R v McAuley
[2022] VSC 709
•16 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2022 0109
Between:
| THE KING | |
| and | |
| RORY McAULEY | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2022 | |
DATE OF JUDGMENT: | 16 November 2022 | |
CASE MAY BE CITED AS: | R v McAuley | |
MEDIUM NEUTRAL CITATION: | [2022] VSC 709 | |
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CRIMINAL LAW – Theft, attempted murder, threat to kill and affray — Accused, aged 20, at shopping centre, took knife from shelf of shop, stabbed two persons, threatened another and terrified members of public — Accused psychotic at time as a result of mental illness — Defence of mental impairment — Consent mental impairment hearing before judge alone — Two psychiatrists opined accused could not reason with moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong — Verdicts of not guilty by reason of mental impairment directed — Accused declared liable to supervision — Matter adjourned so that necessary further examination, report and certificate of available services might be obtained — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 41 & 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Willard | Papa Hughes Lawyers |
HIS HONOUR:
Background facts
At about 8:00 a.m. on 18 October 2021, Rory McAuley went to the Barkly Square Shopping Centre in Brunswick. While there, he engaged in various serious acts of violence to others and himself. He was in a psychotic state and suffering delusions as a result of his schizoaffective disorder. Only days before, Mr McAuley had been released from a one-month admission at Orygen Inpatient Psychiatric Unit. He had his twentieth birthday during that admission, and turned 21 only last month.
Once in the shopping centre, Mr McAuley took a knife from the shelves of the Woolworths supermarket. He could be heard behaving erratically and shouting.
As he neared the express checkout, Mr McAuley approached Scott Briant, a customer aged 60. Mr McAuley said, “You have to die,” as he lunged at Mr Briant with the knife, stabbing him to the forearm and the upper lateral abdomen. Startled, Mr Briant tried to defend himself as Mr McAuley repeatedly stabbed at him in a frenzied attack.
Mr McAuley then ran from Woolworths and towards K-Mart, where there were numerous people standing in a line outside. They dispersed in a frantic manner as Mr McAuley ran back towards the southern entrance.
At this time, Suzanne Stewart, another customer aged 54, entered through the southern entrance on her mobility scooter. As they crossed paths, Mr McAuley turned to Ms Stewart, raised the knife over his head and began to follow her, yelling, “You’re dead.”
Mr McAuley continued to follow Ms Stewart for some ten metres before stabbing himself with the knife multiple times in the abdomen.
He then noticed a security guard, Maninderjeet Singh (aged 23), calling triple-zero. Mr McAuley ran at Mr Singh, readjusting his grip on the knife, before lunging at and stabbing him to the lower left side of his back. As Mr Singh fell to the ground, he tried to defend himself, knocking the knife from Mr McAuley’s hand. When Mr McAuley retrieved the knife, Mr Singh got up and ran back towards the southern entrance.
Mr McAuley again used the knife to stab himself in the abdomen, while others tried to calm him down.
In the course of these events, during which people were terrified, Mr McAuley sustained a serious injury to his right hand and fingers from the knife, causing him to bleed onto the floor.
He engaged in conversation with others outside JB HiFi for about five minutes before uniform police attended. Those officers attempted to negotiate with him while he was still armed with the bloodied knife.
Four minutes later, members of the Critical Incident Response Team arrived. Mr McAuley was highly erratic. He was tasered by police before being secured on the ground and arrested.
Mr Briant was treated at the scene by paramedics and taken to St Vincent’s Hospital, where he received surgery on the knife wound to his arm.
Mr Singh had sustained a small stab wound to the lower part of his back and was taken to the Royal Melbourne Hospital for assessment and treatment.
Mr McAuley was also taken to the Royal Melbourne Hospital for treatment to his injuries. He was unable to be interviewed by police.
Ultimately, two days later, on 20 October 2021, he was remanded in custody.
Mr McAuley was charged with attempted murder and other offences. He has remained in custody in the prison system ever since.
