into her room with a fishing knife. He proceeded to stab her in the chest and then to slash her neck. She apparently fell to the floor in the process of the attack. Afterwards he tried to stab himself in the chest, but was unsuccessful. He then held the knife against the wall and rammed his chest against it. He succeeded in wounding himself, but not seriously enough to affect his movements thereafter.

6. The accused then took the deceased’s car keys, and drove her car from Bulli to Gladesville, to the street where he and the deceased had lived with their parents for most of their lives. He knocked on the door of their previous next-door neighbour’s home. He later said that he did this “to make sure that they were okay”, as he believed that they were about to be murdered by the assailants who had been pursuing himself and his sister. There was no reply, so he returned to the car and drove to the Gladesville Police Station. At about 5.30 am he walked through the door, covered in blood. When asked what had happened, he said: “I stabbed meself (sic), and I stabbed my sister. I killed her.” One of the officers started to administer first aid to the accused. Whilst she was doing so the accused said: “They were coming to get me. They have been after me for a while. I haven’t slept in three days. My sister told me to try and get some sleep but I can’t because they are after me. They have cut up other family members in pieces and put them into chicken bags... I tried to get it through but I just couldn’t do it... I tried to get it through but I just couldn’t do it so I came here.”

7. The accused told police that he had driven there in his car and that the knife was in the car. The officers then examined the car, and found what was described as “a black fishing/diving knife” on the front passenger seat. This was clearly the weapon with which the accused had killed the deceased and wounded himself.

8. The accused was arrested and taken by ambulance to the Royal North Shore Hospital where he was admitted under police guard. He was found to be suffering from a haemo-pneumothorax arising from his self-inflicted stab wound. The knife had penetrated his lung, causing blood and air to enter the lung cavity. A little later that morning he said to the police officer who was guarding him: “I killed her… I was on top of her chest then she was pushing on me. I pushed the knife in her. Then I did it again and she said ‘Oh David, oh David’. I said ‘you know we have to do this’, because I know what’s in store for her, you know. I wanted to make sure she would die so I cut her neck. There was blood everywhere, heaps of it.” The accused went on to say that when he first stabbed his sister she was lying down. When she tried to get up he stabbed her again, then she was on the ground. He then tried to kill himself by holding the knife against the wall and pushing his chest against it. The accused said that his sister did not want to die, “but I knew what was in store for her. It had to be done mate. Anyone’s photo inside that place is going to die.”

9. The accused then fell asleep. When he woke he became violent and aggressive. He pulled the IV lines out from his body, dug his fingers into his chest wound and threw an oxygen tank at a security guard. He was eventually restrained and sedated.

10. While this was happening other police went to the house in Hobart Street Bulli. There they found the body of the deceased, lying face down in a pool of blood on the floor of her bedroom.

11. A post mortem examination of the deceased was later conducted by the forensic pathologist Dr Brouwer. Dr Brouwer found that the deceased had sustained two major injuries. The first was a penetrating chest wound which had cut the second rib and penetrated the heart and the pulmonary aorta. The second was a gaping wound to the right side of the neck which had severed the carotid artery and the jugular vein. Both of them were fatal injuries, according to Dr Brouwer. In addition, there were defensive wounds to the deceased’s left hand and forearm.

12. At this point I turn to say something about the background of the accused.

Background of the Accused

13. The accused was 46 years old at the time of the killing, having been born on 3 November 1967. He spent his boyhood in Sydney, in the Gladesville area, and attended school until year 10. He had trouble learning, and was somewhat restless at school, but otherwise displayed no signs of intellectual disability or conduct disorder. As well as his older sister, Therese, he had a younger brother. There was apparently some stress in the family home, where his mother was looking after his bedridden grandmother. In addition Therese, who was six years older than him, had displayed signs of mental illness from about the age of eight, and was later diagnosed as suffering from bipolar affective disorder.

