R v Doug McDonald

[2012] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation:

R v Doug McDonald [2012] NSWSC 875

Hearing dates:

13 April 2012

Decision date:

13 April 2012

Before:

Bellew J

Decision:

1The accused is not guilty on the grounds of mental illness.

2Pursuant to the provisions of s 39(1) of the Mental Health (Forensic Provisions) Act 1990, the accused is to be returned to his present place of custody and that he be detained there, or at such other place as is deemed appropriate according to law, until such time as he is released by due process of law.

3Pursuant to subs 39(3) of the Mental Health (Forensic Provisions) Act 1990, the Registrar of the Court is to notify the Minister for Health and the Mental Health Tribunal of the terms of the order that has been made pursuant to s 39(1).

Catchwords:

CRIMINAL LAW - Murder - Mental Illness

Legislation Cited:

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

Cases Cited:

Mizzi v R (1960) 105 CLR 659
R v Ayoub [1984] 2 NSWLR 511
R v Coleman [2010] NSWSC 177
R v Michaux (1984) 13 A Crim R 173
R v M'Naughton (1843) 8 ER 718
R v Porter (1933) 55 CLR 182
R v Stiles (1990) 50 A Crim R 13
Taylor v R (1978) 22 ALR 599

Category:

Sentence

Parties:

Regina
Doug McDonald (Offender)

Representation:

P Barnett SC - Crown
C Smith - Offender
Solicitors:

File Number(s):

2010/377959

Judgment

1.   On 13 April 2012, the accused, Doug McDonald, was arraigned before me on an indictment alleging that on 12 November 2010 at Nelson Bay in the State of New South Wales he did murder Bruce McDonald. To that indictment the accused pleaded not guilty.

2. Pursuant to s132 of the Criminal Procedure Act, the accused, on 17 November 2011, had made an election that his trial be conducted by judge alone. The accused's election, signed by him and also signed by the Crown and dated 17 November 2011, was placed before me at the start of the trial.

3. The accused has raised a defence of mental illness within the meaning of Part 4 of the Mental Health (Forensic Provisions) Act 1990.

4. My attention has been drawn in particular to s 37 of the Mental Health (Forensic Provisions) Act (1990), which sets out an obligation on the part of a trial judge to explain to a jury a number of matters which are enumerated in the section. I, of course, am sitting without a jury, as I have indicated, but lest there be any doubt about the matter, I have taken into account the provisions of s 37.

5.   Those provisions were conveniently summarised by Hall J in R v Coleman [2010] NSWSC 177 at paragraphs 69 and following. His Honour said:

"The legal and practical consequences of a finding that the accused is not guilty on the ground of mental illness may be shortly stated.

The statute which governs cases like this, namely, s 39(1) of the Mental Health (Forensic Provisions) Act, requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient, and falls under the supervision of a body called the Mental Health Review Tribunal.

The Mental Health Review Tribunal consists of a president and his or her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist, and the third member is a person who has suitable qualifications or experience for the task.

The tribunal is required to review the accused's case as soon as practicable after an order is made for his detention in strict custody. The tribunal may make orders as to his continued detention, care or treatment, or as to his release.

The tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person, or any member of the public, would not be seriously endangered by his release.

The Minister for Health and the Attorney-General may appear before the tribunal, or make submissions to the tribunal, in relation to the possible release of the accused.

Where an order for release is not made, the tribunal orders result in continued detention, care and treatment in a place and in a manner specified by the tribunal.

After the initial review, the tribunal must, at least once every six months, again review the case and make orders as to the accused's continued detention, care or treatment in a hospital, prison, or other place, or as to his release.

If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated, so that he may be a serious danger to others, a further order may be made by the tribunal for his apprehension, care and detention.

The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in education and therapeutic programs to ensure that the accused is properly cared for.

Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.

Security conditions (as necessary) are in place while the accused is detained in hospital, prison or other place, or if he is allowed to be temporarily absent from the place of detention.

The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time.

However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered."

6. I have taken into account all of those matters, in the manner in which I am required to do by s 37.

7. In addition, I am mindful of the provisions of s 133 of the Criminal Procedure Act which govern the verdict of a judge in a judge alone trial, and in particular, s 133(3) which provides that 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.

8. To the extent that that provision captures the provisions of s 37 of the Mental Health (Forensic Provisions) Act (1990), I record the fact again that I have taken the provisions of s 37 into account.

