R v Cox

[2018] NSWSC 200

Supreme Court

New South Wales

Medium Neutral Citation:	R v Cox [2018] NSWSC 200
Hearing dates:	12, 13 and 14 February 2018
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Common Law
Before:	Hidden AJ
Decision:	Not guilty by reason of mental illness. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained at the Mental Health Unit of the Metropolitan Remand and Reception Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.
Catchwords:	CRIMINAL LAW – murder - special hearing – plea of not guilty by reason of mental illness -
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Hawkins v The Queen (1994) 179 CLR 500 R v Ronald Ian Cox [2017] NSWSC 1097 R v Zvonaric (2001) 54 NSWLR; [2001] NSWCCA 505 The King v Porter (1936) 55 CLR 182
Category:	Principal judgment
Parties:	Crown Ronald Ian Cox (Accused)
Representation:	Counsel: Mr D Barr (Crown) Ms C Davenport SC (Accused)   Solicitors: Office of Director of Public Prosecutions (Crown) Peter Katsoolis Lawyers (Accused)
File Number(s):	2016/135900
Publication restriction:	No

Judgment

1. HIDDEN AJ: The accused, Ronald Ian Cox, is charged with the murder of Wayne Burton-Smith at Sutherland between 29 April and 3 May 2016. On 18 August 2017, Campbell J found him unfit to be tried for that offence: R v Ronald Ian Cox [2017] NSWSC 1097. On 27 October 2017, the Mental Health Review Tribunal found, pursuant to s 16(1) of the Mental Health (Forensic Provisions) Act 1990, that Mr Cox remained unfit to be tried and would not become fit within the ensuing 12 months. Accordingly, I have presided over a special hearing, pursuant to s 19 of that Act, to determine whether, on the limited evidence available, Mr Cox committed the offence charged. Relevantly for present purposes, one of the verdicts available to me by s 22(1)(b) of the Act is not guilty on the ground of mental illness. Whether that should be the verdict is the only issue in this case.

2. The evidence in the case is undisputed and, for that reason, I have received almost all of it in documentary form. However, some oral evidence was given by the officer in charge of the investigation, Detective Senior Constable Paul Baglin, and I viewed some CCTV footage of an unrelated incident, to which I shall refer in due course. In addition, I heard oral evidence from two respected forensic psychiatrists, Dr Jonathan Adams and Dr Olav Nielssen, whose reports I also received.

3. I was content to proceed in this relatively informal way, given the limited issue to be determined, and guided by the observations of Spigelman CJ in R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 at [2]-[19] (3-6). This was the approach adopted by the Crown prosecutor and counsel for the accused, Ms Davenport SC, both of whom are very experienced in this jurisdiction.

The evidence

4. The accused, who was 50 years old at the relevant time and is now 51, has a long history of mental illness. He was living in a Housing Commission unit in Sutherland, and he was a long term client of the Sutherland Mental Health Service within Sutherland Hospital. He knew the deceased, who had a unit in the same block and who also had contact with the Mental Health Service for alcohol related brain damage. At the relevant time, however, the deceased was staying in the accused’s unit. The deceased was 60 years old.

5. It is the Crown case that at some point between 29 April and 3 May 2016, the accused assaulted the deceased inside the unit by punching him and hitting him in the head with a chair and a bedhead, causing his death. This is not in dispute and, in any event, is clearly established by the statements of witnesses and the reports of the two forensic psychiatrists in the Crown bundle, Exhibit A. There is no need to refer to this material in detail.

6. The accused and the deceased were seen together in a street in Sutherland in the late afternoon of 19 April 2016. During the night of 2 May, Mr Damian O’Driscoll, who occupied another unit in the same Housing Commission building heard “two or three loud bangs like someone was hitting the wall” coming from inside the accused’s unit.

7. In the early hours of 3 May 2016, the accused attended the Emergency Department at Sutherland Hospital. He was complaining of some delusional symptoms, difficulty with sleeping and loneliness. He spoke to a clinical nurse specialist, Ms Jane McNeilly, who knew him. She noted that his left hand appeared to be bruised and swollen. He said that he had had a fight with a friend and had punched him in the face because the friend had “tried to come on to him”. At different times during the day he spoke to a number of other clinicians at the hospital, most of whom also knew him.

8. Later in the morning he saw Nurse Alyce Kirk. He told her that he needed help because he had had an argument. She noticed injuries to his hands and, when she asked him what had happened, he said “I don’t know, I think I got into a fight”. He said he had been in the Emergency Department but added, “I got sick of waiting, my head wasn’t right so I came around to see you”.

