R v Ham

[2009] NSWSC 296

CITATION:	REGINA v HAM [2009] NSWSC 296
HEARING DATE(S):	9 June 2009
JUDGMENT DATE :	4 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Hall J at 1
DECISION:	Not guilty by reason of mental illness.
CATCHWORDS:	CRIMINAL LAW - jurisdiction, practice and procedure - verdict - judge alone trial - murder - accused not guilty by reason of mental illness
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990
CASES CITED:	Makita (Australia) Pty Limited v Sprowles (2002) 52 NSWLR 705 Mizzi v Regina (1960) 105 CLR 659 Radford v The Queen (1985) 42 SASR at 274 Regina v Byrne [1960] 2 QB 396 Regina v Jennings [2005] NSWSC 789 Regina v Kemp [1957] 1 QB 399 Regina v McNaghton (1843) 8 ER 718 Regina v Porter (1933) 55 CLR 182 Regina v Quick (1973) QB 910 Radford v The Queen (1985) 42 SASR at 274
PARTIES:	REGINA v HAM, Tyron Jarrad
FILE NUMBER(S):	SC 2008/11329
COUNSEL:	Crown: W Creasey Offender: J Stratton SC
SOLICITORS:	Crown: S Kavanagh Offender: S O'Connor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

TUESDAY 4 AUGUST 2009

No 2008/11329

REGINA v TYRON JARRAD HAM

JUDGMENT

1 HIS HONOUR: Tyron Jarrad Ham was arraigned on indictment on 9 June 2009. He was charged with the murder of Rebecca Baillie between 10 and 14 September 2007 at Stockton, New South Wales.

2 Following a hearing before a jury commencing on 25 May 2009, the jury was discharged on 1 June 2009. The accused subsequently signed a form of election under s.132(1) of the Criminal Procedure Act 1986 electing to be tried by a judge alone. The election was made after the accused had sought and received advice in relation to the election in accordance with that section. On 1 June 2009, the Crown consented to the trial of the accused proceeding on a judge alone basis.

3 The transcript of proceedings of 25, 26, 27 and 28 May 2009 was tendered on the hearing before me, as were the exhibits tendered in those proceedings. Both the Crown and the accused relied upon the respective closing addresses to the jury as submissions upon the matters that fall for my determination.

4 Section 133 of the Criminal Procedure Act provides that a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such a case must include the principles of law applied by the judge and the findings of fact relied upon by the judge hearing the proceedings. 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.

5 The events which were the subject of this trial took place at Stockton in September 2007 when the accused was living as a boarder with the deceased, Rebecca Baillie.

6 It was the Crown case that at some point in time between 10 and 13 September 2007, the accused intentionally caused fatal injuries to the deceased by stabbing her several times in the region of her neck. There was no issue but that he inflicted the fatal injuries.

7 The accused relied upon two defences. The first was the defence of mental illness. The second was of substantial impairment by abnormality of mind under s.23A of the Crimes Act 1900. These defences were based on evidence that at the time he killed Rebecca Baillie, he was suffering from a bizarre delusion related to a schizophrenic illness. The delusion was that his mother, in league with others, including a fictitious man, who the accused referred to as “Morgan”, described by him as a “black” man, had conspired in arranging for him to be anally raped.

The events occurring between 7 and 14 September 2007

8 The accused and the deceased first met on 7 September 2007. Rebecca Baillie, at that time aged 33 years, was renting a two bedroom home at 108 Dunbar Street, Stockton. With the purpose of finding a boarder, the deceased went to the accused’s mother’s clothing boutique and placed an advertisement in the window. The accused’s mother, Lorraine Thomas, contacted the accused in relation to this advertisement. He went to the premises in Dunbar Street that afternoon and met the deceased, who then offered him accommodation at those premises.

9 Later that afternoon, the accused offered the deceased some money for driving him and a friend to Mayfield to obtain methylamphetamine (“ice”).

10 The next day, 8 September 2007, the accused’s mother visited the accused at Dunbar Street. She spoke to the deceased and gave her money for rent on behalf of her son. Mrs Thomas told the deceased that her son had been an ice addict.

11 On 9 September 2007, the deceased stayed at the residence of Mr Rizzoli and Mr Price at Waratah. On 10 September 2007, the deceased returned to her residence to find the house in a general state of disarray. I will shortly refer to Mr Price’s observations of the state of the house on this occasion.

12 On 11 September 2007, the deceased’s estranged husband, Mr Baillie, had a number of conversations with the accused and the deceased. The deceased was increasingly intoxicated. At one point in time, she indicated to Mr Baillie that she was fearful of the accused.

13 On the Crown case, during the evening of 11 September 2007, the accused bound the deceased’s hands and feet with tape and stabbed her. It was not clear on the evidence whether the binding with tape occurred before or after the stabbing. The evidence suggested that one of the wounds on the deceased’s left leg was occasioned after the tape had been placed around her ankles.

14 The Crown tendered a document entitled “Agreed Facts” dated 25 May 2009, which was marked as Exhibit “C”. The document sets out the following matters:-

“ IT IS AGREED between the parties that
1. After stabbing the deceased the accused remove [sic] some rings from her fingers. He then removed some money and further rings from the deceased’s handbag. He then stole the deceased’s motor vehicle and shortly thereafter used the money and rings to purchase drugs.
2. Prior to using the drug the accused gave the appearance of being stressed and agitated. After using the drug he gave the appearance of calming down.
3. At one stage that morning during a conversation with an associate Mr O’Leary the accused said, ‘You don’t know what I’ve done; I’m facing 25 years to life’.
4. The rings were later returned to police and subsequently identified as belonging to the deceased .”

15 On 13 September 2007, the body of the deceased was found by Mr Baillie in the lounge room of the premises at 108 Dunbar St, Stockton. During the course of that day, he had tried to speak to the deceased by telephone. There was no response when he called her number. He eventually broke into the home by climbing in through the kitchen window. She was found with her hands, ankles and upper arms bound with black electrician’s tape.

16 The accused was arrested on 15 September 2007. Between the stabbing and his arrest, the accused was staying at a friend’s house.

17 The accused did not give evidence. His decision not to give evidence, of course, constitutes no admission and I draw no adverse inference from it.

18 Dr Nadesan carried out the autopsy on 14 September 2007. In his report, Dr Nadesan detailed the injuries that he observed and made the following comments (transcript, 25 May 2009, p.34):-

“ 14. Stab wounds on the right side of the neck, injuries 1, 2 and 3 have severed the right external carotid artery.

15. Stab wound on the left side of the neck, injury 8, had severed the left external carotid artery and the nearby internal jugular vein.

16. Stab wound number 6 located on the front of the neck had penetrated into the larynx above the level of the thyroid cartilage resulting in bleeding into the air passages.

17. In combination with wounds 1, 2, 3, 6 and 8 were fatal due to combined effects of acute blood loss and bleeding into the airways. The other wounds observed at autopsy were not considered directly contributable to death.

18. Blood alcohol level indicates that there was a heavy drinking session prior to death .”

19 Dr Nadesan found the direct cause of death was multiple stab wounds to the neck.

Mr Price

20 Mr Terrance Price was living with Mr Grant Rizzoli at Waratah in September 2007. He had known the deceased for some years prior to her death.

21 On 8 September 2007, he and Grant Rizzoli went to Rebecca’s residence in Dunbar Street. The accused was sitting on the lounge who the deceased introduced as “Tyron”. They drank beer but the accused said he would not as he was “dregging out” from ice that he had taken that morning.