9.   The Crown case against the accused is contained in the material which was tendered before me and marked exhibit A. That included, amongst other things, a report of Dr Stephen Allnutt, psychiatrist, to which I will refer later in this judgment.

10.   The defence case was contained in two reports of Dr Olav Nielssen, which were marked exhibit 1.

11.   The entirety of the material for both the Crown and the accused was tendered by consent, and indeed, I should record the fact such material was provided to me in advance of today, with the consent of both parties, in order that I could read it prior to dealing with the matter this morning.

12.   In that regard I commend both the Crown, and counsel for the accused, for the efficient and helpful way in which the matter has been approached.

13.   It was conceded by Mr Smith of counsel, who appears for the accused, that the material relied upon by the Crown and tendered as exhibit A was sufficient to establish, beyond reasonable doubt, that the accused was responsible for the murder of the deceased. Having read the material, that is a concession which is properly made, but equally, it is appropriate that I summarise at least parts of that evidence.

The Evidence

14.   The evidence can be divided into the following categories.

(1)   The evidence of the events of the evening of 11 November 2010 and the early morning of 12 November 2010.

(2)   The evidence of the latter part of the morning of 12 November 2010, going to the murder.

(3)   The medical evidence pertaining to an admission into hospital of the accused in June of 2007.

(4)   The Crown's medical evidence as to the mental state of the accused.

(5)   The medical evidence relied on by the accused as to his mental state.

The Events of 11/12 November

15.   I turn then to consider briefly the evidence of the events of the evening of 11 November 2010 and the early morning of the 12th.

16.    There is evidence that on the evening of 11 November 2010, the accused was present with a number of other persons at a hotel in Nelson Bay. He left with those persons at closing time and went with them to an area called Fly Point, where they continued drinking. After that, some, but not all, of the persons in the group returned to the nearby premises of one of them.

17.   According to the occupant of those premises, she asked the accused to leave, and he refused. It is evident that an altercation then ensued, firstly between the accused and the occupant of the premises, and secondly between the accused and another member of the group.

18.   In the course of that altercation, the accused suffered some injury to his head and face.

19.   The accused ultimately left the premises and was collected by a taxi. At the time of collecting the accused, the taxi driver observed what she described as a lump on the left hand side of his head, about two inches long and one inch wide. She also told police that she observed blood around his mouth, and she said that the accused had informed her that he had been assaulted with a cricket bat at the premises to which I earlier referred.

20.   At the request of the accused, he was driven by the taxi driver to the Nelson Bay Police Station.

21.   In her statement to the police, the taxi driver described the accused's demeanour en route to the police station in the following terms:

"The male appeared calm at first, but when we drove past the premises, he started to ramble and became agitated. He started growling about his stepfather. He was saying that he had been kidnapped, and 'my real father is dead'. He was saying that his step-dad was an arsehole and he had photos of his real dad on him. He wanted to show me these photos. He said that he was going to get an iron bar and kill them or him. I presumed that he was talking about the people at the previous premises. I can't remember the exact words he was using, and I can't recall, when he said about killing, if he used the words 'them' or 'him'. I started to feel uncomfortable and I dropped him off at Nelson Bay Police Station at about 6am."

22.   The accused was spoken to by police at Nelson Bay Police Station, and reported to police the fact of the assault on him earlier that evening. He was observed by police to have various injuries consistent with those described by the taxi driver, and the photographs taken by police are consistent with this description. They show what might be described as a haematoma to his skull, as well as traces of blood around his mouth.

23.   Senior Constable Lang, who spoke to the accused at the Nelson Bay Police Station, said, amongst other things, the following:

"The accused showed me several photos and told me that the person in the photo when he was young was his father, and he showed me another photo of a male and a Filipino female. The accused stated that the female was his mother and the male was the person that kidnapped him and lives in Nelson Bay. The accused kept on saying, 'Look at the ears on my dad. The ears on this person are different. This is not my father.' The accused at one stage asked me to call his mother in the Philippines and she would tell me about the kidnapping."

24.   The police then made arrangements for the accused to be taken to the Tomaree Community Hospital at Nelson Bay in order that his injuries could be assessed. He was taken to the hospital, and whilst in the waiting room he had a conversation with a hospital assistant, who told the police the following:

"While I was cleaning the toilets within the waiting room area, I come out of the toilets to go to my cleaning trolley, and the young man started to talk to me. He said very politely, 'Good morning.' He sounded Australian, with a normal male voice. I said, 'Good morning.' He then said, 'I've been assaulted in the early hours of the morning, and the same man that did this to me, my step-dad, had killed my real father.' The man's voice changed slightly and he sounded angry when he said, 'I'm going back to kill him, to get even'."

