R v Lancaster
[2013] NSWSC 322
•10 April 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Lancaster [2013] NSWSC 322 Hearing dates: 8/04/2013 Decision date: 10 April 2013 Before: Fullerton J Decision: 1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty of the charge of murder by reason of mental illness is returned.
2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Dwayne Anthony Lancaster be detained a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
3. I direct that the Registrar notify the Minister of Health of these orders.
4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.
Catchwords: CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict Legislation Cited: Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990Cases Cited: R v Minani [2005] NSWCCA 226; 62 NSWLR 490 Category: Principal judgment Parties: The Crown
Dwayne Anthony Lancaster (Accused)Representation: Counsel:
L Carr (Crown)
J Watts (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
File Number(s): 2011/85689
Judgment
HER HONOUR: Shortly after midnight on 16 March 2011 the deceased, Raymond Ronald Flett, was attacked and killed by the accused, Dwayne Anthony Lancaster, while he was in bed on a rural property he owned at West Kempsey and which he shared with his de facto partner, Heather Gladman. Mr Lancaster was a non-paying boarder at the property. He moved to the property at the deceased's invitation within a week or so of his death.
Ms Gladman witnessed the fatal attack on the deceased. However, after failed attempts to intervene in defence of the deceased and a failed attempt to call 000 for assistance she fled from the property into the bush in fear for her life.
Police found the deceased shortly before midday on 16 March 2011 on the veranda of his house after responding to a call from a neighbouring property earlier that morning when Ms Gladman emerged from the bush disoriented and in a dishevelled and highly distressed state after hiding in the bush for some hours.
The deceased was aged 57 at the time of his death. At autopsy a complex wounding pattern to the deceased's head and neck was revealed, including blunt force injuries to the back of the head and left temporal region with an associated complex underlying skull fracture. This wounding pattern was the product of at least nine separate blows. A neuropathological report confirmed the presence of a traumatic brain injury with an associated subarachnoid haemorrhage over the left frontal and temporal lobes. There were also deep incised wounds to the front of the deceased's neck transecting the oesophagus, the trachea, the carotid artery and the internal jugular vein. A number of scratches (in the form of drag marks) were revealed on his upper right back of the deceased and his right arm. A length of electrical cord and a phone plug cord were bound around the deceased's neck. The forensic pathologist was not able to appoint the temporal sequence of the various injury patterns. The deceased had a blood alcohol concentration of .158g/100ml at the time of death.
It was not in contest that Mr Lancaster used a U-shaped iron shackle to inflict the injuries to the deceased's head and a meat cleaver to inflict the wounds to his neck. The iron shackle was found by police in a gumboot on the veranda of the deceased's house. The meat cleaver was found on the deceased's bed. The drag marks were associated with Mr Lancaster dragging the deceased's body from the bed to the veranda. The cords were bound around the deceased's neck in the course of the assault.
On 16 March 2011 Mr Lancaster was charged with murder. With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986, his trial was listed to proceed without a jury. On 8 April 2013 Mr Lancaster was arraigned before me. He pleaded not guilty on the grounds of mental illness as provided for in s 22(2) of the Mental Health (Forensic Provisions) Act 1990 (the Act).
The sole issue at trial was whether Mr Lancaster had discharged the onus of establishing, on the probabilities, that he should be acquitted of murder on the grounds of mental illness pursuant to s 38 of the Act. This is sometimes referred to as a special verdict. The Crown did not seek to persuade me that a special verdict ought not be entered.
The defence of mental ilness is made out if I am satisfied that at the time of the killing Mr Lancaster was suffering from a mental illness such that he did not know that it was wrong to deliberately assault the deceased with the iron shackle to his head and then to bind his neck with electrical cord before or after which he inflicted penetrating wounds across the front of the deceased's neck. These assualtive acts, in combination, caused the death of the deceased, an issue about which there was no disagreement and which I am satisfied is established beyond reasonable doubt.
In deciding whether a special verdict should be entered I am obliged to have regard to the legal and practical consequences of a finding that Mr Lancaster is not guilty of murder on the grounds of mental illness. I am not, however, required to decide whether the requisite intent for the offence of murder, that is, either an intention to kill or to inflict grievous bodily harm, is proved (R v Minani [2005] NSWCCA 226; 62 NSWLR 490). That question only arises if I do not find that the defence of mental illness is established. For the reasons that follow, that issue does not arise in this case.