14. After leaving school the accused followed his father into the roofing industry, and in due course established his own business, together with his cousin.

15. The accused apparently had a number of short term relationships, and never married. Similarly, his sister Therese never married, and the two of them were sharing the house at Bulli at the time of the killing.

16. The accused’s father died in 2008 and his mother the following year. Also in 2008 and again in 2009 the accused injured his back, and it seems that he has not worked in his trade since then. During the years preceding the offence, the accused became increasingly concerned, to the point of obsession, about debts which his business had run up. He was convinced that he had been defrauded by a family member. At the same time, according to what he later told Professor Greenwood, he himself had a serious gambling addiction. He said that gambling on the horses gave him a “high”, and over the ten years before the killing he had gambled over $400,000.

17. In 2013, the year before the killing, the accused first displayed florid signs of mental disorder. He was seen at the Wollongong Hospital in March of that year, and diagnosed with a chronic psychotic disorder. He was put on antipsychotic medication and sent home. On 30 July 2013 he was admitted to Wollongong Hospital, having been brought in by ambulance and police on a Schedule 1. He presented with agitation, pacing, rambling and raised speech. He had paranoid delusions about financial matters associated with his business. He was diagnosed as suffering from a psychotic episode arising from either schizophrenia or a delusional disorder. He was discharged after six days.

18. The accused was re-admitted to Wollongong Hospital on 7 September 2013, having been sent in by a private psychiatrist. He had been non-compliant with his medication, and had paranoid delusions that someone was going to harm him. He was diagnosed as suffering from a delusional disorder, and was treated with antipsychotic medication. He remained in hospital until 14 October. During that time he came under the care of Dr Malesu, who queried whether the correct diagnosis was schizophrenia rather than delusional disorder.

19. The accused had no further hospital admissions up to the time of the killing, very early the following year.

Issues to be Determined   

20. The accused having been charged with murder, it goes without saying that the Crown must prove beyond reasonable doubt the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first instance, are significantly reduced.

21. The Crown must prove in all cases that it was a voluntary or intentional act of the accused which caused the death of the deceased. A “voluntary or intentional act” is to be contrasted with an involuntary or accidental one. In determining this matter, the Court is to put to one side the evidence as to the underlying mental condition of the accused. If this matter is proved beyond reasonable doubt the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the relevant time. However when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen (1994) 179 CLR 500. In that event the next matter for consideration is whether the elements of that defence have been established by the accused on the balance of probabilities. If so, there is no need to consider the accused’s intention at the time (see also R v Newbury [2012] NSWSC 1361). The accused is to be found not guilty on the ground of mental illness. It is only if the defence is not made out that the Court is to return to consider whether the Crown has proved that the accused had the requisite intention for murder.

22. In the present case, there can be no doubt that it was the accused who inflicted the fatal stab wounds on the deceased. Nor can there be any doubt that his actions in this regard were voluntary and intentional ones in the relevant sense. Indeed, no one has sought to suggest to the contrary. Accordingly, the next significant matter for consideration relates to the accused’s mental state at the time of the killing, and particularly whether the defence of mental illness has been made out so as to lead to a special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”).

The Defence of Mental Illness

23. There is no statutory definition of the defence of mental illness. It has long been established that, once the defence has been raised, it is to be resolved in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 (“the McNaghten Rules”). Under these rules the accused must prove, on the balance of probabilities, that at the time he inflicted the fatal stab wounds he was labouring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.

24. As to this last requirement, that the accused not know that what he was doing was wrong, it is now firmly established that this does not relate to his understanding of the illegality of his actions, but rather to his appreciation, in a deep or moral sense, of the wrongfulness of his conduct. As Dixon J (as he then was) said in The King v Porter (1933) 55 CLR 182:

“If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

25. At this point I turn to discuss the psychiatric evidence given in the trial.

The Psychiatric Evidence

26. The accused has been assessed by two psychiatrists for the purpose of these proceedings: Professor David Greenberg at the request of the Crown, and Dr Richard Furst at the request of the defence. Both provided written reports, and also gave brief evidence at the trial. Both are extremely experienced forensic psychiatrists, with extensive knowledge and experience of the criminal justice system. I shall briefly describe the reports and conclusions of each of them.