22 On 9 September 2007, Ms Baillie stayed the night at Mr Price’s house. On 10 September 2007, she returned with Mr Price to Dunbar Street to feed the animals. When they arrived at the house, they discovered that the two smaller dogs and the cats were locked inside the house. The house was in a mess, all the windows were locked and the blinds drawn. There was dog excrement throughout the house.

23 The accused was asleep on the lounge. There were two big carving knives on the coffee table beside the lounge.

24 Mr Price said he thought it was the previous night that the accused had said about his mother stating that “I want to kill her”. I will refer a little later to the evidence concerning an irrational belief held by the accused about his mother.

25 After cleaning up the premises, Mr Price and Ms Baillie left and she stayed at his premises in Waratah on the evening of 10 September.

26 On 11 September, Ms Baillie received a call in which she told Mr Price that the accused said he wanted her to come and pick him up to take him so he could “get on”, that is, obtain “ice”. She left his premises later that Tuesday. He never saw her again.

27 Later that day, Mr Price received a call from the accused. He had the impression that the accused had ingested too much “ice” and was not thinking straight. The accused told him he was going to come over to his place and “run a blade through him”. He was ranting and raving.

Mr Craig Baillie

28 Mr Baillie had known Rebecca Baillie for about 15 years and they married in April 2007. After separating, she lived at 108 Dunbar Street, Stockton.

29 He last saw her on Tuesday 11 September 2007. He went to her residence to obtain identification documents. She introduced him to the accused.

30 On that occasion, Ms Baillie gave him the impression that she was moderately intoxicated. At some point, he had an argument with her.

31 On Thursday, 13 September 2007, he had not heard from Ms Baillie since midnight on Tuesday, 11 September 2007. He decided to go to her premises to see her. He knocked on the door and there was no answer. He felt that “things were unusual” at the house, observing that the car was missing, the back gate was unlocked and the dogs were locked in the house.

32 After speaking to Ms Baillie’s mother, June, who had also not heard from her daughter, Mr Baillie went back to Ms Baillie’s house. He forced his entry into the premises by going in through the kitchen window. He went into the lounge room and found Ms Baillie on the lounge with a lounge cushion covering her.

Issues

33 The Crown is obliged to prove beyond reasonable doubt the elements of murder which relevantly are as follows:-

(1) First, that Rebecca Louise Baillie died.

(2) Secondly, that her death was caused by the actions of the accused, Tyron Jarrad Ham, by stabbing her in the neck.

(3) Thirdly, that at the time of committing those actions, Tyron Ham intended either to kill Rebecca Baillie or at least cause her grievous bodily harm, that is, really serious bodily injury.

34 Whilst the accused had the benefit of the presumption of innocence the way the case proceeded, there was no issue concerning proof of the elements of the offence except for the issue of the accused’s mental state at the time of the offence. The accused contended that at the time of doing the act causing death he was mentally ill so as not to be responsible in law for his acts. Alternatively to the defence of mental illness, he raised the defence of substantial impairment.

35 In the circumstances to which I have referred, there is no difficulty in concluding beyond reasonable doubt that the accused, by his deliberate acts, caused the death of the deceased.

36 The fundamental role of the law is to hold people responsible for their actions. It is recognised, however, that a person may not be so responsible by reason of mental illness. However, there are degrees of mental illness. The mental capacity of a person may be totally impaired at the time he or she commits an offence, or his or her impairment may be less than total, although still substantial. I will accordingly deal with the two defences concerning impairment raised on behalf of the accused that respectively raise the concepts of total impairment and partial impairment.

37 The onus of proof of the defence of mental illness rests upon the accused to prove the defence on the balance of probabilities: Mizzi v Regina (1960) 105 CLR 659.

The test for mental illness

38 The statement of the test for the defence of mental illness was propounded in the case of Regina v McNaghton (1843) 8 ER 718. The accused must establish that at the time the act were committed, he was suffering from a defect of reason, from a disease of the mind, so as not to know the quality and nature of the act he was doing or, alternatively, if he did know it, that he did not know that what he was doing was wrong.

39 It is important that I identify the principles that govern the test to be applied in this case and to which I will be referring later in this judgment when I come to consider the medical evidence.

40 In relation to the applicable principles, the High Court has stated that if through disordered condition of the mind the accused could not reason about the matter with a moderate degree of sense and composure or did not know it was wrong according to the everyday standards of reasonable people, it may be said that he could not know that what he was doing was wrong: Regina v Porter (1933) 55 CLR 182 at 189-90.

41 The law requires that the accused’s state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or of long standing, whether curable or incurable: Regina v Kemp [1957] 1 QB 399. The distinction to be drawn is between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor which is transient, that is, passing and not prone to recur: Regina v Quick (1973) QB 910 cf Radford v The Queen (1985) 42 SASR at 274–275.

42 The Court is obliged to resolve the issue of mental illness before addressing the availability of the partial defence of substantial impairment.

Substantial impairment

43 In relation to the partial defence, were I to find that any impairment suffered by the accused through mental illness was not total, but was nonetheless substantial, the partial defence of substantial impairment by reason of abnormality of mind may then be available.

44 For the partial defence of substantial impairment by abnormality of mind to succeed, the accused must establish the matters provided in s.23A(1) Crimes Act on the balance of probabilities, namely:-

(1) That, at the time he stabbed Rebecca Baillie, his capacity to understand events, or judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition; and

(2) That such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter.

45 An “abnormality of mind” occurs if the accused’s capacity to function in any one of the three ways mentioned so differed from that of ordinary human beings that the reasonable man or woman would term it abnormal: Regina v Byrne [1960] 2 QB 396 per Lord Parker CJ at 403.

46 An “underlying condition” is a pre-existing mental or physiological condition. It does not have to be permanent but it is not sufficient if it is only passing or lasts for only a short time.

47 In determining whether an impairment was so substantial as to warrant liability for murder being reduced to manslaughter, a value judgment is involved requiring the application of community standards.

48 There will be an abnormality for the purposes of this defence, where an accused’s capacity to understand events or judge whether his or her actions were right or wrong or control himself or herself, deviates from what may be regarded as normal, allowing for the fact that there is a variation in the different ways in which people function.

49 The effects of self-induced intoxication from drugs and/or alcohol are to be disregarded in relation to the defence of substantial impairment: s.23A(3) Crimes Act.

50 The fact of the accused having ingested methylamphetamine (commonly referred to as “ice”) is an important one that I must closely consider. A voluntary drug induced state is not in itself a basis for a defence of either mental illness or substantial impairment.

51 However, as the medical evidence in this case indicated, drugs or alcohol may, in certain individuals, may trigger an abnormality of mind. This means that either may bring about a physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment in those circumstances may be open.

The defence of mental illness

52 As to the first limb of the McNaghton test, Dr Nielssen stated that the accused understood that he was stabbing Ms Baillie and, as well, that the resulting wounds were probably fatal. So much was not in dispute in the evidence of Dr Allnutt and Dr Furst. Accordingly, it was accepted in this case that he understood that much.

53 The second limb of the defence is of a different character. It is concerned with whether the disease or disorder or disturbance of mind was of such a character that the accused was unable to appreciate that the acts he was doing were wrong. So, whilst it may be supposed that the accused knew he was killing, as to how and why he was killing, was he incapable of appreciating the wrongness of the acts? So, in the present case, the question is, was his mind of that character?

54 “Wrong” in this context means, as previously stated, wrong according to the everyday standards of reasonable people. The question for consideration is whether, at the time the accused stabbed Ms Baillie, he had such a mental disorder or illness that he was incapable of reasoning about the rightness or wrongness of his acts according to ordinary standards (not that he merely reasoned incorrectly).