After committal to this Court, Mr McAuley now faces an indictment charging him with the following offences:
· Charge 1: Theft of the knife;[1]
[1]Contrary to s 74 of the Crimes Act 1958 (Vic).
· Charge 2: Attempted murder of Mr Briant;[2]
[2]Contrary to s 321M of the Crimes Act 1958 (Vic).
· Charge 3: Intentionally causing serious injury to Mr Briant;[3]
[3]Contrary to s 16 of the Crimes Act 1958 (Vic).
· Charge 4: Recklessly causing serious injury to Mr Briant;[4]
[4]Contrary to s 17 of the Crimes Act 1958 (Vic).
· Charge 5: Attempted murder of Mr Singh;[5]
[5]Contrary to s 321M of the Crimes Act 1958 (Vic).
· Charge 6: Intentionally causing serious injury to Mr Singh;[6]
[6]Contrary to s 16 of the Crimes Act 1958 (Vic).
· Charge 7: Recklessly causing serious injury to Mr Singh;[7]
· Charge 8: Affray;[8] and
· Charge 9: Threatening to kill Ms Stewart;[9]
[7]Contrary to s 17 of the Crimes Act 1958 (Vic).
[8]Contrary to s 195H of the Crimes Act 1958 (Vic).
[9]Contrary to s 20 of the Crimes Act 1958 (Vic).
Mr McAuley has had a history of serious mental illness, namely schizoaffective disorder, since his teenage years. He also has had a history of using illicit drugs, including cannabis.
Consent mental impairment hearing
This morning, the matter came before me as what is sometimes called a “consent mental impairment” hearing.
Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of serious offences is determined by a jury. However, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), if a person is charged with an indictable offence (such as attempted murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence would establish the defence of mental impairment,[10] the trial judge may hear that evidence and, if satisfied that it does establish that defence, may direct that a verdict of not guilty because of mental impairment be recorded.[11]
[10]See s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[11]See s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
When arraigned on the charges this morning, Mr McAuley pleaded not guilty. It was made clear by counsel that those pleas of not guilty were intended to engage the process I have just described.
Ms Harper appeared on behalf of the Director of Public Prosecutions. Ms Willard appeared for Mr McAuley. Counsel advised that it was agreed between the parties that the proposed evidence, including the psychiatric evidence, would establish that Mr McAuley had available to him a defence of mental impairment. This was because the evidence would show that, at the time of engaging in the conduct constituting the offences charged, as a result of the effects of his psychiatric illness, Mr McAuley did not know the conduct was wrong — that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[12]
[12]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Evidence
That evidence was then led. In particular, by agreement between the parties, Ms Harper called the informant Senior Constable James West, and had him read aloud from the summary of prosecution opening, which sets out the circumstances surrounding the alleged offences. The summary of background facts I have just outlined, and which is not disputed, was taken mostly from that document.
I also received in evidence reports from two psychiatrists — Dr Jacques Claassen and Dr Jacqueline Rakov. Both psychiatrists examined Mr McAuley and had access to various relevant documents, including information about his personal and psychiatric history. I also heard viva voce evidence from both experts.
In summary, Dr Claassen offered the following opinions in his report:[13]
[13]Report of Dr Jacques Claassen (dated 21 July 2022), p 10[89].
As far as the matter of mental impairment in relation to Mr McAuley is concerned, it is my opinion that:
Øat the time of engaging in the conduct constituting the alleged offending, Mr McAuley was suffering from a mental impairment. The nature of the symptoms was psychotic and a direct result of his schizoaffective disorder;
Øat the time of engaging in conduct constituting the alleged offending, Mr McAuley knew the nature of quality of the conduct regardless of the presence of psychotic symptoms. In other words, Mr McAuley knew that he was stabbing another;
Øat the time of engaging in conduct constituting the alleged offending, Mr McAuley did not know that the conduct was wrong. As a direct result of his psychotic symptoms at the time of the alleged offending, it is my opinion that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. He psychotically believed his actions were necessary to facilitate his arrest and detention in prison to ensure his safety from those he delusionally believed were persecuting him.