27. Professor Greenberg had interviewed the accused at the Metropolitan Remand Centre at the Silverwater Complex on 9 August 2014. He had also been provided with all relevant documentation relating to the accused’s background and the circumstances of the current offence. He wrote a lengthy report dated 19 August 2014, and a supplementary report dated 3 March 2015.

28. In his earlier report, Professor Greenberg set out the accused’s account of the events leading up to the killing. He had been increasingly “run down” mentally, he said, and had started to hear voices. He believed that someone was watching his house, and that assailants were planning to come and kill him and make dog food out of him. He became very fearful, so he placed several knives at various places in his bedroom in order to protect himself.

29. The accused told Dr Greenberg that, on the evening before the killing, he went to bed, but he could not sleep. The voices were telling him to kill himself. He believed that every person depicted in a picture or photograph in the house would be murdered. The voices were also telling him to kill his sister. He feared that if he did not do so, the “others” would. So he took the knife from his bedside table and went into his sister’s bedroom. What happened immediately thereafter has already been described.

30. Professor Greenberg noted that after the accused was arrested he remained in the Intensive Care Unit at the Royal North Shore Hospital until 8 January, at which time he was discharged into the care of the police. He was then taken to the Long Bay Prison Hospital where he was scheduled under the Act and was treated with antipsychotic medication.

31. Professor Greenberg considered that the accused was suffering from a disease of the mind, namely chronic paranoid schizophrenic disorder. At the time of the offence this was in an acute phase, with the accused having both auditory hallucinations and paranoid delusions. The auditory hallucinations consisted of voices which were telling him to kill his sister and himself; the paranoid delusions included delusions that he was being spied upon. Accordingly, at the relevant time the accused was labouring under a defect of reason caused by a disease of the mind, within the meaning of the McNaghten Rules.

32. As to the next requirement of the defence of mental illness, Professor Greenberg considered that at the time of the offence the accused knew, to a partial degree, the nature and quality of his act. However he did not know that it was wrong, because he was labouring under a defect of reason arising from his paranoid delusions and auditory hallucinations.

33. Accordingly, Professor Greenberg was of the opinion that at the time of the killing the accused was suffering from a disease of the mind within the meaning of the McNaghten Rules, and therefore has the defence of mental illness available to him.

34. In his second report, dated 3 March 2015, Professor Greenberg addressed the question of whether the accused had a rational motive for what he did, namely that it would be better for both his sister and himself to die in order to avoid the financial problems that he was apparently facing. The doctor answered this question firmly in the negative. He pointed out that the accused’s delusions about his financial situation flowed directly from his mental illness, namely his chronic schizophrenia. As Professor Greenberg put it:

“His motives were not rational but rather irrational because they flowed from his diseased mind which created his paranoid delusions and auditory hallucinations (voices). He was therefore labouring under a total defect of reason because of his delusional motives. His beliefs extended far beyond financial problems because they included persecutory delusions that he and his sister were in mortal danger. He believed he was being spied upon and watched.”

35. Professor Greenberg accordingly confirmed his earlier opinion that the accused has the defence of mental illness available to him.

36. In his oral evidence Professor Greenberg again described the accused’s symptoms at the time of the killing, including the voices which were telling him to kill his sister. When the professor first saw the accused, some eight months after the killing, the latter was still suffering from psychotic symptoms, including auditory hallucinations, notwithstanding that he had been taking antipsychotic medication in the meantime. Professor Greenberg said that this indicated that the accused had treatment-resistant symptoms. This in turn was indicative both of the seriousness of his mental illness and also of a poorer prognosis. The professor envisaged that it would take a lengthy period for the accused to respond to treatment, in other words a lengthy period before he could be released into the community, assuming him to be found not guilty on the ground of mental illness.