The Crown tendered a number of witness statements from people who had observed fluctuating changes in Mr Lancaster's behaviour in the weeks before the deceased's death, including two statements from Ms Gladman who gave a detailed account of the events of 15 March 2011 leading to the assault in the late evening of that day, or early morning of the next day, and a detailed description of the fatal assault at or shortly after midnight before she fled from the property. The other materials tendered included the results of the police investigation, including Mr Lancaster's account to police upon his arrest; a post-mortem report of Professor Lyons and a report from Dr Buckland, a neuropathologist; two reports obtained by Mr Lancaster's solicitor from Dr Olav Nielssen, forensic psychiatrist, dated 10 August 2012 and 7 December 2012, and two reports obtained by the Crown from Dr Allnut dated 5 August 2012 and 26 March 2013. The reports from both consultant forensic psychiatrists reflect their ultimate opinion that at the time of the assaults Mr Lancaster was suffering from a mental illness that deprived him of the capacity to consider the moral consequences of his behaviour.
No oral evidence was called in the proceedings.
The relationship between Mr Lancaster and the deceased preceding and on the night of the killing
A week or so prior to the killing the deceased invited Mr Lancaster to reside in a detached dwelling, described as a "studio", on his property at Kempsey after he and Ms Gladman met Mr Lancaster at a local music event. It is not entirely clear where Mr Lancaster was living prior to accepting that invitation although it would appear that he had in recent times been a resident in government subsidised accommodation in the Kempsey area and before that in a caravan.
Ms Gladman was a practiced musician who also taught music. Mr Lancaster also displayed some musical talent. The deceased apparently enjoyed the company of musicians, convening musical sessions at his home from time to time. It would appear that after Mr Lancaster was invited to reside at the deceased's property there was a loose arrangement that Mr Lancaster and Ms Gladman would play music together and that Mr Lancaster would receive some musical tuition from her.
Both the deceased and Ms Gladman were aware that Mr Lancaster smoked cannabis (to which they apparently raised no objection) and that he had been maintained on a methadone program some time after his release from prison in early 2009 after serving a lengthy sentence for armed robbery. The evidence would suggest that he was an habitual user of cannabis, using up to two grams per day.
Mr Lancaster took up residence in the studio but within a few days moved into what was described as "a shed" some distance from the main house after reporting to Ms Gladman that he believed the studio was "evil" and was "messing with his head". Over the intervening days, Mr Lancaster visited with the deceased and Ms Gladman and on occasions they played music and shared meals together. She reported to others at about this time (and to police after the incident) that Mr Lancaster's behaviour was often erratic, which she described as "out of character for a normal person".
One of Mr Lancaster's friends, Anthony Wilson, also an amateur musician, was invited out to the property by Mr Lancaster to play some music some short time after he had taken up residence. In his statement to police, Mr Wilson said that Ms Gladman expressed some concern to him about Mr Lancaster's erratic behaviour but that otherwise he saw nothing in Mr Lancaster's behaviour to alert him to any tension between them. He also observed that Mr Lancaster and the deceased were talking and getting on well together. Mr Wilson described Mr Lancaster as "a little bit different from other people" and to an extent "unpredictable" because he "snaps at times over little things".
On the afternoon of 13 March 2011 at a practice music session at Craig Johnson's house, Mr Lancaster took issue with Mr Wilson's criticism of Ms Gladman's guitar playing and the session was abandoned. Both Mr Wilson and Mr Johnson said Mr Lancaster was saying things like, "The world has got to work around me. I am the leader of the band", while he was jumping around in a hyped-up manner. As quickly as his mood snapped it appeared that he calmed down, dropping to his knees whilst rocking back and forth.
On 15 March 2011 the deceased and Ms Gladman travelled to Port Macquarie to attend to shopping leaving Mr Lancaster at the property. It is not clear whether they informed him of their intentions before leaving.
That same morning Mr Lancaster told Mr Johnson that the people he was living with had given him the property, after having taken what they wanted of their personal effects, and that he was keen to renew his connection with the session musicians. That same day he contacted another friend, Stephen Sullivan, to come out to the property as a matter of urgency. When Mr Sullivan arrived, Mr Lancaster told him that the owners of the property required him to kill some goats which were restrained under the house and that they had gone away for a holiday telling him he could stay at the property as long as he wanted. Mr Lancaster had a meat cleaver with him. Mr Sullivan persuaded him not to harm the animals.