25.   The accused was then assessed at the hospital. He was found to have a haematoma to his forehead, and mild bruising to his nasal bridge as well as a small laceration over his lower lip. No other injuries were found, and he was prescribed analgesia.

26.   The accused was then collected by taxi from the hospital and went back to the police station. The taxi driver who conveyed him provided a statement to the police in which he said the following:

"The male appeared upset and told me that he'd been hit with a cricket bat, but said that it did not knock him out. He said that he was wasting his time going back to the police station as they would not do anything about it. I asked him had he been in trouble previously and he told me that he hadn't. I told him that if he was genuine, then they, the police, would help him. The male then said to me 'This is not over, I'm going to get my Glock and I'm going to finish it off'. I said 'Don't be silly, go home and sleep on it', he then said 'You'll read about this in the paper'. By this time I had pulled up at the police station, I dropped the male off and kept on driving".

27.   Subsequently, after a short period at the police station, another taxi arrived and took the accused back to his premises in Nelson Bay. That taxi was driven by the same taxi driver who had earlier conveyed the accused to the police station. The taxi driver said the following to the police about the accused's demeanour when she collected him from the police station:

"The male, when he got in the cab, started to get quite savage and aggressive in his whole demeanour. I can't remember his exact words but he was being very derogatory about the police not doing their job. He was saying that they needed to listen to him as he needed protecting. He then started saying in an angry voice that he was going to kill someone. He again started to say that his stepfather was an arsehole and that his real father was dead. I didn't feel threatened myself, but I did feel uncomfortable. The male just kept on repeating himself and it was like he was venting his anger to someone who was going to listen".

The taxi then dropped the accused at his premises in Nelson Bay.

The Events on the morning of 12 November

28.   The accused lived at premises with the deceased, his (ie the accused's) brother, Phillip McDonald, and a friend of the deceased, Ian McColl. There is evidence that the accused's brother Phillip had departed Australia for the Philippines on Thursday 11 November 2010. Accordingly, as at the morning of 12 November 2010, there were only three people living in the premises.

29.   Mr McColl gave a lengthy statement to the police in which he described the events of the morning of 12 November 2010. That statement contained the following:

"At about 7.20am I heard a muffled thumping followed by two muffled voices. I continued dozing for a couple of minutes before I heard Bruce's dogs barking and yelping. This is what the dogs normally do when they see or hear Bruce. Within seconds I believe I heard a male voice yell my name, Ian, and the words 'I'm gonna kill you'. I'm not sure which was yelled first or whether it was the same voice or different voices, all I can say is that both statements were yelled by a muffled male voice or voices, I can't say in what tone either statement was made due to the muffle".

30.   Mr McColl described then getting out of bed and standing near the front door, from which position he was able to observe the inside of the deceased's ensuite bathroom in the premises. He told the police that when he looked towards the ensuite he observed the accused hunched over to the left side of the vanity. He was able to identify the accused due to his build and his general appearance. Mr McColl estimated that he would have been between four and five metres away from the accused when he made that observation. Mr McColl then stated:

"I sat on my bed wondering what was going on because everything was now quiet, there wasn't a sound. After about ten or 15 minutes of not hearing Bruce, or anything for that matter, I heard the sliding door to the back verandah. I thought that it may have been Bruce going out to see the dogs, but the dogs weren't barking like they normally do for Bruce. I heard some shuffling on the back verandah outside my window, which was open. It was like a scuffling noise that could be made by a metal container. The only metal container out on the verandah was a mop bucket. I heard the sliding door to the verandah open and close again before hearing water running a few seconds later. The water sounded like it was being run in the ensuite. The water ran for about a minute before it was turned off. The next noise I heard was the clanking of the mop and a bucket, which I thought was unusual for that time of the morning. I thought that something may have been spilt, but I did not know who was using the bucket".

31.   Mr McColl then described leaving the premises, going out the front of the premises and calling the police. A number of police arrived a short time later.