The events immediately after the stabbing incident

55 Mr Stratton, in his submissions on behalf of the accused, emphasised the importance of considering the lay evidence in particular, Mrs Thomas’ evidence in conjunction with the medical evidence. His submission was that the accused suffered a mental illness for many years prior to September 2007 and that the conclusion to be drawn from all the evidence was that at the time of stabbing Rebecca Baillie, he laboured under an underlying mental illness or condition, notwithstanding that there were some super added or additional effects from his consumption of the drug known as “ice”. In particular, the delusional conspiracy referred to in evidence reveals, Mr Stratton submitted, that an entrenched and intense belief was held by the accused up to the date he killed Rebecca Baillie. The symptoms that he was manifesting up to that time he contended were indicative of a psychiatric illness.

The evidence of Mrs Thomas

56 It is apparent, as Mr Stratton submitted, that no-one would be more familiar with the accused and his problems than his mother, Mrs Thomas. It is important to observe that no suggestion was made that Mrs Thomas’ evidence was in any way unreliable, false or overstated. As Mr Stratton also observed, the telephone intercept material to which I will refer corroborated the account given by her as to the accused’s bizarre beliefs. Mr Stratton submitted that the evidence as a whole establishes a very strong case of mental illness.

57 Mrs Thomas’ evidence establishes a lengthy history of drug taking by the accused and a belief held by him, that he was the victim of a conspiracy to sexually assault him. The belief was that the parties to the conspiracy included a fictitious figure referred to as “Morgan”. According to Mrs Thomas’ account, the accused also held a belief that she was party to the conspiracy and charged customers $600 for them to have sex with him.

58 Mrs Thomas said that the accused was diagnosed with ADHD at the age of five. From an early age he exhibited a number of abnormal behaviours. Mrs Thomas said that he would double check that the house was securely locked up and he would not drink out of anything that was not sealed.

59 At age 11, he started smoking marijuana and progressed to the drugs speed, cocaine, ecstasy and heroin until about 15. At age 15, he commenced using the drug “ice”. She said he gradually got worse referring, in this respect, to “his phobias and conspiracies”.

60 When asked if he ever became violent after having used “ice”, Mrs Thomas said “only with me”. She said he had once pressed her against the wall and demanded she tell the truth. He said to her: “We can do this the easy way or we can do this the hard way mum, but you’ve got to tell me the truth”. Four and a half years ago, when he was living at Mayfield, he had produced a knife and demanded to know the truth because she said he believed she was the cause of him being repeatedly raped.

61 In cross-examination, she said the “conspiracy theory” started with the accused at age 14 (about eight years ago). According to her evidence, he since expressed the idea of it on a daily basis. He continued to express it, she said, when he was drug free.

62 Mrs Thomas said the accused did not disclose anything about his true thoughts to anyone until about four months prior to her giving evidence. She said that he would never allow her to tell anyone.

63 She said that she located a number of pieces of paper in the accused’s handwriting. Exhibit 1 was located by her about four and a half years ago. She said he would constantly search for a note book in which he believed she recorded the names of customers who were going to have sex with him. Exhibits 2 and 3 were other documents written by the accused.

64 Mrs Thomas said the accused believed she was involved in money laundering the proceeds of the sex activities which he believed she instigated. The accused would often come to his mother’s shop looking for notebooks which he believed recorded the names of customers who were paying his mother to have sex with him.

65 She also gave an account of a time when her son lived above the shop of him taking elaborate precautions to lock himself in his room to protect himself from those he believed were intending to sexually abuse him. On one occasion, Mrs Thomas entered his room and saw a box that he had constructed and which he used to live in.

66 The accused would often pull down his pants and show her his anus as proof of the rape.

67 Mrs Thomas gave evidence of conversations she had with the accused on 9 September 2007, shortly after the accused had started living with the deceased. He said to her (transcript, 26 May 2009, p.46):-

We can do this the easy way, we can do this the hard way. If you don’t start telling me the truth I’m coming around to get you.
I’ll come through the roof and smash through the glass window and Justine won’t fucking stop me. So we can do it the easy way, or we can do it the hard way. You’ve got to tell me the truth . ”

68 The “truth” to which the accused was referring, according to Mrs Thomas, was the belief that he was being raped continually on a nightly basis, that Mrs Thomas was the instigator and that she had a book underneath the counter where customers would pay her $600 to have sex with him.

69 On 10 September 2007, Mrs Thomas saw the accused at the IGA store at Stockton after he had called her on the telephone and angrily demanded food. Mrs Thomas asked him how he could get back on the drugs again. He said to her, “I’ll smash your fucking face in. I’ll break your fucking bones”.

70 Mrs Thomas gave evidence of conversations she had with the accused after he had killed Ms Baillie. She said that on 12 September 2007, the accused phoned her wanting to talk to her. He said:-

“ Mum, I’m your son. I want to have a talk to you. Mum, I may not be able to talk to you again, except from gaol .”

71 She asked him what he had done and he replied, “It’s not good, Mum”.

72 She said she noticed a difference in his voice. In that conversation he said, “the mother fucker black cunt, he deserved it”. She said he had before referred to a black person, “Morgan”, who was the ring leader of the people that were raping him. He said: “I think I’ve cut the black cunt in the throat”.

Intercepted telephone calls

73 The evidence concerning the accused after the killing of Ms Baillie includes the intercepted telephone conversations between the accused and his mother, the transcript of which is Exhibit D, the ERISP with police on 15 September 2007.

74 The intercepted calls were recorded without Mrs Thomas being aware of that fact. She was asked by Mr Stratton to explain some of the words or remarks made by the accused to her. The explanations given by her included the following:-

• “Morgan” – a fictitious identity who the accused believed was the leader of the conspiracy.

• The reference to “the Feds” and “the corruption board” related to him threatening to report her for “the black money” she was supposed to have received from customers.

• “Troy” was “Morgan’s” brother and other names referred to members of “Morgan’s” group.

75 On 15 September 2007 at 4.46 pm, in a phone conversation to his mother the accused said:-

“ I need to speak to you before tomorrow ‘cause me and Morgan, Morgan, um, we have to sort this shit out. You know what I mean?
Um, if we can’t sort it out I’m going to have start narking on youse and I’ve got more than enough. Which I don’t want to.
Okay, um. The boys up the road, they’ve already told me about Jenny and that. They’re probably going to cut your throat or something. Or some shit. It was probably bullshit story just to you know, (sounds like) wear you off and get, you know, you know how it is? How they play .”

76 Later, at 4.48 pm, the accused said to his mother:-

“Just get Troy tomorrow, okay?… Or else I’ll have to take it all up to the fucking Feds. Or if Fiona’s here she can take it into fucking the office or some shit in there. The corruption board.
We’ll sort this shit out. You hear what I’m saying? Once this gets sorted out all Morgan and this shit.
Where are you at? You can come see me tomorrow or something. With Troy. See we’re going to sort Morgan out, mate.
The problem’s with Morgan. And we’re going to punch in with Morgan. You know what I mean? Just to sort it out. Like, there’s no way I can have a life without …
Instead of fucking going down there and putting you in. Okay? If I put you in, well then I’m just going to fucking put you in and I’m going to be a dog at the end of the day. Like, I’m just going to be like that black cunt .
No, not Morgan. He fucking didn’t come down. Even his whole group. Big Rick and that .”

77 In relation to Rebecca Baillie, the accused said:-

“ I haven’t got Rebecca’s car. I stole Rebecca’s car when I like found her on the fucking lounge … there was plastic bags. I’m not explaining all that. I’ll explain it to you when I get there like. I don’t know, who done it. I went out searching that night ‘cause I, I wanted to get on. And I went out looking and some, like I don’t, I don’t know what happened, mate. Just fucking, she broke up with her husband. He was there that day. He threatened to punch her in the mouth .”

