R v Melehan

[2010] NSWSC 210

CITATION:	R v Melehan [2010] NSWSC 210
HEARING DATE(S):	22 March 2010
JUDGMENT DATE :	23 March 2010
JUDGMENT OF:	Schmidt J
CATCHWORDS:	CRIMINAL LAW - judge alone trial - murder - defence of mental illness
LEGISLATION CITED:	Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Mizzi v Regina [1960] HCA 77; (1960) 105 CLR 659 Regina v Coleman [2010] NSWSC 177 Regina v M’Naghten (1843) 8 ER 718 Regina v Porter [1933] HCA 1; (1933) 55 CLR 182
PARTIES:	Regina Tamie Melehan
FILE NUMBER(S):	SC 11710/2009
COUNSEL:	Mr M O'Brien (Crown) Ms B Rigg (Accused)
SOLICITORS:	Solicitor for the Public Prosecutions (Crown) Public Defender (Accused)

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

Tuesday, 23 March 2010

2007/16340 R v MELEHAN

JUDGMENT

1 HER HONOUR: The accused Tamie Melehan was charged with the murder of David Vaughan on 25 December 2008 at Gosford, New South Wales. On 22 March 2010, the trial proceeded before me as a judge sitting alone without a jury, the accused having made an election for such a trial under s 132(1) of the Criminal Procedure Act 1986, an election which was consented to by the Crown. The accused entered a plea of not guilty.

2 Section 133(1) 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 cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury, the judge is to take the warning into account in dealing with the matter (s 133(3)).

3 There was no issue under the Mental Health (Forensic Provisions) Act 1990 as to the accused’s fitness to be tried for the offence with which she had been charged. The accused is presumed innocent. She gave no evidence, but no adverse inference flows from that election. While the question of whether the accused had stabbed Mr Vaughan, causing his death, was initially in issue, after an adjournment it was announced at the hearing that the accused did not dispute that she was responsible for the act which caused Mr Vaughan’s death. The accused pleaded not guilty to the murder of Mr Vaughan, relying upon the defence of mental illness. This defence was based on the evidence that at the time she caused Mr Vaughan’s death, the accused was suffering from a mental illness, paranoid schizophrenia.

4 It follows that if I am satisfied that the Crown has proven the elements constituting the offence of murder, I am required to consider the defence of mental illness which the accused has raised.

What occurred on 25 December 2008

5 The facts were not in dispute. Mr Vaughan and the accused had been in a casual relationship since October 2008. They resided separately at Gosford. Mr Vaughan had twice been seriously injured in accidents. The first when he was 19, when he had suffered burns to some 90% of his body and had lost a part of his left arm, when he was electrocuted at a substation at The Rocks. He then underwent some 30 operations, while hospitalised for over 5 months. The second accident occurred in 2003 when Mr Vaughan crashed his car. He spent some 3 weeks in a coma and suffered brain damage, loss of balance, impaired speech, hearing, and vision, as well as short term memory loss. Again he was hospitalised for many months.

6 On 24 December 2008, Mr Vaughan spent the day with his family and on Christmas Eve, with a friend. His father picked him up at 8.15 am on Christmas day and later that morning Mr Vaughan caught a train to Gosford, planning to spend the day with the accused.

7 Mr Vaughan arrived at the home of the accused’s mother, Loretta Watts, between 9.30 am and 10 am, where he met the accused. The accused’s mother drove the accused and Mr Vaughan to the accused’s home, dropping them there between 10.30 am and 11 am.

8 Between that time and 2 pm Mr Vaughan was attacked. He was discovered by Ms Watts naked in the shower at the accused’s home at about that time. She went there in response to a phone call from the accused, who was present when she arrived. Mr Vaughan was later found to have sustained some 16 stab wounds to the neck, some of which were rapidly fatal, penetrating the jugular veins on both sides and the left carotid artery, as well as 6 stab wounds to the chest, and 4 to the abdomen, including 2 which were inflicted post death. He also suffered a number of defensive wounds to his right forearm. The wounds were caused by a sharp cutting weapon with a thin blade. A number of knives were found at the accused’s home.