32.   One of them, Senior Constable Parker, had a short conversation with Mr McColl, following which he (Senior Constable Parker) entered the premises. He observed blood spatter on the wall of the hallway and said that he could smell a strong smell of bleach or some other cleaning detergent. He then said:

"Senior Constable Lonergan attempted to open the door in the middle of the hallway next to the bathroom door however he couldn't. Senior Constable Lonergan managed to open the door with some force where a male was in the room. The male was Asian, he had a yellow bath towel wrapped around him, I noticed he had a lump on his forehead, left side, and a cut beside it with a little bit of blood coming out of it. I said 'Who is home with you?', he said 'Just me and my brother', I said 'Where is your father?', he said 'He is at work'".

33.   Senior Constable Parker then went outside the premises and had a further conversation with Mr McColl. He then re-entered the premises, where he observed another officer, Senior Constable Martin, placing handcuffs on the accused. His attention was then directed to a body and he looked through a bathroom and could observe what he described as a torso with blue underwear on, he said that there was a lot of blood on the body and the surrounding carpet and walls. On closer observation he said the following:

"I have observed several stab wounds on the deceased's back, his head was hard up against the wall with his face turned to his left, lying on a power board. There was blood all over the wall, floor and body. I also noticed there was a bucket in the bath full of soapy water and it had clothes in it. While walking back out I have looked in the bedroom where the Asian man was in, I have seen a large bladed kitchen knife, it had a black handle and there was blood on the blade. The knife was sitting on top of a set of chest of drawers".

The accused was then arrested by other officers.

34.   On the afternoon of 12 November 2010 Dr Rohan Samarasinghe attended the deceased's premises. He observed blood, blood spots and blood smearing in various areas of the house. He described the deceased lying face down on the floor of the bedroom with blood and blood spatter around him. He said that the bathroom tub, sink and floor were shown to be apparently plain, but that a bucket with clothing was seen inside the bathtub. He also observed a bloodstained, black handled, single cutting edge knife in another room, as well as bloodstains on the floor of the hallway, two bedrooms (in addition to that of the deceased), the lounge room, the pantry, the kitchen, the kitchen sink and the door handles of the pantry and kitchen area. He also observed various other bloodstains on the body of the deceased.

35.   Dr Samarasinghe recorded, in particular, that there were multiple stab wounds to the deceased involving his head, neck, chest, abdomen, as well as his upper and lower limbs, he also observed that there was multiple stab damage to the lungs, heart and ascending aorta. He also described a hemothorax and a hemopericardium, as well as defence injuries to the hands and legs of the deceased. Dr Samarasinghe reached (inter alia) the following conclusions:

"The death resulted from a series of stab injuries which had involved the head, neck, chest, abdomen and both upper and lower limbs. The major injuries were those of the chest and were associated with damage to the heart, lungs and ascending aorta. These included three penetrating injuries to the heart and a single penetrating injury to the ascending aorta from the front of the chest".

Dr Samarasinghe went on to express the following opinions:

"Some stab injuries to the chest would be regarded as individually fatal, particularly those associated with direct damage to the heart. The nature and distribution of the injuries, taken in conjunction with the findings at the scene, would collectively suggest the deceased had major blood loss and death from hypovolaemic shock. Given there were a large number of injuries and their scattered distribution, it is impossible to accurately determine a sequence in which the injuries were inflicted. However, there was a group of multiple stab injuries at the back of the torso and neck with the same approximate direction. There were multiple defence type injuries predominantly to the left forearm, left hand and legs.

The nature and distribution of these injuries would suggest that the deceased may have been struggling for some time. The pattern of the stab injuries was consistent with a sustained attack by a sharp cutting weapon such as the kitchen knife found at the scene. The degree of force required to cause each stab injury was variable and this depends on many factors. These include sharpness of the cutting edge, weight of the weapon, resistance of body tissue and overlying material such as clothing. The severity and extent of the damage to the bones, costal cartilage and internal chest organs would generally indicate the use of a severe force. There was no evidence of significant natural disease processes contributing to the death".

The evidence of the accused's hospital admission in June 2007

36.   Amongst the material tendered by the Crown is evidence of the accused's admission to the Maitland Hospital on 6 June 2007 following a physical altercation with the deceased. The clinical notes of his admission record, amongst other things, that the accused told hospital staff that his father had been drinking, that he was threatening and abusing him and that he, the accused, stabbed his father in self-defence. Part of the history taken from the accused on that occasion also included the following:

"Doug reports that he may have been poisoned by his father and thought his father and mate were discussing getting rid of him when holding him down last night. He believes that his father/mate and brother may be trying to kill him and he know this as there is an unfilled hole in the backyard and an old fridge they may be keeping to put his body in".

