R v Dargin

[2008] NSWSC 751

CITATION:	R v Dargin [2008] NSWSC 751
HEARING DATE(S):	Friday 11 July 2008
JUDGMENT DATE :	25 July 2008
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J at 1
DECISION:	Not guilty by reason of mental illness
CATCHWORDS:	CRIMINAL LAW: Trial by judge alone - murder - defence of mental illness
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act (ss37, 39)
CASES CITED:	R v Derbin [2000] NSWCCA 361 The King v Porter (1933) 55 CLR 182
PARTIES:	Regina (DPP) Gregory James Dargin (accused)
FILE NUMBER(S):	SC 2008/1645
COUNSEL:	S Huggett (Crown) C Loukas (accused)
SOLICITORS:	Director of Public Prosecutions Aboriginal Legal Service (NSW/ACT) Limited (accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Friday 25 July 2008

2008/1645 Regina v Gregory James Dargin

REASONS FOR VERDICT

1 HIS HONOUR: The accused, Gregory James Dargin, has been tried before me, sitting without a jury, for the murder of the man he knew as his father, Gregory John Gilchrist. In the afternoon of 7 September 2006, he stabbed Mr Gilchrist in the neck with a steak knife, causing his death. There is no dispute that he acted deliberately, with the intention to kill, and that the elements of murder are made out. In any event, the material before me establishes those elements beyond reasonable doubt. The only issue is whether he has the defence of mental illness, although there is no dispute about that matter either.

2 The accused was born on 5 February 1984 and is now twenty-four years old. Since infancy, he was cared for by his maternal aunt, Mrs Patricia Gilchrist, who was married to the victim. Mr and Mrs Gilchrist were effectively his parents, and he referred to them as “mum” and “dad”. They also raised several of his siblings as their own children.

3 In August 1998, when the accused was fifteen years old, he suffered a head injury in a car accident. He was unconscious for some minutes. He had several seizures, but was never prescribed any medication. He began to abuse drugs in his early teens, starting with cannabis and moving on to amphetamines, heroin and methamphetamine or “ice”. In his later teens he also started to take pills, including valium and serapax.

4 From 2003, the year he turned nineteen, his drug use brought him into conflict with the law. Over the ensuing years, he was convicted of some relatively minor offences and sentenced to short terms of imprisonment. Mrs Gilchrist observed a deterioration in his physical appearance and his mood. There were incidents of irrational behaviour. He would frequently damage property in the house, and on occasions police had to be called.

5 In 2006, he was still using a variety of drugs regularly. He was in custody between April and July of that year, for reasons which are of no present relevance. While in custody, he reported hearing voices telling him that prison officers were going to kill him and that, if he did not hit people, he himself would be assaulted. He said that, when he looked at people, their eyes would squint and glow because the devil was inside them. He was in fact involved in numerous assaults during this period. He spent his last month of custody in Long Bay Hospital and was prescribed anti-psychotic medication.

6 Following his release, his experience of the voices and his paranoid feelings continued. In late July he was admitted to Cumberland Hospital with psychotic symptoms, and in early August he was transferred to a mental health unit at Blacktown Hospital. During this period his experience of the voices abated, but he continued to have paranoid feelings, believing that people had the devil inside them and that he was authorised by God to “get them”.

7 He was discharged from the mental health unit on 7 August 2006. He was prescribed medication but, unfortunately, he stopped taking it and reverted to the use of illicit drugs. There was to be contact with the mental health service in his area, but that did not eventuate. He began again to hear voices commanding him to kill, as the devil was inside people.

8 In the small hours of the morning of 9 August 2006, he phoned police and asked that they come to his home. He told them that he suffered from paranoid schizophrenia, and that he did not want to hurt his family. He complained of hearing voices in his head telling him to kill or to be killed. He asked to be returned to the mental health unit at Blacktown Hospital. Shortly afterwards, Mrs Gilchrist rang police to say that he had woken her, asking if he could sleep on her bedroom floor because he was hearing voices telling him to kill his family. Police attended and conveyed him to the mental health unit. There, he told medical staff that he was “seeing shadows” and hearing voices saying that he must kill his family, and that “they are the devil”.

9 He was discharged from the unit on 14 August and, again, ceased taking his medication and reverted to the use of illicit drugs. His experience of voices and paranoid thoughts returned. He came to believe that the TV was sending him messages, that he was being followed, that his family and other people intended to kill him, and that they would do so unless he killed them.

The offence

10 It is against this background that the tragic events of 7 September 2006 must be understood. His use of illicit drugs had been continuing. He had not slept for several days because he was vigilant, believing that someone in his family was going to kill him. During the morning, Mrs Gilchrist observed him to be quiet and to appear “uneasy and not quite himself”. He walked up and down the stairs of the premises, believing that the family were passing signals. He was hearing voices from God commanding him to kill or be killed.

11 In the early afternoon Mrs Gilchrist left the house to go shopping. The accused remained there, with Mr Gilchrist, his sister, Patricia Dargin and her three children. Mr Gilchrist was sitting in the lounge room. Ms Dargin was upstairs with her children.

12 It was in the lounge room that the accused killed Mr Gilchrist. He stabbed him once to the left side of the neck, penetrating the left side of the carotid artery and jugular vein and causing extensive bleeding. Mr Gilchrist got up and walked a short distance before he collapsed.

13 The accused went upstairs and said to his sister, “Dad made me do it.” He appeared calm, and he then lay down on his bed. Ms Dargin ran downstairs, where she saw Mr Gilchrist in what must have been his dying moments. He said to her, “Gregory put a knife through me.” She raised the alarm, a neighbour called the ambulance and police, and she went to the Toongabbie shops to locate Mrs Gilchrist.