78 At 5.33 pm, the accused said to his mother: “No, let’s not talk about Rebecca. You should be more worried about yourself”.

79 Mrs Thomas said to police about the conversation with the accused after Ms Baillie had been killed “Tyron sounded different than ever before and he was still on ice. I could tell, but there was difference in his voice on this occasion”. She said it sounded as though “something else was going on”.

The ERISP

80 Police interviewed the accused on 15 September 2007. He initially told police that on the night that Ms Baillie died, he was walking the streets breaking into vehicles in order to get money and/or property. He called it “searching”. His story was that he returned to the house to find her dead on the lounge, and proceeded to take her rings off her fingers and steal her car.

81 The Crown submitted that reliance could not be placed upon the accuracy of the account or the version of events given by the accused when interviewed. The Crown contended he was not irrational when interviewed by police at least in the sense that he would stay with the question and answer it, or if he drifted from the point, he was brought back to it. He either came back to it himself or the police officers would bring him back. The Crown submitted that the video of the interview does not demonstrate a person who was disordered in his thinking.

82 The Crown emphasised that the accused initially gave a false story to the police and it was only when the police reminded him that they had information from his mother that he told the police about the stabbing.

83 Mr Stratton submitted that the record of interview in fact provides strong and clear evidence that the accused was mentally ill at the time he was interviewed by police. In particular, it was submitted this was indicated by his attempts to tell police about his delusional belief in the conspiracy.

84 In a number of answers given in the interview, the accused suggested that he wanted to talk about something else and “go back to the start”. At answer 182, he says, “I just think there’s something else, like half this time like I was just thinking about something else” and at answer 184, “like right back to the start, look, just start … word from word … ”.

85 Certain answers given by the accused are consistent with the evidence concerning the particular delusion which the accused believed in. The accused made reference to:-

(1) Stabbing a male (“ I stabbed him in the face ” at Q.750; “ he’s an angry bloke ” at Q.755).

(2) A person identified by a reference to an object (“ it’s been stabbed in the face ” at Q.752; “ it lied to me” at Q.816; “ Cause it couldn’t tell the truth, ‘cause if it told the truth, like it’s only gunna, like worse problems with it” at Q.817; “ I was fuckin’ like I sort of pushed it down ” at Q.890).

(3) The fictitious person “Morgan” ( “I wouldn’t be surprised, like, if she’s fuckin’ Morgan right now” at Q.665; “ I shouldn’t have called him a nigger” at Q.754).

(4) The truth (“ I got the truth, it’s from the brothers, and I got the truth mate ” at Q.767; “I said, Just nod your head and tell me the truth. I said, If you don’t tell me the fuckin’ truth, that’s it” at Q.815; “ I’m tryin’ to get fuckin’ down to the truth” at Q.1030; “ It’s been a while but fuck, it’s been a long journey, just to get fuckin’ near somethin ” at Q.1068).

(5) The conspiracy to sexually assault him (“ You don’t have to lie, like I said, ‘cause when the blokes were over, come over” at Q.775; “ My ass ain’t no fuckin’, it ain’t fuckin’ normal ” at Q.783).

(6) A person called “Jenny” who was Mrs Thomas’ clothes manufacturer in Indonesia (“ Don’t wanna, they don’t wanna lose this overseas, Jenny and … You need to grab her and we’ve got the evidence to do it, once you grab her” at Q.1044; “Lorraine works down from her” at Q.1046).

Medical evidence

86 Three experienced forensic psychiatrists were called to give evidence. Dr Olav Nielssen was called by the Crown, Dr Allnutt and Dr Furst on behalf of the accused. Each had reviewed the evidence in the Crown case including the record of interview conducted by the police with the accused. Each also had seen the accused at some length and on more than one occasion. They also had access to the reports prepared by his colleagues so that each was in a position, when giving evidence, to comment upon the view expressed by other practitioners.

87 History provided to an expert such as that given by a patient to a doctor is fundamental to diagnosis. For that reason, it is obviously important that the history given by the patient to the doctor is both a truthful and accurate one. An examining medical practitioner will ordinarily look for corroboration of the history or aspects of it if such corroboration can be obtained.

88 A relevant matter in this case is the extent to which there was corroboration in the form of complaints to others indicative of delusions or hallucinations reported by the accused to each doctor and/or in other records such as clinical records, the ERISP and Exhibit D, the telephone intercepts.

89 As I have noted earlier, the fact that the accused’s delusional beliefs were not disclosed to police in the ERISP was said to be explicable by reason of the fact that police did not ask him or give him an opportunity to develop his past history of symptoms.

Evidence concerning the accused’s medical history

90 Dr Nielssen referred to four entries contained in documents provided to him concerning the accused. The first related to Mr John Sharples who he described as a court liaison service clinical nurse consultant. A letter by Mr Sharples dated 31 March 2006 (that is over 12 months before Ms Baillie’s death) significantly recorded a history of apparently delusional beliefs held by the accused of having been sexually assaulted. Mr Sharples noted a history of recent drug-induced psychosis but found no evidence of mental illness at that time. On 22 November 2005, Mr Sharples made the diagnosis of polysubstance abuse.

91 The second reference was to the accused’s admission to the psychiatric ward of Maitland hospital from 15 September 2004 to 16 September 2004 after threatening to kill his mother and stepfather. The diagnosis at that time was mental disorder due to multiple substance use and antisocial traits. The accused confirmed this admission in an interview with Dr Nielssen.

92 The third entry on 19 June 2006, the Newcastle Mental Health team recorded a call from the accused’s mother reporting that he was “‘really angry’, paranoid and believed that she had arranged for people to molest him at night”. When assessed the following day, the accused reported recent amphetamine use but did not report symptoms of mental illness. He was thought to have residual paranoid ideas from his past methamphetamine use. He attended an appointment on 22 June 2006 but no treatment was initiated.

93 As to the fourth entry, Dr Nielssen noted:-

“ An entry dated 3 July 2006 reported a visit by Mr Ham’s mother to the community health centre during which she expressed her concern about Mr Ham’s belief that he had been sexually assaulted in the past and that he had threatened her with a knife .”

94 Each of these four entries corroborated the fact that the accused had been assessed with mental health issues. Three of them made reference to a belief in the accused of having been sexually assaulted.

95 In considering whether to accept as a fact the account given in evidence by the accused’s mother of her son having experienced delusions and hallucinations over a period of years before the event on 13 September 2007, the clinical histories given to the psychiatrists, Dr Nielssen and Dr Allnutt may, to a point, be considered to be corroborative evidence as to the accused’s previous mental health problems.

96 Dr Nielssen said that he did not, on his initial interviews, obtain the accused’s full history of hallucinations and voices continuing while in custody. The accused gave an explanation for not initially referring to them when first seen by Dr Nielssen. This was that he was “scared they would lock me up in a mental ward”.

97 When asked by Dr Nielssen whether he believed he had any kind of mental illness, the accused said (transcript, 27 May 2009, p.123):-

“ It’s all because of drug abuse. I went into a mental ward because of drug psychosis and they gave me pills. My mum wanted me to get pills. She was telling doctors stuff trying to stick me on Zyprexa.
I was really afraid of being a nut job. I did not want that .”