In her report, Dr Rakov offered the following opinions:[14]
[14]Report of Dr Jacqueline Rakov (dated 10 February 2022), p 8[13].
[13.1] Mr McAuley has a well-established diagnosis of schizophrenia (a psychotic illness) which has been recently revised to schizoaffective disorder (a psychotic illness with a disturbed mood component). He has a long history of psychosis stretching into his teens and has been hospitalised on several occasions for episodes of the illness. He has been receiving treatment intermittently and was most recently case managed by Moreland Clinic prior to custody.
[13.2] If the Court is to accept Mr McAuley’s account of the offending, he possibly remained quite unwell throughout his admission, and upon discharge [discreetly] withdrew himself from medication almost immediately, having taken a large dose of sedative immediately after release. In coming days, he became increasingly paranoid that people were disparaging of him reporting his mother’s indiscretions and felt compelled to get himself to safety, albeit by what appears objectively by illogical and violent means.
[13.3] It is my view that Mr McAuley could very well understand the nature of what he was doing at the relevant time, that is, stabbing somebody. Given he was labouring under the presence of active psychosis, namely paranoia and disorganisation, means it was likely that he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions.
[13.4] On the basis that his active schizoaffective disorder informed and remained relevant at the time of the alleged offending, I am satisfied that Mr McAuley has a mental impairment defence available to him, as per [s 20 of the Act].
In their viva voce evidence, Dr Claassen and Dr Rakov confirmed these opinions.
Consideration and verdicts
Having considered the evidence, including the evidence of the two psychiatrists, I am satisfied, on the balance of probabilities, that the defence of mental impairment was operative at the time Mr McAuley engaged in the conduct constituting the alleged offences. In particular, I am satisfied that, at the time of engaging in that conduct, Mr McAuley was suffering from a mental impairment that had the effect that he did not know that the conduct was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
Accordingly, I find Mr McAuley not guilty by reason of mental impairment of theft of a knife (Charge 1), attempted murder of Mr Briant (Charge 2), attempted murder of Mr Singh (Charge 5), affray (Charge 8), and threatening to kill Ms Stewart (Charge 9).
I shall deliver no verdict on Charges 3 and 4 and Charges 6 and 7, only because they allege alternative offences to the attempted murders charged in Charges 2 and 5 respectively. If it were thought preferable to deliver verdicts on those charges, my verdict on each necessarily would be that Mr McAuley is not guilty by reason of mental impairment. In the orders I am about to make, I shall note these remarks under “Other matters” section.
Orders
Since there is no dispute that I should declare Mr McAuley liable to supervision, I shall make such a declaration shortly.[15] (I note that there was no submission that the Mr McAuley should be released unconditionally.[16])
[15]See s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[16]See s 23(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
I will also need to make some consequential orders and directions so that the matter may ultimately come back to me to determine the appropriate disposition.
In cases like the present, the appropriate disposition is often a custodial supervision order. Such an order would mean that Mr McAuley would be housed at Thomas Embling Hospital, which is a secure facility, where he would receive the required treatment for his mental illness. While such orders are indefinite and have a nominal period of 25 years, the period actually spent in the hospital would depend upon Mr McAuley’s progress. Once a forensic patient is well enough, which usually takes a considerable time, a period of extended leave may be granted[17] and, if that goes well enough, a non-custodial supervision order may be substituted.[18]
[17]See s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[18]See ss 31 and 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Another possibility is that, instead of a custodial supervision order, the appropriate disposition in the first instance may be a non-custodial supervision order. Such an order would see Mr McAuley released into the community with various conditions, including monitoring and treatment by mental health authorities. If his mental state and level of medication compliance were, on further examination, found to be now as it was in January and June (which I shall explain in a moment), and if any risk assessment were favourable to him, it may be that a non-custodial supervision order would be appropriate for this 21-year-old man.[19]
[19]I should note that, while a non-custodial supervision order is also of indefinite duration, it may be revoked (see s 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)). Revocation does not usually occur unless some considerable time has been spent on a non-custodial supervision order and very significant rehabilitative gains have been made.