37.   In association with his admission on that occasion the accused was examined by Dr Artin Jebejian, who diagnosed early psychosis with persecutory delusions which, in the opinion of Dr Jebejian, had been present since about May of 2007.

38.   The accused was discharged from the psychiatric unit at the hospital on 14 June 2007. It was recommended that he receive case management for what was described as psycho-education and relapse prevention. It is not clear on the evidence available to me what, if any, degree of treatment the accused received after that hospital admission.

The specialist medical evidence

39.   Contained within the Crown's material is a report of Dr Stephen Allnutt who examined the accused at the request of the Crown on 21 October 2011. Dr Allnutt's report which is contained within ex A is dated 31 October 2011.

40.   Dr Allnutt obtained a history from the accused concerning the events of the morning of 12 November 2010 which was recorded (in part) in the following terms:

"He went home and was not thinking anything. He went to his bedroom. He did nothing in his bedroom. He put his bags and phone down. He came out and saw his father. He saw his father's eyes change colour. His father was in the hallway. He thought his father's eyes changed which made him think that his father was a different person, an impostor, and his ears were smaller.

He went to the kitchen. He was feeling really scared. He was scared that this person was going to kill him. He got a knife, came back and stabbed him. He stabbed him many times because he was scared and he thought that he was not dead. He thought this person was going to kill him.

After he stabbed him he had blood all over him so he took a shower. He was thinking he had killed an impostor and he intended to call police. He thought at the time he was trying to protect himself. He denied mopping the floor. He said when he came out of the shower police were there.

He said he had denied the offence to Dr Neilssen initially because he forgot things and had only remembered a couple of months ago."

41.   Dr Allnutt then proceeded to review various documentation with which he was provided, all of which is before me in ex A. In relation to the issue of psychiatric illness Dr Allnutt expressed the following opinion:

"He was not manifesting active symptoms at the time that I saw him of a significant mental illness, either a mood, anxiety or psychotic disorder. However, he provided a history of a prior admission to a psychiatric hospital three years prior to the indexed offence with the institution of antipsychotic medication which he had discontinued.

It appears that he probably remained mentally stable for a period of a year, but after being discharged began to have a relapse with the emergence of delusions of mis-identification and visual hallucinations as well as delusions of persecution, believing that his father was an impostor and there was some conspiracy to kill him.

In my view it is likely that these delusional beliefs have been present for a number of months or possibly years prior to the index incident. He would meet criteria for a diagnosis in my view of paranoid schizophrenia which is currently in remission."

42.   In relation to the accused's mental state at the time of the commission of the alleged offence Dr Allnutt expressed the following opinion:

"At the material time of the alleged offence he was experiencing active symptoms of psychosis characterised by delusions of mis-identification, persecutory beliefs and visual hallucinations. These symptoms would be consistent with a disease of the mind, namely, psychosis."

43.   Having then considered the matter further Dr Allnutt concluded in the following terms:

"On this basis I believe he would have been incapable of reasoning about the matter with a moderate degree of sense of composure and would have had available to him the defence of mental illness."

44.   The terms in which Dr Allnutt phrased that opinion were consistent with those which appear in the decision of the High Court in R v Porter to which I will refer in a moment.

45.   As I have indicated, the defence case was constituted by two reports of Dr Olav Neilssen, psychiatrist, which were admitted without objection and marked ex 1. Dr Neilssen examined the accused at the request of his solicitors on two occasions and there were two reports which emanated from those examinations, one dated 25 February 2011 and the second dated 24 August 2011.

46.   At the time of the first of those examinations Dr Neilssen obtained a history from the accused which included the following:

"Mr McDonald said that he had been charged with the murder of his father, but said that he intended to enter a plea of not guilty as he said he did not commit the offence. He said that he did not know how the police came to be called to the flat he shared with his father in Nelson Bay or why he was charged, but said that the reason he was covered in blood and his blood-soaked clothes were in the bath was that he had been a victim of an assault the night before that caused him to bleed from several wounds."

47.   Dr Neilssen went on to say,

"Mr McDonald confirmed that his father had been stabbed to death. When asked who he thought who might have been responsible for the offence he said, 'I don't know.' When asked why he thought he was charged with his father's murder he said, 'I was there at the time.'"