98 Dr Nielssen interviewed the accused again on 30 April 2009. When asked about his previous responses, the accused said:-

“ I lied to you at the first time. I didn’t tell you about my mother and that because she paid people to rape me. That’s why I killed Rebecca.
I thought Mum was selling me. I had a weird feeling about her, like she’s in on it. That’s why she was making the phone calls.
She was drunk and smiling at me. I thought she was laughing at me getting raped.
That night I was sitting in the room with all the things pushed up against the door. I thought they were waiting until I go to sleep so they could rape me. I heard voices from outside saying it, mad voices saying watch me suffer and they’ve trapped me. ‘Wait till he goes to sleep .’”

99 Dr Allnutt interviewed the accused on 19 October 2008 and was suspicious that he was not providing a full account of his mental function. On 9 February 2009, Dr Allnutt reassessed him. On that occasion, he described a number of symptoms of psychosis, including the delusional belief that his mother was “in on raping” him, which he had initially denied to Dr Allnutt on his initial assessment.

100 Dr Allnutt asked the accused why he had given a different account to the one that he had given to Dr Nielssen. The accused replied he thought that Dr Nielssen might throw him in a mental ward. Dr Allnutt put to him that his account to Dr Nielssen suggested that at least partly his motive was that he believed that Ms Baillie was seeing other men. He agreed that this was a thought that he had. The accused stated that he was providing a more complete account to Dr Allnutt because his father had encouraged him to be honest.

101 The initial impression Dr Allnutt had of the accused was that he had underlying symptoms of mental illness but was feigning sanity. By this Dr Allnutt meant that the accused was pretending to be more mentally well than he was and was embarrassed about disclosing that he had been a victim of sexual abuse by his mother. Dr Allnutt explained that people with mental illness can give varied accounts which makes it difficult for experts. However, he felt that other evidence of the accused’s delusional beliefs, indicated symptoms of mental illness.

102 The Crown referred to the difference in histories given by the accused to the different doctors.

103 When interviewed by Dr Furst, the accused said he had lied to doctors at Maitland hospital when he was admitted there for psychiatric assessment in 2004. The reason he gave for this was that he wanted to get out of the hospital and did not want to be a mental patient. The accused did not tell them that he was hearing voices about his impending rape.

104 The accused told Dr Furst that he was in fact embarrassed about the nature of his beliefs and never told anyone except his mother about them.

105 Mr Stratton asked Dr Furst if there was anything particularly unusual about someone with paranoid delusions being very guarded about telling other people about the delusions. Dr Furst explained that it is quite typical in the first episode of psychosis, particularly when the belief is centred around the kind of topic in this case, the nature of the belief being quite embarrassing to him. It is not uncommon for people, particularly when they are genuinely psychotic, to hold on to such delusions as if they are true and not identify them as a false belief or a delusion.

106 Mrs Thomas gave evidence about her son’s failure to openly discuss his delusions. During her cross-examination (transcript, 26 May 2009, p.56), she explained that although she took him to see mental health professionals, he never disclosed his thoughts to them. Additionally, the accused would not allow Mrs Thomas to tell anyone and would get very angry if he believed she had done so.

The relevance of drug use

107 The relevance of drug use in respect of the defences of mental illness and substantial impairment, an important matter in the present case, was discussed by Kirby J in Regina v Jennings [2005] NSWSC 789. His Honour stated:-

“ 31. I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory.
32. On the other hand, as explained by the medical evidence given in this case, drugs or alcohol may, in certain individuals, trigger an abnormality of mind, that is, bring about some physiological or mental change which is not transitory, but remains even when the effects of the drugs or alcohol have worn off. The partial defence of substantial impairment may, in that circumstance, be open, or indeed, the M'Naghten defence may be available if the impairment were total.
33. There is a further alternative. According to the medical evidence, it has some relevance to Mr Jennings. A person may, by reason of an abnormality of mind (that is a pre-existing psychiatric condition), resort to drugs and/or alcohol to deal with the discomfort caused by symptoms arising from that condition. The drugs or alcohol, once taken, may add to the impairment already suffered by that person. Should that happen, the M'Naghten defence, or the partial defence of substantial impairment, may be available to that person .”

108 I consider these observations to be pertinent to the issues in the present case.

109 When asked by the expert medical witnesses about recent symptoms, the accused said that he had continued to experience hallucinations of voices, including the voice of his mother and unfamiliar voices that seemed to be coming from nearby that said things like, “I love you” and, “telling me they’re raping me”.

110 The accused also told Dr Allnutt that he had ongoing delusional beliefs relating to his mother and ideas of reference, receiving messages from the TV, and hearing voices in the absence of drugs. These experiences were reported as occurring while he has been in custody over the last two years. This was a factor in Dr Allnutt concluding that the accused suffered from “a true mental illness” such as schizophrenia, which had been exacerbated by drug use.

111 The accused told Dr Furst about a six month period of imprisonment in 2007. He said that whilst in custody, he believed some of the other prisoners and prison doctors and guards were involved in a conspiracy to have him raped. He still believed he was going to be raped and that his mother was responsible. During that custodial period, the accused was drug free. Dr Furst explained that the fact that these beliefs were still persisting six months after he was incarcerated suggested that he had a more serious type of mental illness such as schizophrenia and not merely a drug induced psychosis.

112 Mrs Thomas also gave evidence that, when drug free, the accused continued to express beliefs about being a victim of a conspiracy to sexually assault him.

113 On the accused’s history, his symptoms, in particular, his delusional beliefs continued after the death of Ms Baillie and after the cessation of drug taking. The continuation of such symptoms for a lengthy period after the cessation of drug taking according to the medical evidence is indicative of an underlying psychotic condition.

Evidence on the question as to whether the accused knew right from wrong

114 The Crown submitted that on the evidence, the accused bound the deceased before stabbing her. Reference was made to the evidence of Ms McCann, crime scene officer, that the blood trail on the deceased’s leg over the black tape, suggested that the accused stabbed the deceased after her legs were bound. Additionally, the Crown observed that in question and answer 838 of the ERISP, the accused said he bound Ms Baillie’s hands so she would not grab him.

115 On the accused’s account to Dr Allnutt, the taping occurred after the stabbing. Dr Allnutt’s evidence was that even if the accused did tie up the deceased before stabbing her, this action would still be consistent with mental illness.

116 Dr Furst gave evidence that the accused said he quickly opened the bedroom door, grabbed a knife and stabbed the deceased. The accused told Dr Furst that he tied Ms Baillie up after stabbing her so that he could pick her up. On the assumption that the accused did tape Ms Baillie up before stabbing her, Dr Furst explained the impact, if any, that would have on his opinion as to the accused’s state of mind (transcript, 28 May 2009, p.204):-

“Yes, well, even if that was the case and the delusions that he was about to be raped or that this conspiracy was going on were quite intense at that point in time and he was still hearing voices telling him it was going to happen, so I still think that his level of fear or level of belief is quite intense at that point in time, about that going to - about him - about the chance of him being raped.

…

Even after tying her up. Because I don’t think that he was - I mean, the reason I say that is I don’t think that he really - I think that he believed that she was involved in a conspiracy where there were other people involved in this including Morgan and the mother and so on, so the threat existed and even when no-one was in the house before that, as I said earlier, the threat existed .”

117 The Crown submitted that a number of other factual matters occurring after the stabbing establish that the accused knew the difference between right and wrong. Firstly, reference was made to the fact that within hours of the stabbing the accused bought the drug “ice”. Secondly, that he paid for it in part with some rings that he had taken from the deceased’s body. Thirdly, that he said to one of his associates at that time, “You don’t know what I’ve done. I’m good for 25 years to life”.