37. Dr Richard Furst interviewed the accused at the Long Bay Hospital on 7 May 2014. He also had been provided with all relevant documentary material. He wrote two reports, dated respectively 27 June 2014 and 25 March 2015. In his first report Dr Furst noted that when he saw the accused the latter was blunted in affect, as is often seen in people suffering from schizophrenia. His mood was depressed and he was almost tearful at times. The doctor referred to the accused’s hospital admissions in 2013, and also his assessments after the killing when he was in the Long Bay Hospital. These show him to have been thought disordered at the time. He also had persecutory beliefs, and was convinced that his lawyers and his family were defrauding him of his family fortune.

35. Dr Furst’s diagnosis was the same as that of Professor Greenberg, namely that the accused was suffering from paranoid schizophrenia, a condition which is recognised in law as a disease of the mind. Dr Furst considered that the accused was acutely psychotic at the time of the killing. He was probably aware of his actions, but he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure, believing that he was helping his sister avoid an even worse fate when he stabbed and killed her.

36. Dr Furst therefore concluded that the accused has the defence of mental illness available to him.

37. In his supplementary report, dated 25 March 2015, Dr Furst addressed the question of possible future treatment for the accused. The severity of his schizophrenic illness, Dr Furst considered, meant that the accused would be likely to continue to require structured psychiatric rehabilitation in a hospital setting. He made recommendations as to his placement, with six monthly reviews by the Mental Health Review Tribunal.

38. In his oral evidence, Dr Furst agreed with Professor Greenberg’s assessment that the accused will be likely to require ongoing treatment in a secure facility for a considerable period of time before there could be any question of his release into the community.

Determination

42. The whole of the evidence in the case points in one direction only, namely that when the accused inflicted the fatal stab wounds on his sister he was suffering from a mental illness as defined in the McNaghten Rules. It follows that a special verdict is to be entered that he is not guilty by reason of mental illness.

Explanation

43. Section 37 of the Act requires the presiding judge to explain a number of matters to the jury in a trial where the defence of mental illness has been raised. There being no jury here, this section has no direct application. However for the sake of the record, it should be noted that I was already apprised of those matters.

44. I consider it appropriate, in the circumstances, to very briefly explain the practical effect of the verdict I am about to deliver.

45. A verdict of not guilty on the ground of mental illness does not involve a finding that the accused did not kill the deceased. Indeed, the evidence shows very clearly that he did kill her. The verdict means that, because of the severity of the mental illness suffered by the accused at the time of the killing, he cannot be held criminally responsible for his actions. Accordingly, I shall not be imposing any sentence upon him, as I would have done had he been found guilty of this charge.

46. This does not mean, however, that the accused will be free to re-enter the community. He has been in detention, in a psychiatric unit, until now and he will remain in detention indefinitely. His case will be referred to the Mental Health Review Tribunal. This is an expert body which will regularly review his situation. He will only be released into the community if the Tribunal is satisfied that his release will not seriously endanger the safety of himself or any member of the public.

47. Finally I would like to express the Court’s sincere condolences to all those who have been affected by this terrible tragedy.

Verdict and Orders

48. In relation to the charge that the accused, David John Brown, murdered Therese Ann Brown, I enter a special verdict that he is not guilty by reason of mental illness.

49. In addition I make the following orders:

1. That he, David John Brown, be detained by the Department of Corrective Services until released by due process of law.

2. That the Registrar of the Court notify the Minister of Health of this judgment and order.

3. That the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and provide the Tribunal with the following documentation:

1. A copy of these reasons for verdict and orders;

2. A transcript of these proceedings;

3. A copy of the exhibits tendered at the hearing.

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Decision last updated: 16 April 2015