48.   Based upon the history and the material which was provided to him Dr Neilssen arrived at a diagnosis of chronic schizophrenia and he proceeded to express what he described as a preliminary opinion which was partly in the following terms:

"Mr McDonald's pre-morbid intelligence was assessed to be in the lower half of the normal range from his vocabulary and general knowledge. He would probably be able to understand the charge and the general nature of the proceedings and would also have some capacity to follow the proceedings and understand legal advice."

49.   Having expressed the opinion that at that time the accused was probably unfit for trial, Dr Neilssen went on to say the following:

"From the information available it seems likely that Mr McDonald would have the defence of mental illness open to him. Mr McDonald had previously assaulted his father in response to the persecutory belief that his father had planned to kill him. The information from Mr McDonald's friends suggests that the persecutory beliefs regarding his father had not resolved and had only become more entrenched and distressing during the years without treatment since the brief admission to Maitland Hospital in 2007."

50.   At the time of his second examination of the accused Dr Neilssen obtained a history which was substantially different to that which he obtained at the time of his first examination. On this second occasion the accused made a number of admissions to Dr Neilssen which were generally consistent with those that he had made to Dr Allnutt about being responsible for the stabbing of the deceased. Dr Neilssen recorded in his second report, amongst other things, the following:

"Mr McDonald confirmed that he had been charged with the murder of his father. He acknowledged that he had committed the offence, but intended to enter a plea of not guilty on the grounds of mental illness."

51.   At the time of his second examination Dr Neilssen noted that the accused confirmed aspects of the history which had been provided at the time of the first examination about the events of the night before, such history being generally consistent with that which I have previously outlined.

52.   In terms of the accused's mental state at the time of his second examination, Dr Neilssen said that there were no obvious signs of neurological disorder, but that the accused's emotional responses were restricted in range in a way that was consistent with the blunting effect of chronic schizophrenia rather than because he was particularly depressed.

53.   Having confirmed his earlier diagnosis of chronic schizophrenia, Dr Allnutt expressed, amongst other things, the following opinion:

"The diagnosis of chronic schizophrenia is based on the presence of a bizarre delusional belief that was typical of schizophrenia at the time of the initial interview in February of this year. Mr McDonald's presentation during the two interviews was also consistent with the presence of a severe form of mental illness as he was poorly groomed, had blunted emotional expressions and displayed the impoverished and literal thinking found in chronic forms of the disorder.

I believe that Mr McDonald has the defence of mental illness available to him. He has a severe and long-standing form of mental illness, for which he had received only minimal treatment, which would be recognised in law to be a disease of the mind. His disorder gave rise to a defect of reason in the form of the belief that his father had been replaced by an impostor who planned to kill him. He was probably aware of the physical nature and quality of his actions, but he did not recognise that his actions were morally wrong as in his deluded state he believed he was acting in self defence."

54.   Dr Neilssen then proceeded to express various views about the necessity for continuing treatment.

The relevant principles

55. Section 38 of the Mental Health (Forensic Provisions) Act provides for the delivery of a special verdict. Clearly, the defence of mental illness has been raised by the accused in the material which has been tendered. In order to rely upon that defence, it must be established that at the time of the commission of the relevant act the accused was labouring under such a defect of reason from disease of the mind as to not know the quality and nature of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong (see generally R v M'Naghton (1843) 8 ER 718).

56.   The test was formulated by Dixon J in R v Porter (1933) 55 CLR 182 at 189 to 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 everyday standards of reasonable people."

57.   Irrespective of whether it is the Crown, the accused or the trial judge who raises the defence of mental illness, the onus of proof is on the accused to establish the defence on the balance of probabilities (see Mizzi v The Queen (1960) 105 CLR 659; R v Ayoub [1984] 2 NSWLR 511).

58.   As the tribunal of fact I must firstly be satisfied that the offence which has been charged, namely, the offence of murder, is made out. In doing so, as the tribunal of fact I must ignore the question of insanity. I must rely upon the presumption of sanity and I need not consider the defence which has been raised until such time as I am satisfied that the offence of murder is proved beyond reasonable doubt (see R v Stiles (1990) 50 A Crim R 13 at 22).