118 Dr Furst explained that these matters might indicate that he knew what he had done was wrong in a legal sense but they do not necessarily affect the moral quality of the act or whether he understood that what he had done was morally wrong. Dr Furst’s opinion was that the accused did not understand that it was morally wrong to kill Ms Baillie and that he thought he was morally justified at that time in killing her. Those actions are not necessarily inconsistent with the fact that the accused, when he killed Ms Baillie, was mentally ill and was acting in response to delusions. Dr Allnutt gave a similar account, suggesting the accused was aware of the legal wrongfulness of his actions.

119 The Crown also referred to an answer given by the accused in the ERISP (Q.965):-

“ I knew what I was doing. Like, I didn’t know if I should really do it because, you know, the girl only wants, you know —“

120 Dr Allnutt explained that this answer suggests ambivalence in the accused. By this he meant that the accused was trying to reason about the decision to kill Ms Baillie but has not necessarily concluded that killing her would be wrong. Although the accused may have been aware that killing Ms Baillie was wrong, his thinking processes and reasoning ability were so disordered that he could not apply his reasoning to the decision.

121 The accused also told Dr Allnutt that he took two rings, “maybe because she lied about loving me”. On the account given by the accused to Dr Nielssen, the accused said he had an argument with the deceased which stemmed from mixed messages he had received. He said she told him that she loved him but that she was also seeing other boyfriends who were “there all the time”.

Matters in common on the medical evidence

122 The approach I intend to take to the medical evidence given by Dr Nielssen, Dr Allnutt and Dr Furst is to identify the matters they are agreed upon before considering the material difference or differences in their analyses and opinions.

123 The medical witnesses appeared to agree upon the following matters:-

(1) That at the time of stabbing Ms Baillie, the accused did have a psychotic illness. Dr Nielssen and Dr Allnutt referred to this as schizophrenia. Dr Furst referred to it as schizophrenia of a paranoid type.

(2) That there was a family history of mental illness. In addition, the accused had a lengthy history of drug taking which was probably relevant or instrumental in the development of the condition of schizophrenia from which he suffered on 11 September 2007.

(3) That the ingestion of amphetamines has been correlated with the development of the disease schizophrenia, especially in persons who have a family history of mental illness.

(4) That at the time he stabbed Ms Baillie, the accused was suffering from an underlying psychotic illness or condition of schizophrenia and, as well, the effect of having ingested amphetamines.

(5) That combined state or condition would have affected the accused’s ability to reason. Dr Nielssen said he had a defect of reason in the form of a delusional belief.

(6) That the defect in reasoning could be regarded as due to a disease of the mind.

(7) That the symptoms that the accused says he experienced up to and including 11 September 2007, in particular, the firmly held belief or delusion that he was the subject of a conspiracy by others to sexually abuse him, and that his mother was a member of the conspiracy, as well as auditory hallucinations were supportive or indicative of the diagnosis made by each medical witness of schizophrenia.

(8) That the accused had a long-standing psychotic illness that gave rise to that delusional belief.

(9) That, on his version, if accepted, at the time of stabbing Ms Baillie, the accused believed that Ms Baillie had become involved in the conspiracy because of her association with his mother.

(10) That the symptoms of his psychotic illness (schizophrenia) would have been exacerbated by ingesting methamphetamines.

(11) That, in relation to the criteria for determining mental illness, the accused knew the physical nature of what he was doing, namely, that he was stabbing Ms Baillie and that the stab wounds were probably fatal.

(12) That, at the time the accused killed Rebecca Baillie, his capacity to judge whether his actions were right or wrong was impaired. The issue was the extent of impairment due to the underlying psychosis.

124 Dr Nielssen initially expressed the opinion that the accused did know that what he was doing was wrong. Dr Allnutt and Dr Furst expressed the contrary view, that is, that the accused did not know that what he was doing was legally and morally wrong.

125 The fact that Dr Nielssen, at least initially, was the only examining medical practitioner to express a different opinion does not, of course, mean that his view was wrong. As with all expert evidence, it is necessary to examine the basis for his initial opinion and to evaluate it in light of his evidence in cross-examination.

126 The Crown fairly and properly acknowledged that there was a contradiction in Dr Nielssen’s evidence. I will refer to that contradiction shortly.

127 It follows from what I have said that the central question on mental illness in this case is whether, at the time of stabbing Ms Baillie, the accused had such a mental disorder or mental illness that at that time he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable people understand right and wrong and that he was disabled from considering with a moderate degree of composure and reason about what he was doing and its wrongness. I will proceed to consider the evidence of the three medical expert witnesses on these important matters.

Dr Olav Nielssen

128 Dr Nielssen had the benefit of having interviewed the accused on four occasions: 6 November 2008, 14 November 2008, 15 January 2009 and 30 April 2009.

129 His opinion was that at the material time, the accused laboured under a defect of reason in the form of a delusional belief arising from a disease of the mind, an underlying psychotic illness. In Dr Nielssen’s view, the accused, however, understood that he was stabbing Ms Baillie and that the stab wounds were probably fatal.

130 In evidence in chief, he said the accused would also have known that what he was doing was wrong on the basis that anyone would know that killing someone was wrong and his grounds for killing her were not so greatly affected by delusional beliefs. In his opinion, it was an act of revenge rather than an act he had to take because of his delusional beliefs.

131 Dr Nielssen stated that the use of amphetamines in the week before and on the day of the alleged offence was the main factor in relation to his mental state. Aside from the intoxicating effect of drugs, Dr Nielssen stated that the accused did have an underlying chronic illness and that the delusional beliefs which he had held may have developed or expanded to include Ms Baillie. However, he considered that he would not have had the same level of arousal or fear if he had not been taking amphetamines.

132 Dr Nielssen’s initial opinion therefore was he did not have a defence of mental illness.

133 He agreed in cross-examination that the accused had a considerable family history of mental illness and that relevant scientific research showed such a predisposition to mental illness may be triggered by the use of amphetamines.

134 Dr Nielssen accepted as a fact that the accused held the same delusional belief for some years though varying in intensity associated with drug use. Aside from delusional beliefs, he said the accused also had persisting auditory hallucinations which Dr Nielssen said were due to mental illness. They are, he said, classic symptoms of schizophrenia and were described as “first-rank” symptoms.

135 Dr Nielssen’s revised opinion was that the accused’s appropriate diagnosis was the disease of schizophrenia and that he had probably suffered from it since his admission to Maitland Hospital in 2004. He considered the accused suffered from that condition at the time he killed the deceased and that it gave rise to an abnormality of mind.

136 As I have earlier observed, the Crown properly acknowledged that Dr Nielssen contradicted himself in relation to the accused’s condition in one important respect. That contradiction arose in cross-examination. Dr Nielssen had earlier said that he believed that the accused did know and understand that what he was doing was wrong. At a later time in his evidence, he gave evidence as follows (transcript, 27 May 2009, p.133):-

“ Q. And again in terms of that material time, in your opinion, did he know what he was doing was wrong in the sense that he could not reason with some moderate degree of calmness in relation to the moral quality of what he was doing?
A. Well I think he did, would have known that what he was doing was wrong.

Q. And why do you say that?
A. Because that anyone would know that killing someone was wrong and that his grounds for killing her were not so greatly affected by delusional beliefs. It was a sort of an act of revenge, rather than an action that he had to take because of his delusional beliefs.

Q. Why do you say it was an act of revenge?
A. Well it’s a retaliation against what he believes to be his sexual abuse and it’s the wrong thing to do .”