9 The accused sent a number of text messages to Robert Bowcott between 1.07 pm and 1.22 pm that day. The accused and Mr Bowcott had formerly had a relationship which had ended prior to the accused and Mr Vaughan forming their relationship, but the accused and Mr Bowcott had maintained contact. Mr Bowcott’s statement as to the text message exchange was:

'20. At 1.02.37 pm, I received the message "I got a kettle stereo jewlry perfume another stuff".

21. At 1.07.11 pm, I received the message "Miss u meet up tomorrow oh u work till what time oi can I eat this fella I think he taste good."

22. At 1.17.27 I sent a text message to Tammie's number "Eat who"

23. At 1.17.33 pm I received the message, "Can I eat him christas lunch an dinner".

24. At 1.19.14pm I received the message, "Theres enough go round if u want to join in no joke delicate meat."

25. At 1.21.31pm I received the message, "So can i eat him."

26. At 1.22.51 pm I received the message, "Dave who else dare me need help to get rid of body." '

10 At 1.53 pm the accused telephoned Mr Bowcott and said:

"I've Killed Dave. I'm about to chop him up. Come over and eat him."

11 Mr Bowcott could not speak to her, he was at Christmas lunch. He described the accused as a quiet, friendly person, who became a different person when unwell. On one occasion she had attacked him with a knife. On this occasion he thought the accused must have been delusional, given how she was speaking.

12 At 1.55 pm the accused telephoned her mother telling her that 'Were(sic) fighting, can you come & get him before I slit his throat.' Ms Watts went to the accused’s home. The accused had sought her help in the past, when she could not cope with people. She found the accused in the lounge room and Mr Vaughan lying in the shower area, naked, flat on his back. The taps were off, there was blood and she thought that he had hit his head. She yelled ‘Tami(sic) what’s happened’, rang 000 and put the phone on loud speaker. The 000 record was in evidence. She attempted CPR. Her statement indicated that as she tilted his head back, she realised that Mr Vaughan’s throat was cut open. He was cold to touch.

13 Police and ambulance attended shortly afterwards. Mr Vaughan was found to have died before their arrival. When asked by a police officer what happened the accused said:

14. I said , "What happened here today Tami?

She said , "I came home, I went inside and started sorting things out. I poured a glass of wine. Then I needed to go to the toilet but sat on the lounge. I made something to eat and was sitting on the lounge when I saw Dave's smokes and wallet on the table."

I said , "Did you go to the toilet?"

She said , "No, I made something to eat."

I said , "What type of wine did you have?"

She said , "Chardonnay."

I said , "Was the front door open when you got home?"

She said , "It was closed but unlocked."

I said , "Does David have keys to your unit?"

She said , "Yes."

I said , "Then what happened?"

She said , "Can I have my phone?

I said , "Why?

She said , "To call Rob and tell him you're here."

I said , "No we can't go in. Who is Rob?

She said , "My boyfriend."

I said , "I thought Dave was your boyfriend."

She said, "Yeah they both are."

I said , "Where does Rob live?

She said , "Umm not sure, I rang mum and Rob but didn't think to call you guys."


I said , "Where is your phone?"

She said , "On the table."

I said , "What does it look like?"

She said , "It's red."

I said , "When did you leave your house?"

She said , "Yesterday."

I said , "What time?"

She said , "I dunno."

I said , "Was it in the morning or was it dark?"

She said , "I dunno."

I said , "Was it before lunch or dinner."
She said , "After lunch but before dinner."

15. I said , "When were you ment(sic) to see Dave?"


She said , "Tonight at 7pm."

I said , "Where were you going too(sic) met(sic)?"

She said , "He was coming here."

I said , "How long had you been home when you found Dave?"

She said , "About thirty or forty minutes."

16. I said , "What else did you do today?"


She said , "I wanted to go to the toilet and have a cold shower and I went in and found him. I ran out and rang mum and text Rob." There was silence and after a short period of time

She said , "I need to clean the kitchen."

I said , "Why?"

She said , "There is heaps of washing up, I need to wash up."

14 The accused was placed under arrest. On legal advice she declined to be interviewed.

The accused’s mental state

15 The accused has a long history of mental illness. At the time of Mr Vaughan’s murder she was being treated for paranoid schizophrenia. This included fortnightly injections of long acting anti psychotic drugs administered by a nurse, as well as daily medication. She had received the last injection on 24 December at her mother’s home. There was also evidence that on 25 December she had consumed alcohol and had taken illegal drugs.