14 By the time ambulance officers arrived, Mr Gilchrist had died. Police attended the scene, and found the accused lying on his bed. When arrested and cautioned, the accused said, “The devil told me to.” He was conveyed to Blacktown police station where, on legal advice, he declined to be interviewed.

15 A blood sample was taken from the accused on the morning of 8 September. Subsequent analysis detected signs of ingestion of a variety of drugs.

Mental state

16 As I have said, the only issue is whether the accused has the defence of mental illness. He bears the burden of establishing that defence on the balance of probabilities. The exposition of the defence in the familiar M’Naghten rules, in the language of the nineteenth century, uses expressions such as “defect of reason” and “disease of the mind”. Recasting those rules in twenty-first century language, he must establish that he was suffering from a mental illness at the time of the offence and that, because of that mental illness, he did not understand that what he was doing was wrong. That lack of understanding has never been better expressed than it was by Sir Owen Dixon in his summing-up to a jury in The King v Porter (1933) 55 CLR 182, also a murder case. Dealing with the state of mind of the accused in that case, his Honour said (at 189-90):

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 everyday standards of reasonable people.

17 It is clear from the background which I have recited that the accused was in a disordered state of mind at the time of the killing. According to Mrs Gilchrist, he had had a good relationship with her husband and nothing in the evidence points to any rational motive for his acting as he did. The only explanation for his behaviour is that he was driven by delusional beliefs, and was in a state of mind in which he was unable to reason about the morality of his actions.

18 More importantly, three experienced forensic psychiatrists have provided comprehensive reports, each of them diagnosing a recognised mental illness and arriving at a conclusion supporting the defence. Dr Olav Nielssen and Dr Bruce Westmore were engaged by the accused’s legal representatives, and Dr Stephen Allnutt was qualified by the Crown. It is sufficient to quote relevant extracts from each of those reports.

19 Dr Nielssen found the accused to be suffering from chronic schizophrenia, post-traumatic brain damage and substance abuse disorder. He reported:

The diagnosis of schizophrenia is based on the history of typical symptoms of schizophrenia and Mr Dargin’s presentation at interview. His illness may have been a complication of a serious head injury at the age of fifteen, as psychotic illness is known to be three times more likely after a significant head injury. The acute episode of illness was probably induced by a combination of abuse of drugs known to induce psychosis in susceptible individuals and non-adherence to prescribed antipsychotic episode (sic – medication?).

…

The diagnosis of post traumatic brain damage is based on the history of a head injury in a car accident that resulted in loss of consciousness of five minutes and was complicated by seizures and cognitive impairment.

The diagnosis of substance abuse is based on the abuse of illicit drugs resulting in social and psychological complications, including criminal convictions and exacerbation of mental illness.

I believe that on the balance of probabilities Mr Dargin has the defence of mental illness open to him, as he has a disease of the brain, schizophrenia, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. He reported typical symptoms of mental illness in the form of hallucinations of voices that resulted in a defect of reason in the form of the delusional belief that people around him intended to kill him. His delusional belief deprived him of the knowledge that stabbing his uncle was wrong, as he believed his uncle planned to kill him.

20 Dr Westmore diagnosed schizophrenia and substance abuse disorder. He concluded:

Mr Dargin was mentally ill at the time he killed the deceased, he was acting on command hallucinations and he had paranoid thoughts in relation to the deceased. The correct defence is in fact that of mental illness. He was suffering from a disease of the mind. The disease of the mind, namely an acute exacerbation of a schizophrenic illness, would have totally deprived him of the capacity to know that he ought not to do the act and possibly to control his actions towards the victim.

21 Dr Allnutt diagnosed drug induced psychosis with a differential diagnosis of schizophrenia and schizoaffective disorder. Schizoaffective disorder, he explained, is a psychosis caused by a medical condition, in this case the accused’s brain injury. He did not consider that the accused was suffering purely from a drug induced psychosis, because of the persistence of his symptoms over a reasonably lengthy period prior to the offence. In his opinion “the disease of the mind” was “predominantly one of psychosis”. He wrote:

The hallmark feature of psychosis is a relative loss in capacity for reasoning and thus he would be regarded as having had a “defect of reason” at the material time …

22 Dr Allnutt concluded that, at that time, the accused’s “defect of reason was of a nature and severity that he lacked capacity to know the wrongfulness of his actions”. After referring to his delusional symptoms over the period leading up to the killing, the doctor continued:

These symptoms would have affected his capacity to reason about the wrongfulness of his actions because of their religious undertones (delusional belief in God’s commands were probably regarded by him as unquestionably right even if that command was homicidal); he felt under duress for delusional reasons (he would die if he never acted on the command); it is probable that he saw few options (because he was unable to think them through due to his mental illness) so that at the time of the alleged offence he would have been incapable of reasoning about wrongfulness about his decision to stab his uncle with a moderate degree of sense of (sic) composure.

23 To the extent that the accused’s mental state was induced by his use of illicit drugs, that is not inconsistent with the defence. The relevant principles about this aspect were re-stated, with reference to authority, by Mason P in R v Derbin [2000] NSWCCA 361 at [70]–[73].

24 In the light of this material it is clear that the defence of mental illness has been made out. The Crown prosecutor, properly and realistically, put no argument to the contrary.

Verdict

25 I find the accused not guilty by reason of mental illness. In so doing, pursuant to s37 of the Mental Health (Criminal Procedure) Act, I have regard to the legal and practical consequences of that finding. It is necessary that I make a consequential order under s39 of the Act, and I shall consult counsel about the terms of that order.

26 I extend my sympathy to all the members of Mr Gilchrist’s extended family, who must be deeply affected by this tragic event.

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