137 In relation to the accused’s capacity to reason in the context of whether the defence of substantial impairment was available, Dr Nielssen was asked by the Crown Prosecutor (transcript, 27 May 2009, p.134):-

“Q. Was his capacity to judge whether his actions were right or wrong, substantially impaired?
A. Well again, there’s some partial impairment in his view of what’s right and what’s wrong, because of his false beliefs that he believes he’s been the victim of sexual abuse by people involved in a conspiracy and hence in his view, he is entitled to take some action because of what’s happened to him. So yes, I do believe his ability to judge right from wrong has been impaired to some degree .”

138 Having acknowledged in his evidence in chief that the accused’s ability to reason right from wrong had been impaired, he was then asked in cross-examination whether he considered the accused had the ability to reason in a way that would be able to tell right from wrong. In that respect, Mr Stratton asked him (transcript, 27 May 2009, p.145):-

“ Q. Is it the case that you would agree that there was a reasonable possibility that the effect of the accused’s mental condition was that he could not tell right from wrong?
A. Well it was impaired because of the effect of his delusional belief, that he felt that he’d been wronged .”

139 Mr Stratton then asked Dr Nielssen to differentiate, leaving aside the effects of methylamphetamines that the accused had taken before the event, whether or not the effect of his mental illness would have been such that the accused could not reason about the rightness or wrongness of his acts with a moderate degree of composure. Dr Nielssen answered (transcript, 27 May 2009, p.146):-

“ Yes. I mean the answer is he couldn’t reason with a moderate degree of composure in the state he was in .”

140 The Crown in re-examination asked Dr Nielssen what he meant by that last answer. He replied that the dominant effect on his mental state was amphetamine intoxication and heavy amphetamine use.

141 When he was recalled, Dr Nielssen was asked by Mr Stratton (transcript, 27 May 2009, p.149):-

“ Q. Assume that at the time the accused killed Rebecca Baillee he had a delusional belief that she was part of a conspiracy to repeatedly sexually assault him?
A. Yes.

Q. Will you assume that?
A. Yes.

Q. In fact, the assumption is what you believed was the state of things at the time, correct?
A. Yes, that seems to be the case.

Q. Bearing in mind that belief Rebecca Baillee was involved in this conspiracy to sexually assault him, would he have been able to reason about the rightness or the wrongness of the act of killing her with a moderate degree of a sense of composure?
A. Well, again excluding?

Q. Yes?
A. Putting aside the fact that his loss of calmness and composure was due to the effect of drugs, putting that aside, the answer is ‘No’ he couldn’t reason with sense and composure at that time .”

142 Accordingly, Dr Nielssen’s initial opinion on the accused’s capacity to know right from wrong was altered in a significant and crucial respect, although in re-examination (at transcript, p.150), he inconsistently appeared to retract from the concession he made in the last answer quoted in the paragraph above but without explaining the basis for doing so. It is, of course, essential that an expert witness explain the basis or criteria for an expert opinion: Makita (Australia) Pty Limited v Sprowles (2002) 52 NSWLR 705, 729-735.

143 The Crown emphasised that Dr Nielssen expressed his initial conclusion on this point by drawing attention to the offence itself. The Crown’s contention was that, if one accepts that the accused bound the deceased by her ankles and wrists before stabbing her, then objective facts of that nature could lead to a finding or conclusion that Dr Nielssen’s initial conclusion at least was properly based.

144 The Crown also submitted that regard should be had to the fact that the accused stabbed Ms Baillie numerous times, in particular, in the area of her neck and it must have been clear to anyone that that was an area of the body of wounds of that description would almost certainly bring about death.

145 I have taken these matters into account. However, an analysis of Dr Nielssen’s evidence establishes that he accepted a number of fundamental matters as follows:-

(1) That on the history, including medical records, the accused had suffered from chronic schizophrenia for some years – from at least 2004 and the condition may have been triggered by amphetamine use during adolescence. Often schizophrenia is “ drug-exposed” , the person affected has an underlying tendency to schizophrenia and on later taking drugs, he or she will often experience schizophrenia-like psychotic episodes.

(2) Whilst the accused did not, in his opinion, have the most typical form of schizophrenia, he did have chronic false beliefs and chronic auditory hallucinations that are typical symptoms of the disease.

(3) The fact that the accused’s delusional/false beliefs had persisted over a period of years supported schizophrenia as the “correct diagnosis”.

(4) That, at the time of stabbing Ms Baillie, the accused was suffering from that disease.

(5) Schizophrenia interferes with the person’s interpretation of events and illogical thinking affects the conclusion he or she makes. It also may affect a person’s perception and moral reasoning.

(6) At the time of killing Ms Baillie, the accused was suffering from both the underlying psychotic illness of schizophrenia and from the effects of amphetamines.

(7) The fact that the underlying psychotic illness had been ongoing was supported by the fact that when the accused ceased taking drugs whilst in custody, the chronic mental illness persisted.

(8) The underlying condition of schizophrenia constituted an abnormality of mind. This itself significantly impaired the accused’s perception of events and his ability to tell right from wrong.

(9) The history given after the accused killed Ms Baillie suggested that his motivation in killing her was that he was attempting to stop people from sexually assaulting him, his delusional beliefs having expanded to include Ms Baillie.

Dr Allnutt

146 Dr Allnutt, who is very experienced in these matters, emphasised that the issue of judging right from wrong “is very much a lay person issue”. He correctly observed that psychiatrists may provide explanations that the tribunal of fact may use in resolving the issue. The explanations of Dr Allnutt were based, to an extent, upon the recorded history of the accused’s mental illness. These included:-

(1) The fact that, on his mother’s account, the accused lived for many years with the fixed belief amounting to a delusion earlier described.

(2) Such delusions are indicative of a longstanding psychotic illness and provided a moral justification for retaliating against those who he believed were persecuting him.

(3) The delusions from which the accused suffered extended to include Ms Baillie in the sense that, in his mind, she was party to the conspiracy, the subject of his delusional condition.

(4) The fact that, at times, psychotic symptoms continued after the accused stopped ingesting amphetamines such as when he was in custody. This was an indicator that something independent of drugs was accounting for his disorder of mind.

147 The history of the accused’s symptoms to which I have referred has been the subject of accounts given by Mrs Thomas to medical practitioners, to treating mental health practitioners and to this Court. The history is consistent with a long-standing psychotic illness. I was impressed by Mrs Thomas as a witness and I accept her accounts of her son’s psychotic symptoms, the circumstances in which she said they had arisen and, at times, their continuation after drug-taking ceased.

148 Dr Allnutt also gave evidence as to the reasoning capabilities of the accused. He said (transcript, 29 May 2009, p.166):-

“ His reasoning abilities are significantly impaired. There’s no evidence that anybody has ever raped him. There’s no evidence that anybody has anally raped him and yet, despite this, he can’t see the reality. He is completely disconnected from that ability to see the truth. He’s completely convinced in himself, that this has been happening for him for most of his life. To the extent that at times he’s locked himself up in the ceiling to try and prevent people from persecuting him .. .”

149 Dr Allnutt was then asked whether or not the accused’s abnormality of mind was such that his ability to judge right from wrong was substantially impaired. In this context, Dr Allnutt gave a long answer premised on the fact that the accused has lived for a long period of time with the delusion or “strong conviction” that his mother has been conspiring against him to have him raped. Dr Allnutt continued (transcript, 29 May 2009, p.168):-

“ Now if this was really happening, a lot of people get very angry with that. Would feel very angry with that. If this was really happening to somebody and people could become so enraged that they could act aggressively against the persecutor, if it was real. …
And he acts in that way because in a moral sense, even though he might be aware that it’s legally not right to do that, he gets indignant and he feels morally justified, because he’s been persecuted so long and in that sense, because the delusion provides him with moral justification, he would have difficulty in judging whether what he’s doing is right or wrong, because it affects his moral reasoning of what is right and wrong.. .”