16 The accused was examined by psychiatrists retained by both parties, Dr Westmore for the Crown and Dr Nielssen for the accused. They were both of the view that given the nature of her mental illness, that the consequence of that illness was that the accused did not know that what she was doing was wrong.

17 Neither Dr Westmore nor Dr Nielssen expressed the view that the consumption of alcohol or drugs on 25 December 2008 was of any relevance to the opinions which they had formed. Their opinions rested on a consideration of the accused’s extensive medical record and their examinations of her. The evidence of those who attended the accused’s home on 25 December did not suggest that she was much affected by any drugs or alcohol, but that an appreciation of what she had done to Mr Vaughan was absent.

18 Dr Nielssen noted in a report of 12 June 2009 that the accused’s medical record showed her first admission with psychotic symptoms in February 2002, when she made a partial response to treatment. There was a history of childhood trauma, sexual abuse at age 12 and near drowning at the hands of an uncle at age 15. She was diagnosed with a schizophrenic illness and in 2003 there was an involuntary admission for treatment. In 2006 a doctor’s report prepared in relation to an assault charge noted ongoing treatment since age 19, with over 20 admissions to hospital in 7 years, with poor response to treatment and substance abuse. There were accounts of auditory hallucination and delusional beliefs. There had been several hospital admissions after suicide attempts by overuse of medication and treatment for depression. The report noted that the accused ‘is always aggressive and intimidating’ and that ‘she should be seen exclusively by a forensic psychiatrist since her potential for harming somebody in the near future is very high’. In 2007 the accused presented with auditory hallucinations and was reported to have said ‘I want to mass murder... but I know it is wrong’.

19 Dr Nielssen’s diagnosis was a severe form of treatment resistant schizophrenia and substance abuse disorder. His opinion was that the result of the accused’s mental illness was ‘frightening delusional beliefs arising from auditory hallucinations’ and that she ‘was unable to explain the connection between her symptoms and her behaviours’. The text messages to which I have referred suggested to Dr Neilssen that the accused had killed Mr Vaughan in response to the delusional beliefs which arose from her symptoms and that she was 'hence deprived of the capacity to recognise that her actions were morally wrong. Moreover, the acute exacerbation of her severe chronic mental illness around the time of the offence is likely to have deprived her of the capacity to recognise that her actions were morally wrong.'

20 In a report of 29 June 2009, Dr Westmore also noted the accused’s history of substance and alcohol abuse and mental illness and the ongoing treatment which she had received. He referred to reports of hearing voices and delusional beliefs of a paranoid type. Dr Westmore’s opinion was that:

On the balance of probability this woman was suffering from an acute exacerbation of her chronic mental illness. On that basis, I believe she could raise a mental illness defence to the charge of murder. She was suffering from a disease of the mind (paranoid schizophrenia) which, again on the balance of probability, would have totally deprived her of her capacity to know that she ought not to do the act. It is most likely in my view if she committed the offence then, in the absence of any other history, she was acting towards the deceased in a delusional way or as a result of delusional beliefs.

21 There were two further reports from Dr Westmore, in the last of which he noted that there had been memory difficulties and that while it was possible that the accused had achieved partial or even complete recollection of what had occurred, it was possible that the ‘accused finds it too difficult and or traumatic to discuss’. He also observed that while fragile, the accused was fit to be tried and well enough overall for the trial to proceed. The accused’s acceptance of the consequence of her acts at the trial confirmed that there was a basis for that view.

Proof of the charge

22 The onus falls on the Crown to prove beyond reasonable doubt the elements of the offence of murder with which the accused has been charged. They are that:

1. David Vaughan died.

2. That his death was caused by the acts of the accused, Tamie Melehan, by multiple stabbings.

3. That at the time of committing those acts Tamie Melehan intended either to kill David Vaughan or at least intended to cause grievous bodily harm.

23 As I have said, the accused has the benefit of the presumption of innocence. The Crown must prove all elements of the offence. Given the way in which the trial finally proceeded, there was no issue concerning proof of any of the elements of the offence.