Later that afternoon, upon their return from Port Macquarie, Ms Gladman and the deceased found Mr Lancaster sitting on a chair on the path near the main house, looking agitated. He challenged them both, in effect demanding to know what they were doing, why they had moved items around the house and why tyres at the front of the property had numbers on them. He was behaving in what Ms Gladman described as "a paranoid manner". Being unable to reason with Mr Lancaster she ultimately demanded that he leave the property. The deceased apparently found the meat cleaver near the goat compound and when Mr Lancaster was asked what it was doing there he said that he had taken it to kill the goats because he thought the goats were making Ms Gladman angry. She remonstrated with him and warned him not to harm her animals. In her statement she said that about 15 or 20 minutes later the deceased went up to the shed to speak to Mr Lancaster when an argument erupted. At that time the deceased told Mr Lancaster he had to leave the property the following day.
Some time later that afternoon or evening Mr Lancaster joined the deceased and Ms Gladman for a meal in the main house. Ms Gladman said he appeared to her to be cheerful and happy, looking forward to the future, and that it did not appear to her that he had been told, or understood, that he had to leave the property.
After dinner a further argument erupted, this time about the deceased's alcohol consumption (the deceased, in Ms Gladman's estimation, having drunk some whiskey and at least two bottles of wine that night) and what Mr Lancaster thought was the deceased's disrespectful treatment of her.
The argument did not erupt into violence. Mr Lancaster left the main house and the deceased went to bed. Ms Gladman was cleaning the kitchen and generally tending to household duties when she heard Mr Lancaster outside yelling and swearing in a highly agitated state. She went outside and tried to settle him but his agitation increased. She told police that he kept asking for a gun which he said he wanted to use to kill the deceased. When he was told the deceased was asleep and there was no gun in the house he said repeatedly, "If he wakes up I will kill him". When Ms Gladman said she would call the police Mr Lancaster took the phone from her and cut the receiver from the wall. Despite her efforts to restrain him, Mr Lancaster then went in to the deceased's bedroom and launched himself at the deceased who was lying on the bed and attempted to strangle him. At this time Ms Gladman said Mr Lancaster was saying, "No Mum, don't Mum. No". She then grabbed for the iron shackle (which was beside the bed, apparently being part of a restraint used to contain the goats). Mr Lancaster wrested it from her and struck her with it before bringing it down repeatedly onto the deceased's head whilst repeating, "I don't want to hurt you mum". He also said, "It will be alright, we can do this". At this time Ms Gladman could hear the deceased gasping for breath. Mr Lancaster called her to get a rope saying, "He's not dead yet". Under the pretence of getting a rope she went outside and headed off into the bush. From her hiding place she could hear Mr Lancaster walking around the house in an aggressive and agitated state calling out to her, "Don't go mum, don't go. Alright I'll wait for you to come out". She maintained her hiding place. She then heard him yell out "The fucking keys better be there" and heard him opening and closing car doors. She then heard him having a shower and singing, after which she heard him start his motorcycle. In a state of disorientation and terror, she remained in the bush until she eventually followed the river to her neighbour's property the following morning.
Mr Lancaster's various statements after the killing and to police after his arrest
Mr Lancaster drove to Kempsey on his motorcycle on the morning of 16 March 2011 and went directly to where Peter Alder worked with Rodney Goodwin in a business constructing metal water tanks. Mr Alder had known Mr Lancaster at that time for about 18 months and knew that he had moved into what he was told was a hippy commune at the invitation of some people Mr Lancaster had met at a music event. When he arrived at the business that morning Mr Alder described Mr Lancaster as being in the same state of mind as he had presented with over the previous two weeks, namely, "off his head to some degree ... of a different mind than normal". Mr Alder said that after Mr Lancaster arrived he started to talk about things in general and then suddenly said, "I killed him". When he was asked who he had killed he said, "The man out there. He thought he was Jesus. He wanted me to do it. ... She stood there and watched me do it, and then turned and walked away". Mr Lancaster then started to cry before he asked for petrol for his motorcycle and left. Neither Mr Alder nor Mr Goodwin took Mr Lancaster's statements seriously.
Meanwhile, whilst at the property police prepared themselves for a confrontation with Mr Lancaster having been told by Ms Gladman of the events of the night before and being informed by her that Mr Lancaster was, so far as she knew, still at the property.
Police saw Mr Lancaster's motorcycle discarded and partially camouflaged on the side of the road near the shed. They then saw Mr Lancaster emerge from the shed and walk towards them. He submitted to their direction to lie on the ground and to keep his hands in the air to allow for the attachment of handcuffs. At this time Mr Lancaster said, "I won't hurt anyone ever again ... There's a dead man down the hill". He was then placed under arrest and cautioned.