In any event, these are matters to be discussed and determined upon the return of the matter once Mr McAuley has been assessed and the necessary report and certificate of available services have been provided.
I should add the following. Dr Rakov examined Mr McAuley in January this year, while Dr Claassen examined him five months later, in June. Both psychiatrists were of the view that, when they examined Mr McAuley, he appeared mentally stable and was suffering no psychosis. He also reported that he was compliant with his prescribed anti-psychotic medication which, presumably, is consistent with his presentation to them. While this evidence does not, and cannot, place me in a position to express a view as to what should occur upon the return of the matter, it does suggest that it might not be a matter of simply placing him on a custodial supervision order, despite the gravity of the conduct giving rise to the charges.
This same evidence also causes me to make the following remarks. As I mentioned earlier, presently, Mr McAuley is in prison, and has been there since his arrest. Now that he has been found not guilty because of mental impairment, it would be preferable if he were at Thomas Embling Hospital. Prison is a place for those serving sentences of imprisonment or for those awaiting trial or sentence without bail. Thomas Embling Hospital is the place for those found not guilty by reason of mental impairment, if they are not to be in the community.
As Dr Claassen explained in evidence, there are considerable delays between, on the one hand, findings of not guilty by reason of mental impairment and, on the other, beds becoming available at the hospital for those to be placed on custodial supervision orders.
Yet the hospital is also a place where persons in Mr McAuley’s position may be assessed and treated more readily so as to assist in determining the ultimate disposition to be imposed in consequence of findings of not guilty by reason of mental impairment and declarations of liability to supervision.
However, given that he is not at the hospital, that there is no certificate of available services before the Court allowing me to direct that be housed there in the meantime, and that there is no order granting bail, I am satisfied that there is no practicable alternative but to remand Mr McAuley in custody in prison for the moment,[20] as unsatisfactory as that may be.
[20]See s 24 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Orders
Accordingly, I make the following orders, directions and declarations:
1)Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), the Court directs that, in respect of each of Charge 1 (theft of a knife), Charge 2 (attempted murder of Scott Briant), Charge 5 (attempted murder of Maninderjeet Singh), Charge 8 (affray) and Charge 9 (threat to kill Suzanne Stewart) on Indictment No. M12192285, there be recorded a verdict that Rory McAuley is not guilty because of mental impairment.
2)Pursuant to s 23(a) of the Act, the Court declares that Mr McAuley is liable to supervision under Part 5 of the Act.
3)Pursuant to s 41 of the Act, the Court directs the Secretary to the Department of Justice and Regulation to arrange to have prepared and filed with the Court, on or before 9 December 2022, a report, prepared by a registered medical practitioner or registered psychologist, on the mental condition of Mr McAuley, such report to contain:
a)a diagnosis and prognosis of the condition or an outline of Mr McAuley’s behavioural problems;
b)Mr McAuley’s response to treatment, therapy or counselling (if any); and
c)a suggested treatment or other plan for managing the condition.
4)Pursuant to s 47 of the Act, the Court directs the Secretary to the Department of Health and Human Services, on or before 16 December 2022, to provide the Court with a certificate of available services in respect of this matter.
5)Pursuant to s 24(1)(c) of the Act, the Court orders that, pending the making of a supervision order under s 26 of the Act, Mr McAuley be remanded in custody in a prison, and is to appear on 20 December 2022 at 9:30 a.m. in this Court.
6)The matter is adjourned to 20 December 2022 at 9:30 a.m.
Those orders will be drawn up and signed, and distributed to the parties and the others at whom they are directed in due course.
Thank you to counsel and your instructors for your assistance, and also to those who have attended, including the witnesses.
Please adjourn the Court.
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