R v Cave

[2000] NSWSC 865

CITATION:	R v CAVE [2000] NSWSC 865
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70011/00
HEARING DATE(S):	29/08/00
JUDGMENT DATE:	29 August 2000
PARTIES :	REGINA v Daniel Raymond CAVE
JUDGMENT OF:	Barr J at 1

COUNSEL :	Crown: W Robinson QC Accused: AI Parker
SOLICITORS:	Crown: SE O'Connor Accused: Kamilaroi Aboriginal Legal Service
CATCHWORDS:	Criminal Law - accused not guilty on the ground of mental illness
DECISION:	See paragraph 17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

Tuesday, 29 August 2000

70011/00 - REGINA v Daniel Raymond CAVE

JUDGMENT
1   HIS HONOUR: The accused, Daniel Raymond Cave, has been arraigned on the charge that on 22 October 1999 at Glen Elgin he murdered Douglas Cave. He has pleaded not guilty on the ground of mental illness. On 21 August 1999, a day before that fixed for the commencement of his trial, after receiving advice from his counsel, Mr Parker, the accused elected for trial by judge alone. The Crown has consented to that manner of trial. I am satisfied that when he made his election the accused possessed the appropriate mental capacity and received appropriate advice.

2   The accused was born on 13 September 1963 in Glen Innes, and grew up there. He left school at fifteen to take up a job as a roof tiler. He completed his apprenticeship in that trade and continued to follow it for a few years. He also did contract fencing, broke in horses and did other farm work.

3   The offender’s father was of English and Irish extraction and his mother was of Aboriginal descent. His mother died of coronary artery disease in about 1996, and it was at about that time that the accused suffered his first episode of psychotic illness. He began suffering from auditory hallucinations and was admitted to Banksia House, a psychiatric hospital at Tamworth.

4   The voices that he heard spoke to him and to each other. They were dead spirits and were saying that his father was killing his Aboriginal ancestors. The same or other voices told him that he was God’s son and was going to be special one day and take over the world.

5   He had arguments with his father about what the voices were telling him, but did not become violent.

6   He remained in Banksia House for about two months and was treated with drugs.

7   After his release he was followed up for twelve months and was faring well. He was not hearing the voices. He stopped taking his medication.

8   In 1997 the symptoms repeated themselves and he was admitted to hospital again, this time for three weeks. Again he was discharged, feeling well, and was followed up for six months. He stopped seeing the psychiatrist then, because he was feeling well, and stopped taking the drugs prescribed for him.

9   In about June 1999 he took some amphetamines and about one week before the events giving rise to the charge he smoked cannabis.

10   The voices spoke to him again and on Friday 22 October 1999 he was so concerned about what they were telling him that he tried to get his father to admit that he had killed the accused’s aboriginal ancestors. He dragged him out of the house where they lived and began assaulting him, trying to make him admit what he had done. He dragged him to the front of the house, bound his legs with rope and tied him to the back of his own car. He drove the car off, dragging him for a short distance. He got out and looked at him. His father was still breathing. He drove a further five hundred metres to a bridge and there stopped. His father was still alive. He untied the rope from the car and fastened it to the guardrail, then threw his father over the bridge and left him hanging there. He went home and had a cup of coffee and a cigarette. He returned to the bridge and it seemed to him that his father was dead, so he released the rope and allowed his father’s body to fall to the creek bed below. He climbed down, dragged the body under the bridge and covered it with rocks.

11   He drove some forty-five kilometres to Glen Innes and told relatives that he had just killed his father. The relatives informed the police, who went to look for the accused. When they stopped him he gave himself up. They asked him where his father was and he told them everything that had happened. He took them and showed them where he had buried his father’s body.

12   The accused has been seen by Julie Hendy, neuro-psychologist and by Dr Bruce Westmore, psychiatrist. He told Ms Hendy that God and the spirits had been talking to him and telling him that his father had killed his ancestors. He described the sequence of events that led to the death of his father. He now dreams about his father. He felt very sorry about what had happened. By the time the accused saw Ms Hendy, of course, he had been arrested and appropriate drugs were being administered to him. Ms Hendy found that he was of low average intellectual ability and that his behaviour was socially appropriate. Ms Hendy formed the view that he was answering questions to the best of his abilities. She thought that there were no features of any organic brain impairment. He was lucid and was not exhibiting features of his schizophrenia.

13   The accused told Dr Westmore that he was feeling sad and sorry about what had happened. He gave Dr Westmore a detailed account of the attack which I have summarised above. He told him that he had stopped drinking six years ago after being diagnosed with hepatitis C. He told him about the amphetamines and the cannabis that I have mentioned. Dr Westmore observed that the accused’s mood state was subdued but thought that he was not suffering from a major depressive illness. He was no longer suffering auditory hallucinations, they having stopped about five months earlier. He no longer had any delusional beliefs about his father. They, too, had resolved several months earlier. He was a generally alert and attentive historian.

14   Dr Westmore reviewed the documents recording the accused’s two previous admissions to Banksia House and his scheduling under the Mental Health Act on those occasions. He thought that the accused had responded well to anti-psychotic medication over the last six months. He noted the accused’s history of chronic schizophrenia complicated with non-compliance with medication and heavy cannabis use. He felt that the accused had been unwell for some time before he killed his father.

15   Dr Westmore’s opinion is that the accused was suffering schizophrenia when he killed his father and that the episode may have been precipitated by his use of cannabis and amphetamines. He considered that the disease would have totally deprived the accused of the capacity to know that he ought not to do the act causing death and that the act was wrong. Accordingly, Dr Westmore is of the view that the defence of mental illness is available to the accused.

16   I am satisfied beyond reasonable doubt that the accused did the act which caused the death of Mr Cave and that when he did so he intended to kill him.

17   I am satisfied about the existence of all the facts upon which Dr Westmore has expressed his opinion. I accept Dr Westmore’s opinion and I think that the accused has established the defence of mental illness. I am satisfied that when he killed his father he did not know that he ought not to do so and that it was wrong. Accordingly, I find that the accused is not guilty on the ground of mental illness. I order that he be detained in strict custody in Long Bay hospital and such other place as the Mental Health Review Tribunal shall determine until released by due process of law.

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Last Modified: 09/27/2000