A short time later, after the police had located the body of the deceased, Mr Lancaster denied directing police to the deceased. He said that he was living on the property with Ms Gladman who had been teaching him music, and that she lived alone. When he was asked whether he had assaulted the deceased he said, "I don't know what you're talking about". When he was asked whether he understood that the deceased's body had been found he said that he did not understand what was happening.
En route to the police station Mr Lancaster was chanting, "Not allowed to kill, not allowed to kill. That's the final lesson". At the police station he was heard to say, "Ray I'll never hurt any man again. I will never watch and hurt again". Whilst in the dock he was heard to say, "They've been feeding me - Heather and Ray... I'm never gonna hurt a man ever again... Don't let Heather go, she is an evil woman... No man is god... I'm a dog - its god backwards... Japan ran out of rice and it wasn't my idea - Ray told me they ran out of rice... I'm not God, please test me, I learned, I grew, they let me sing all the time".
Mr Lancaster's mental health after his arrest
Since being remanded in custody, and prior to being interviewed by Dr Nielssen and Dr Allnutt in August 2012 for the purpose of these proceedings, Mr Lancaster was provisionally diagnosed by Dr Dayalan, consultant forensic psychiatrist, in March 2012 as having suffered a drug induced psychosis that appeared to have resolved with antipsychotic medication. While that diagnosis has, in my view, been overtaken by the reports of Dr Nielssen and Dr Allnutt, Dr Dayalan did have regard to Mr Lancaster's prior psychiatric history gathered by Justice Health over the course of his institutional history as a serving prisoner between about 1998 and 2009, namely:
The information gathered from the interviews and documents reviewed suggest that Mr Lancaster has a history of opioid dependence and abuse of cannabis and amphetamines. He is currently on methadone maintenance program.
Mr Lancaster has a history of mood instability, multiple self harm attempts, poor impulse control, difficulty in controlling anger and transient psychotic symptoms. This is consistent with a diagnosis of Borderline Personality Disorder and concurs with the opinion of a number of other psychiatrists who have seen Mr Lancaster whilst in custody.
Dr Dayalan also set out Mr Lancaster's personal history as follows:
Mr Lancaster stated that he was born in Australia but reported that he could not remember where in Australia he grew up. It was noted from an earlier entry that he had grown up in the Campbelltown region... He described his father to be an alcoholic who used to physically abuse him. He stated that he had never met his biological mother but had a good relationship with his foster mother. [I note that the materials tendered on the trial included a statement from Judith Mazz, his foster mother, which attests to that relationship.] He denied a history of sexual abuse. He stated he was not aware of any family history of mental illness. He had reported...that his father had committed suicide and had been sexually abused by one of his dad's friends...
In regard to his schooling he stated that he had been expelled from school on a number of occasions. He admitted a history of excessive fighting in school, running away from home, damaging property, stealing, being placed in boys home and juvenile detention centre. He stated that he left school in Year 8 when he [was] expelled. He described himself to have been average [academically]. He stated that he has [only been employed once] which was building cool rooms, and he had continued this for about 12 months. He denied any problems in this employment but it was terminated following his arrest. He reported to have had two relationships in the past. He stated that they had not lasted more than a couple of months.
Other psychiatric evidence tendered at the trial
Dr Nielssen
In August 2012 Dr Nielssen examined Mr Lancaster in custody. He summarised his presentation at that time as follows:
Mr Lancaster presented dressed in prison clothes with short hair and a neatly trimmed beard. He smelled strongly of tobacco and had tobacco stained fingers. He had tattoos visible on his neck and hands including some professionally drawn tattoos on his hands. There were no obvious signs of neurological disorder, for example, ... abnormal movements or impairment in articulation. He had an institutional manner and spoke with the usages of someone who had been a long term prisoner, and made liberal use of profanity. He was suspicious of questions, made little eye contact and his underlying mood seemed quite depressed. He was labile in his manner and became easily angered when taken to some aspects of the allegations and his personal history. He reported typical symptoms of schizophrenia-like psychosis in the form of hallucinations of voices that seemed to come from the radio, which he recognised to be due to mental illness and did not offer a delusional explanation for his experiences. However, he described delusions of reference around the time of the offences, and what seemed to be delusional beliefs regarding [the deceased] and Ms Gladman.
He was approximately oriented and had some knowledge of current events, for example, the dates of his court hearings. His intelligence was estimated to be within the normal range from his reported literacy and his social function whilst at liberty...