9. At about 1 pm he saw Nurse Erin Gerrard in the Emergency Department. She observed him to be rambling and difficult to understand. He said something like, “I’m not sure whether I need to call an ambulance. I hit someone on the head with a pole in my apartment and they have been there for a few days ….” Ms Gerrard asked him if he wished to contact the police and he said that he did. She contacted Miranda police station and passed the phone to him. He spoke to a general administration support officer, Sharon Hamiling. He told her that he had “hit Wayne Burton on the head and he is laying on the floor and not moving”. She described him as “rambling” and found him very hard to understand. She passed the phone to Senior Constable Christopher Lewis.

10. The accused told Senior Constable Lewis that there were “guys who climbed onto my balcony. I got the shits with Wayne and just snapped. I hit Wayne with an iron bar”. He identified Wayne as Wayne Burton-Smith and said that the incident had occurred at his place. Asked if the deceased was unconscious, he said that he did not know, adding that he had put a blanket over him. He said that the incident happened “in the last couple of days”, and supplied his address to the officer. He also said, “I hope I didn’t kill him”. Asked why he had put a blanket on the deceased, he said “I don’t know. I panicked. I’m not a killer ….”

11. The accused’s case manager at the hospital was Mr Adam Coates. He saw the accused briefly in the morning of 3 May. He noticed that the accused had a backpack with him, and the accused told him that he had had enough of his place, that too much had happened there, and that he was going to leave and go to Perth. In the afternoon, Mr Coates was called by Senior Constable Lewis, who told him about the accused’s call to the police station. Thereafter both Mr Coates and Nurse Kirk saw the accused again, and he made significant admissions to both of them. There is no need to recount the whole of his conversations with them.

12. To Ms Kirk he said of the deceased, “I think he’s dead…I hit him with a chair. He hasn’t moved for two days.” Asked why he hit the deceased, he replied, “He was going to rape my family. He said he was going to kill my mum. He said he was going to knock my teeth out”. In a later conversation he told Ms Kirk that the deceased was his friend and he didn’t want him to die. However, he went on to say:

“I hit him with the chair in the back of the head. His skull was cracked and his brain was bleeding. When I hit him, the blood spurted out and splattered on my face and my shirt and the wall ….”

13. At one stage the accused spoke to Mr Coates and Ms Kirk together. Not surprisingly, their recollections of what was said differ somewhat, although Mr Coates made some notes of the conversation that same day. However, extracting the salient parts of his account, it emerges that the accused said the following:

• “Wayne was going to rape my family and kids. He was going to hurt me. You know me. I don’t hurt people. I don’t know why this happened, Wayne said he would rape my kids ….”

• “I hit him in the head. Then he got up and pissed all over my lounge. I asked him if he was going to hurt my family and he just sat there. He could have said ‘no’ but he didn’t say anything. I punched him again and when he was lying face down I hit him in the back of the head with a chair. I just kept hitting him over and over again. I just went crazy. I cracked his brain open and blood squirted all over the place”. He said that he later returned to the body and hit it with “a bedhead … I hit him in the temple”.

• He said repeatedly that he wasn’t sure if he killed the deceased. According to Mr Coates, at one point he said, “I poured water and beer over his face … I poured water on his face in case he wasn’t dead so he would get pneumonia and would die anyway”. Ms Kirk’s recollection was that he said that he had poured beer and water on the deceased “but he didn’t wake up…I thought he might get pneumonia so I put a blanket on him”.

14. He said that the deceased had tried to kiss him when he got to the unit, adding, “you know he’s raped someone before.” He named that person as a former patient at the Mental Health Unit. He said that the deceased had been staying at his unit for a few days, but he told him to get out, whereupon the accused yelled at him and said he would punch him. He said that after the attack upon the deceased, he cleaned the wall with a shirt and changed his clothes. He said that he had burnt his documents in the laundry, taking the fire alarm away because it was too noisy. Asked whether he intended to burn the unit down, he said that he did not, adding that he packed his favourite things and wanted to go to Perth.

15. During the afternoon of 3 May police gained access to the accused’s unit, There was a strong, foul odour and the unit was untidy and very dirty. The deceased was found on the floor in the lounge room under a number of damp blankets, rugs and items of furniture. There was blood splatter on the walls. Also found in the lounge room was a metal framed chair which was blood stained, and a metal frame bedhead, also blood stained, was found in the hallway. In the laundry tub there were remnants of fabric which appeared to have been burned.