59.   In the present case the two specialist medical witnesses, Dr Allnutt for the Crown and Dr Neilssen for the accused, agree as to the conclusions and the opinions that they have expressed. Neither the Crown nor counsel for the accused have submitted to me that those opinions should not be accepted as properly formed and honest. Further, there is no indication whatsoever in the evidence before me which would suggest that either Dr Allnutt or Dr Nielssen have relied upon material for the purposes of forming their opinions which is in some way unsatisfactory, nor is there any suggestion that their respective conclusions reached and opinions expressed are contradicted by any other evidence. Indeed, the other evidence which is available concerning the accused's behaviour prior to the murder of the deceased is completely consistent with the views which have been expressed by each of the specialist medical practitioners.

60.   Similarly, there is no indication that either Dr Allnutt or Dr Nielssen have taken steps to form their opinions which were not soundly taken, nor is there anything within their reports which reflects adversely on the validity and reliability of the opinions that they have expressed.

61.   It is, of course, open to a tribunal of fact to reject the unanimous medical evidence where there is other evidence which casts doubts upon the opinions which have been expressed (see for example, R v Michaux (1984) 13 A Crim R 173; Taylor v R (1978) 22 ALR 599, especially at 608).

62.   However, as I have said, there is nothing whatsoever in the evidence which would cause me to reject the opinions which have been expressed by Drs Allnutt and Nielssen as to the accused's mental state, and to the availability, to the accused of a defence of mental illness.

Resolution

63.   In order to be satisfied of the commission of the offence of murder standard, I must firstly be satisfied that the deceased died. That is evident plainly from the evidence of Dr Samarasinghe, to which I have previously referred.

64.   I must also be satisfied that it was the deliberate act of the accused which caused the death of the deceased. The accused has made admissions to both Dr Allnutt and Dr Nielssen as to the circumstances in which the deceased was killed. Mr Smith, who appears for the accused, invited me to rely on those admissions, and I do so. Even without those admissions, the circumstantial evidence surrounding the death of the deceased, including the ferocity of the attack upon the deceased, and the fact that it was only the accused and Mr McColl who (apart from the deceased), lived at the premises at the time form part of the evidence which is capable of satisfying me beyond reasonable doubt that it was the deliberate act of the accused which caused the decesased's death.

65.   In terms of the element of causation, I also take into account the evidence of Dr Samarasinghe to which I have previously referred.

66.   Finally, I must be satisfied that the act causing the death of the deceased was done with an intention to kill or with an intention to inflict grievous bodily harm.

67.   Again, the accused's admissions to the medical practitioners support the conclusion that he intended to kill the deceased. Quite apart from those admissions, there is the evidence of statements made by the accused to persons in the hours leading up to the murder, which, on the material before me, evidence an intention to kill the deceased on the part of the accused. I also take into account a matter to which I have already referred, namely, the evidence of what was clearly a ferocious attack made upon the deceased as set out in the evidence of Dr Samarasinghe.

68.   Accordingly, I am satisfied beyond reasonable doubt that the elements of the offence of murder are made out.

69.   I am therefore required, because of the way in which the matter has proceeded, to turn to the defence of mental illness which has been raised by the accused.

70.   I have recounted at some length the relevant parts of the opinions of Dr Allnutt and Dr Nielssen. As I have already indicated, there is unanimity between their ultimate opinions.

71.   For the reasons to which I have already referred, I have no reason to reject those opinions. Indeed, both the Crown and Mr Smith invited me to accept them and to rely upon them.

72.   To the extent that there was any doubt about the matter, the opinions find support in the behaviour of the accused in the hours leading up to the murder of the deceased. In short, the behaviour of the accused, as exhibited at the time to the various witnesses to whose evidence I have referred, provides ample support, if any such support were needed, for the expert medical opinions which have been expressed regarding his mental state at the time.

73.   Accordingly, I am satisfied on the balance of probabilities that the defence of mental illness has been made out. The defence as articulated by Mr Smith was, as he put it, based on the "second limb", that the accused did not know that what he was doing was wrong. I am satisfied on the medical evidence, on the balance of probabilities, that that was the case.

Conclusion

74.   For these reasons, on the charge of the murder of the deceased, I find the accused not guilty on the grounds of mental illness.

75. Pursuant to the provisions of s 39(1) of the Mental Health (Forensic Provisions) Act 1990, I order that the accused is to be returned to his present place of custody and that he be detained there, or at such other place as is deemed appropriate according to law, until such time as he is released by due process of law.

76. I further order, pursuant to subs 39(3) of the Mental Health (Forensic Provisions) Act 1990, that the registrar of the Court notify the Minister for Health and the Mental Health Tribunal of the terms of the order that I have made pursuant to s 39(1).

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