When asked about his relationship with the deceased and Ms Gladman he confirmed the account given by her and others as to how they met and the circumstances in which he came to be living with them at the deceased's property.
He told Dr Nielssen that he had been alone for a day in the week before the offence and he had "spun out" and felt as though he was in some kind of danger. He said at times he felt that the deceased and Ms Gladman were "talking to [him] and not to [him] like they had some sort of ulterior [motive] ... what they were saying did not add up". He went on to say that he thought that they were drugging him as he would lose days on end. He said, "Then they killed a little goat and put its collar on their dog and feed me the meat". He said that Ms Gladman played with bones on the table and pretended to be able to read them and that was when it occurred to him that they may have been involved in the occult. When he was shown Ms Gladman's statement to police he said, "I believe she has killed him and told them that I've done it... I believe she has drugged my coffee". He went on to say that "she was the more sinister of the two". He said he believed that he called out to his mother because she had drugged him and that the police were hiding his toxicology results.
Dr Nielssen offered a differential diagnosis which included a substance dependence and abuse disorder, by reason of a history of long standing daily use of cannabis and complications of cannabis use, in particular its role in triggering an acute psychotic episode around the time of the offence. He also diagnosed a probable schizophrenic illness (in partial remission) on the basis of a reported history of long standing and typical auditory hallucinations. He also noted Mr Lancaster's account of delusions of reference around the time of the offence and enduring delusional beliefs regarding Ms Gladman soon after the offence with an observed lability in mood accompanied with tangential thinking. The mental illness was described by Dr Nielssen as being in partial remission as a result of Mr Lancaster's treatment with potent antipsychotic medication in the relatively drug-free environment of a maximum security prison.
Dr Nielssen concluded that despite the limitations of a single interview and the limited documentation that was available to him, his preliminary opinion was that Mr Lancaster had developed delusional beliefs regarding the deceased and Ms Gladman and that the offence was motivated by a defect of reason arising from those beliefs rather than any rational motive. In Dr Nielssen's opinion, Mr Lancaster's acutely psychotic state, apparent in the period after his arrest, and his increased arousal and disorganised thinking associated with an acute psychotic illness rendered Mr Lancaster unable to reason with any sense or composure about the wrongfulness of his actions at the time of the fatal assault.
Dr Allnutt
Dr Allnut examined Mr Lancaster at the request of the Crown in August 2012. He did not have Dr Nielssen's report available to him at that time. His observations on the presentation of Mr Lancaster in the interview were similar to those described by Dr Nielssen. His mental status examination was described as follows:
[He] presented as somewhat irritable but cooperative; he complained about feeling claustrophobic and wanting to leave the interview relatively early; his replies were relatively short and brief; his affect was restricted; he endorsed a number of depressive symptoms but none of mania or hypomania; there was not suicidal ideation plan or intent; he endorsed a number of perceptual phenomena in the form of auditory hallucinations and referential ideas as well as paranoid ideas that others were planning or plotting to harm him; he endorsed a number of symptoms of anxiety as well; he presented as cognitively reasonably intact but his capacity for insight and judgment was questionable.
So far as Mr Lancaster's psychiatric condition was concerned, Dr Allnutt was of the view that his symptoms were consistent with probable mild psychotic phenomena that had continued unabated since his incarceration in March 2011. Although he was guarded in his diagnosis, Dr Allnutt observed that Mr Lancaster manifested ongoing symptoms of a depression and probably psychosis (which in his view was likely resolving secondary to medication and abstinence from illicit drugs). Being aware that Dr Nielssen had recently interviewed Mr Lancaster, Dr Allnutt reserved his ultimate opinion as to Mr Lancaster's mental state at the time of the offending until such time as he had considered that report.
Dr Nielssen examined Mr Lancaster in custody again on 14 November 2012 and 6 December 2012. He summarised his presentation at that time as follows:
... He was more subdued in his manner than during the previous interview, but did not seem as depressed. Moreover, his judgment had also improved, as he did not swear or become heated and was more forthcoming and reflective about the events around the offence and about his mental state at that time. He reported typical symptoms of schizophrenia-like psychosis in the form of hallucinations of voices, which he recognised to have been due to mental illness, and also identified his beliefs regarding [the deceased] and Ms Gladman to be delusional.
He was correctly oriented and had some knowledge of current events, for example, the dates of his transfers and his trial. His intelligence was estimated to be within the normal range, from his reported literacy and his social performance whilst at liberty...