16. The accused was arrested at the Sutherland Mental Health Unit that same afternoon. There was a brief recorded conversation with Detective Senior Constable Prince, which is of no significance for present purposes. He was taken to Sutherland police station, where he declined to participate in an electronically recorded interview after receiving legal advice. However, in the early evening, Constable Ricketts, working as a custody assistant, heard the accused speak on two occasions, apparently to him, but unprompted by him. On the first occasion, the accused said, “He was going to throw me over the balcony at my place. I said, ‘Wayne, what are you doing?’ He said, ‘I just like you Ron.’” On the second occasion, the accused said, “We were drinking all night and then we had a fight and punching and yeah, that’s it.”

17. A post-mortem examination of the deceased determined that the direct cause of death was multiple blunt force injuries to the head.

18. There is evidence that in the period leading up to the killing, the accused’s mental state was deteriorating. His half-sister, Debbie Foreshew, lived at Port Macquarie. She told Dr Neilssen that about a month before the offence, the accused arrived unexpectedly at her home. He pulled crosses and stuffed toys about of a bag and, generally, his behaviour was very erratic. Significantly, his mother, Noela Wallington, described in a statement a phone call she received from him on 28 April 2016. He asked her if she was “ok” or “had someone hurt me?” She told him that of course she was ok, adding “Why wouldn’t I be?” This call, of course, is consistent with the accused fearing that the deceased might harm his mother. Ms Wallington received another call from him on 1 May but it seems that there was nothing unusual about that call.

19. The accused sometimes frequented a café in Sutherland, where he was known to staff. At around midday on 30 April, he assaulted a man named Justin Piper outside that café. Apparently the accused knew Mr Piper, who had himself been a client of the Mental Health Service for some years. On this occasion, the accused punched Mr Piper several times, causing him to fall to the ground, and then kicked him to the body and the head. Mr Piper was not seen to do anything to provoke him and there seems to have been no rational reason for the attack. People in the vicinity intervened, and the accused walked away, apparently unperturbed. Two staff members of the café made statements about this incident and it was also captured on CCTV. That footage was admitted as Exhibit C.

20. The accused’s attack upon Mr Piper bears some resemblance to that perpetrated upon the deceased.

The psychiatric evidence

21. Both Dr Nielssen and Dr Adams assessed the accused in relation to his fitness to stand trial and in relation to the defence of mental illness. Apart from interviewing the accused himself, both doctors had access to relevant medical records. In addition, Dr Nielssen spoke to Ms Foreshew and to the accused’s treating psychiatrist at Sutherland Hospital, Dr Babidge. In evidence is a comprehensive report of Dr Nielssen of 14 January 2017. Dr Adams prepared four reports, of which the reports of 16 May 2017 and 8 February 2018 are of immediate relevance. He also had the report of Dr Nielssen, with which he agreed.

22. Their evidence is that the accused suffers from chronic schizophrenia. It had its onset in his late teens, and between March 1984 and March 2016 he was admitted to the Mental Health Unit at Sutherland Hospital on numerous occasions. He has also undergone periods of rehabilitation at Sutherland Hospital and Bloomfield Hospital. Symptoms of the illness have endured despite treatment, and it has become more resistant to treatment over its course. It has been characterised by paranoid delusions of various kinds, but most persistently through auditory hallucinations.

23. The accused also has a history of the abuse of alcohol and a variety of illicit drugs, giving rise to a diagnosis of substance use disorder. In his early twenties he was involved in a motor bike accident, from which he appears to have suffered a frontal lobe injury. Neuropsychiatric testing in 2013 revealed a degree of cognitive impairment. Dr Nielssen diagnosed acquired brain injury, although noting that it would be difficult to separate the effects of a traumatic brain injury from those of long term substance abuse and schizophrenia itself. Dr Adams gave evidence that substance abuse and cognitive impairment compound the effects of the psychiatric illness.