150 Putting aside the intoxicating effects of alcohol and drugs, Dr Allnutt was asked whether the accused’s ability to judge right from wrong was substantially impaired. He stated (transcript, 29 May 2009, p.168):-

“ I think that the delusion still exists so the indignation still exists. The sense of moral, the difficulty in the moral reasoning of the wrongfulness still exists. So judging right from wrong would still be impaired. Judging right from wrong would still be impaired .” (emphasis added)

151 In relation to the defence of mental illness, Dr Allnutt’s opinion was that the accused’s delusion that he was being sexually assaulted by a gang, which included his mother, was a defect of reason. He said (transcript, 29 May 2009, p.168):-

“ Psychosis is a condition that, by definition, causes a defect of reason. It is a - by definition, causes a defect of reason. People with psychosis cannot reason like … normal people about the external reality. They believe things to be untrue and they can’t reason their way out of that, so it’s by definition it causes a defect of reason .” (emphasis added)

152 Mr Stratton asked Dr Allnutt whether the defect of reason from which the accused was suffering was such that he did not appreciate that he was doing wrong at the time that he killed Rebecca Baillie. Dr Allnutt responded (transcript, 29 May 2009, p.168):-

“ There are elements here that do suggest an awareness of wrongfulness, but the awareness of wrongfulness seems to be a balanced - I mean weighted on awareness of legal wrongfulness. I think that for the reasons that I’ve just stated, he would have felt morally justified . However, given his mental state at the time, even if there was some knowledge or some awareness of the wrongfulness, I don’t think he would have been able to reason about that issue. Even if he could see it, to some degree. I think his mental state was such at the time that he couldn’t reason about that, with a moderate degree of sense and composure . So even if one said he could see the apple, he couldn’t reason about the apple, because he was so psychotic .” (emphasis added)

153 Whether the fact that the accused took rings and money and a car from the deceased, after killing her, necessarily meant that he knew that what he was doing was morally wrong was a matter addressed by Dr Allnutt in the following terms (transcript, 29 May 2009, p.169):-

“ … look that’s a difficult question you know. That’s one of the factors that one needs to consider is that it - there is suggestion of potentially an alternative motive, right, stealing her rings. To kill somebody like that to steal the rings would be, it’s taking advantage of a situation, but also what we must remember is that he is, if one factors in the drugs and considers his mental state at the time, he is very mentally unwell at that time. He’s irrational. He doesn’t - he would not - it would be unfair to expect him to make decisions that we would expect people to make under those circumstances. He might make some and he might make others, but he’s psychotic and inherently unpredictable as far as rational decision making is concerned. Some might be rational, some might be irrational. But that is something to factor in. For me I don’t think it’s enough to negate the issue of wrongfulness as far as his moral justification, based on the information he’s given us about what was going on in his mind at the time .” (emphasis added)

154 I accept Dr Allnutt’s analysis to which I have referred. I consider that his opinion in relation thereto was well-supported by relevant factual matters that were otherwise established in evidence.

Evidence of Dr Furst

155 Dr Furst also concluded that the accused was unlikely to have been able to reason about his actions with a moderate degree of sense or composure.

156 In that respect, Dr Furst considered that the accused did not really understand the wrongfulness of his actions and, importantly, that he could not reason about the wrongfulness of his actions. Dr Furst’s opinion, in this respect, which I accept, took into account that the accused (transcript, 28 May 2009, p.200):-

“ Was very angry with his mother and very angry about her because of these delusional beliefs and that sort of illogical, if you like, illogical belief about the mother extended to the victim and he most likely became angry with her as well and felt trapped. Felt very overwhelmed by that and in that context I didn’t believe that he could really reason about his actions with the requisite degree of sense and composure in that case. So that’s why I thought he had the mental illness defence open to him .”

157 In terms of the defence of substantial impairment, Dr Furst concluded, I consider on the evidence correctly, that the accused’s ability to judge right from wrong at the time he killed Rebecca Baillie was substantially impaired. In his report, Dr Furst’s opinion was that his psychosis significantly impaired his capacity to understand the reality of events or control his actions.

Conclusions

158 The voluntary ingestion of prohibited drugs including amphetamines in itself provides no excuse or justification for unlawful or criminal conduct which is carried out under the influence of such drugs.

159 In the present case, it has been necessary to give close consideration to the evidence that establishes the existence and the effects of any underlying mental illness in the accused at the time he killed Ms Baillie and to separately evaluate the effects on him of having ingested methylamphetamines.

160 It is clear on the evidence that the accused was affected by methylamphetamines in the hours before he stabbed the deceased. It is equally clear that, over several years, he had suffered from schizophrenia and its effects.

161 On the evidence, the accused, at the time he stabbed Ms Baillie, suffered from an abnormality of mind. In that respect, I note:-

(1) The abnormality of mind significantly impaired the accused’s perception of events and his ability to know right from wrong (see also (3) below).

(2) That on the night of the killing, in his mind, it is probable that he was attempting to prevent himself from being sexually assaulted and to bring the perpetrators to justice.

(3) The accused’s statements to his mother when she asked him about the deceased’s death, are open to the interpretation that he was intent to get to “the truth” and they revealed his mental state was such that he could not understand the gravity of or the moral wrongness of the act of killing the deceased.

(4) His delusional beliefs expanded to include Rebecca Baillie as part of the conspiracy.

(5) Leaving aside the effect of drugs on the accused, he could not reason with a moderate degree of composure in the state he was in.

162 The medical evidence of the three psychiatrists overall establishes that the accused’s long-standing schizophrenia, quite apart from the effect of the drugs that he had taken, adversely affected his capacity to reason to a very marked extent.

163 The evidence, however, does not establish that the accused did not know the nature and quality of his acts. The accused, in other words, would have had sufficient awareness that he was stabbing the deceased. I, accordingly, conclude that the accused did know the nature and quality of his acts in stabbing her.

164 The medical evidence, taken in conjunction with other evidence to which I have referred, however, does also firmly establish, on the probabilities, that the accused did not know that what he was doing was wrong in that he could not reason with a moderate degree of sense and composure that what he was doing was both legally and morally wrong. It is clear in this respect that the accused’s delusional beliefs to which I have referred irrationally expanded or incorporated the deceased into his delusional belief system.

165 The expert medical and other evidence therefore leads to the conclusion that effects of the delusional belief on the accused, consequent upon his schizophrenic condition, were sufficient in themselves to deprive him of knowing right from wrong apart and separate from the amphetamine effects to which I have referred.

Practical and legal consequences of a finding of not guilty by reason of mental illness

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

167 The statute which governs cases like this, the Mental Health (Forensic Provisions) Act 1990, requires me to make 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.

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

169 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 this release.

170 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.

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

172 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.

173 If release is ordered, then it may be on conditions or it may be made unconditionally. 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.

174 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 educational 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 catering for forensic patients.

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

176 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.

Orders

177 I am satisfied that at the time of doing the acts causing death the accused was mentally ill so as not to be responsible in law for his acts and, accordingly, I am required to return a special verdict.

178 Tyron Jarrad Ham upon the charge that between 10 and 14 September 2007 at Stockton in the State of New South Wales you did murder Rebecca Baillie I find that you are not guilty by reason of mental illness.

179 I order that the accused be detained, pursuant to s.39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law.

180 The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by this Court.

181 Finally, I would like to take the opportunity of extending my sympathy to Ms Baillie’s family, who would undoubtedly be deeply affected by this tragic event.

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