The additional history obtained during the interview, and the information in medical records made available to Dr Nielssen, including Mr Lancaster's Justice Health medical record since his remand, confirmed a diagnosis of schizophrenia, further supporting Dr Nielssen's earlier opinion that Mr Lancaster's behaviour at the time of the killing was motivated by delusional beliefs and that the high level of arousal associated with his psychotic state, and the gross disturbance of his capacity for logical thinking, deprived him of the ability to reason with sense or composure about alternative courses of action that were open to him (presumably at the time of the onset of his anger at the deceased's consumption of alcohol leading up to the time of the fatal assault). Dr Nielssen also noted Mr Lancaster's ongoing progress in recovering from the acute phase of the illness but confirmed the need for indefinite treatment and support, including a maintenance programme of antipsychotic medication.
Dr Allnutt furnished a further report in March 2013 by which time he had been provided with the reports of Dr Nielssen and Mr Lancaster's Justice Health notes, together with the report by Dr Dyalan in March 2012 prepared for Justice Health. After considering that material (and reviewing the witness statements), Dr Allnutt concluded:
Based on the information provided to me, the defendant suffers from a chronic psychotic disorder; while a differential diagnosis of a drug induced psychosis is a reasonable consideration, on balance, the persistence of symptoms despite treatment for a fairly lengthy period of time after his arrest in an environment that has less access to drugs, suggests a more chronic condition independent of substances; the expectation would be that a drug induced psychosis would resolve more rapidly so a diagnosis of a chronic psychotic disorder such as a chronic paranoid schizophrenia or a schizoaffective disorder is the more relevant diagnostic category; at the time that I saw him he continued to manifest residual but resolving symptoms of psychosis and mood disorder, secondary to the medication that he is receiving.
When considering the question as to Mr Lancaster's mental state at the time of the offending, the issue that was residual from the earlier report, he said:
I have considered the possibility that the alleged offence was merely an angry reaction to being asked to leave [the deceased's property]; however when taking into consideration the objective evidence by witnesses (who noted a deterioration in his mental state characterised by disorganised communication, his long history of cannabis use, his odd behaviour and statements reported by [Ms] Gladman prior and during the alleged offence; and his demeanour and apparently odd statements during the forensic procedure), and considering this, in light of the history he provided and the opinion of treating psychiatrists, on balance he was suffering a mental illness at the material time of the alleged offence and that his behaviour was driven by a mental illness.
Mental state at the time of the offence
As I have noted, the consultant psychiatrists are of the unanimous view that at the time of the killing Mr Lancaster was suffering from a disease of the mind, being schizophrenia or a schizoaffective disorder, that prevented him from recognising the moral wrongfulness of his actions and which operated to compromise his capacity to understand the true nature and quality of his actions. Having regard to their expert opinion and the other evidence tendered in the proceedings I am satisfied that the defence of mental illness has been established and that a verdict of not guilty by reason of mental illness should be returned.
Both Dr Allnutt and Dr Nielssen were of the opinion that Mr Lancaster requires ongoing psychiatric care and supervision. I note that he is not detained as a forensic patient but that as at December 2012 was housed at the Parklea Correctional Centre where he had a job as a sweeper. On the other hand, his counsel does not submit that I would order Mr Lancaster's release into the community, either unconditionally or on conditions under s 39(2) of the Act, there being no evidential basis to support a submission by him or a finding by me that neither his safety nor the safety of other members of the community would not be put seriously at risk were he released. The alternative is to order that he be detained in custody under the supervision of the Mental Health Review Tribunal until a decision is made to release him under s 39(1) of the Act.
The Tribunal's functions include a review of his case as soon as practicable after an order is made under s 39 of the Act. The Tribunal may make orders thereafter concerning his continued detention, care or treatment on review at six monthly intervals and make appropriate orders as to his continued detention, care or treatment in a hospital, prison or other place, or order his release into the community either conditionally or unconditionally. I also note that the Tribunal cannot make an order for his release unless it is satisfied that his safety or any member of the public would not be seriously endangered and that the Tribunal must notify the Minister of Health and the Attorney General in advance of any order for his release in order that the Executive may make submissions to the Tribunal in relation to that question.
Orders
Accordingly, I make the following orders:
1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990, a special verdict of not guilty of the charge of murder by reason of mental illness is returned.
2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Dwayne Anthony Lancaster is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
3. I direct that the Registrar notify the Minister of Health of these orders.
4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.
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Decision last updated: 10 April 2013
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