24. To both psychiatrists the accused said that he did not recall what his state of mind was at the time of the offence, and for their conclusions they relied upon the evidence in the Crown case. He told Dr Nielssen that he had been off his medication, and had been smoking pot and drinking, at the time. Dr Nielssen thought it likely that the accused’s attack upon the deceased was influenced by delusional beliefs, together with the effect of impaired frontal lobe function. Addressing the elements of the defence of mental illness, he concluded in his report:

“Hence I believe he has the defence of mental illness open to him for the charge of murder. He has a disease of the brain in the form of the neurodegenerative disorder, chronic schizophrenia, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. His mental illness resulted in a defect of reason in the form of delusional beliefs arising from auditory hallucinations and other perceptual disturbances, and gross impairment in the capacity for logical reasoning. He was probably aware of the physical nature of his actions from the purposeful nature of the assault. However, on the balance of probabilities, at the time of the offence he was deprived of the ability of reasoning with any measure of sense or composure about the moral wrongfulness of his actions.”

25. In his report of 8 February 2018, Dr Adams also addressed the elements of the defence. He characterised schizophrenia as a “disease of the mind”, and added:

“On balance, in my opinion it is reasonable to conclude that Mr Cox was most likely suffering from persisting symptoms of schizophrenia at the material time of the alleged offending behaviour. I believe it is likely that he was experiencing persisting thought disorder, and possibly delusional beliefs. It might well be the case that there is a nexus between Mr Cox’s likely delusional beliefs and the alleged offending behaviour, although at this point I am not able to confirm this.”

26. Dr Adams also reported that “from a psychiatric perspective”, the concept of defect of reason is understood “in terms of someone’s decision making capacity.” He continued:

“I believe it is reasonable to conclude that Mr Cox’s decision-making capacity would have been impaired to a significant degree during the period of the alleged offending behaviour. It is commonly understood that schizophrenia impacts deleteriously upon someone’s judgement and decision-making capacity, and this is repeatedly documented in the medical record regarding Mr Cox’s long-standing psychiatric history.”

27. Dr Adams concluded:

“Given the unknown variables regarding Mr Cox’s mental state at the material time of the alleged offence, at this point I am unable to confirm whether he understood the nature and quality of the alleged offending behaviour. Notwithstanding this, in my view it is most likely that he did not have the requisite capacity to understand the moral wrongfulness of his behaviour and reason with a moderate degree of sense and composure. I have come to this conclusion given my concerns regarding Mr Cox’s capacity for rational thought and judgment, as already discussed.

Therefore, I believe it could be argued that Mr Cox has the defence of not guilty by reason of mental illness available to him.”

Findings

28. On the limited evidence available, I am satisfied beyond reasonable doubt that the accused caused the death of the deceased by a deliberate act (or acts). The question which then arises is whether he was criminally responsible for that act. It is at this point that the defence of mental illness falls to be considered: Hawkins v The Queen (1994) 179 CLR 500. I am satisfied on the balance of probabilities that the defence has been made out.

29. I accept the views of the forensic psychiatrists who, of course, are very experienced in the forensic field and well acquainted with the elements of the defence of mental illness. Some aspects of the accused’s explanation for the attack upon the deceased are not, on their face, delusional. Whether the deceased did make sexual overtures to him or threatened him with violence of some kind I cannot say, but neither proposition is inherently fanciful. Of course, those aspects of his generally confused account could hardly explain the extreme measure of violence he had meted out to the deceased.

30. However, I accept that his belief that the deceased was going to kill his mother or rape his family and children was delusional. I find that for two reasons: firstly, there is nothing to suggest that his mother or any other member of his family was in any way threatened by the deceased and, secondly, the accused does not have any children.

31. In all the circumstances, and having regard to the evidence of the pattern of irrational behaviour in the weeks leading up to the offence, I am satisfied that at the time of the killing the accused was in the disordered state of mind described by the psychiatrists, and that that mental state was engendered by his mental illness.

28. The accused’s actions in attempting to wash the blood from the wall, and perhaps burning the clothes he had been wearing at the time of the attack, suggest an attempt to cover his tracks. These steps, together with his leaving the unit with the intention of going to Perth, convey that he might have had some sense of the unlawfulness of what he had done and a fear of the consequences he might face. Nevertheless, I am satisfied that at the time of killing he was unable to appreciate that what he was doing was morally wrong. To adopt the time honoured expression of this requirement by Sir Owen Dixon in The King v Porter (1936) 55 CLR 182 at 189-90, adopted by Dr Nielssen and Dr Adams in their reports, he could not reason “with a moderate degree of sense and composure” about the “right or wrongness, according to ordinary standards, of the thing which he was doing...”

29. Accordingly, I find the accused not guilty by reason of mental illness. I shall consult the parties about the order I should now make.

[Appropriate order discussed with counsel]

34. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained at the Mental Health Unit of the Metropolitan Remand and Reception Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

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Decision last updated: 28 February 2018