24 On the evidence I find that Mr Vaughan’s death was caused by the fatal stab wounds which he received while with the accused at the accused’s home on 25 December 2008 and that those wounds were inflicted by the accused. There were a number of knives found in the accused’s home, where she was found with Mr Vaughan, after she called for her mother’s help. The accused’s text messages and conversation with Mr Bowcott showed that even before contacting her mother to seek her help in preventing her from slitting Mr Vaughan’s throat, the accused had already contacted Mr Bowcott, finally seeking his help in disposing of Mr Vaughan’s body. By the time she contacted her mother, the accused had already committed the act which she told her mother she needed help to prevent. The evidence has led me to be satisfied that it is beyond reasonable doubt that the accused, by her acts in repeatedly stabbing Mr Vaughan caused his death while possessing the requisite intent, namely of killing him.

25 The other issue to be determined is whether the accused has available to her the defence of mental illness. In that respect it should be noted that the position of the Crown was that the evidence was such that the Court would conclude that the defence had been made out.

The defence of mental illness

26 The defence of mental illness arises to be considered in accordance with s 38 of the Mental Health (Forensic Provisions) Act. That section provides for a special verdict that an accused person is not guilty by reason of mental illness. It provides that if the evidence at the trial establishes that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done, then, if it appears that the person did the act, but was mentally ill at the time a special verdict that the accused person is not guilty by reason of mental illness must be returned. If a special verdict of not guilty by reason of mental illness is returned, the Court may remand the person in custody until the making of an order under section 39 of the Act in respect of the person.

27 The onus of proof of a defence of mental illness rests on the accused, on the balance of probabilities (see Mizzi v Regina [1960] HCA 77; (1960) 105 CLR 659). The term ‘mental illness’ is not defined in the Mental Health (Forensic Provisions) Act. The test which must be considered when a defence of mental illness is relied on, is discussed in Regina v M’Naghton (1843) 8 ER 718. Mentally ill in this context means suffering from a ‘defect of reason’ or ‘a disease of the mind’, so that the accused did not know the quality and nature of the physical acts which she was doing, or alternatively, if she did know, that she did not know that what she was doing was wrong. There is no suggestion in this case that the accused did not know the quality and nature of the physical acts which led to Mr Vaughan's death. The defence was pressed on the basis that owing to her disease of the mind, she did not know that what she was doing was wrong.

28 It is the accused who must establish that she was suffering from a mental illness. In this case there is no issue that the accused was suffering paranoid schizophrenia at the time of the offence. What the accused must further establish is that at the time that she stabbed Mr Vaughan, because of that mental illness, while she caused his death, she did not understand that what she was doing was wrong.

29 In Regina v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-90, Dixon J of the High Court explained that the accused must prove that the disease, disorder or disturbance of the mind from which she was suffering, whether arising from some infirmity, temporary or of long standing, was of such a character that she was not able to appreciate the wrongness of the particular acts she was doing at the particular time. His Honour explained at 189 - 90:

The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

30 In this case those questions must be answered having regard to the evidence as to the accused's outward conduct and the medical opinions which have been received.

31 I have outlined the opinions of the psychiatrists who examined the accused and who considered her medical history. Their opinions were consistent, namely that as a consequence of her mental illness, the accused was unable to understand that what she was doing was wrong and that the defence of mental illness is available to her. The experts' opinions, given the medical history on which it was based, were persuasive.

32 The evidence of the text messages which Mr Bowcott received; what the accused told him when she spoke to him on the phone shortly before 2 pm; what she told her mother shortly afterwards on the phone; what she said and was doing, when her mother arrived at her home; and how she behaved and what she said when spoken to by police officers and others at the scene, all support the conclusions which the psychiatrists reached. That evidence, too, suggested that the accused had a defect of reasoning resulting from the serious disease of the mind from which she suffers, with the result that she did not know that what she was doing to Mr Vaughan was wrong.

33 Section 37 of the Mental Health (Forensic Provisions) Act requires that consideration be given to the legal and practical consequences of a finding of mental illness, including the existence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act 2007 and its functions with respect to forensic patients.

34 The effect of an order made under s 38 is that provided for in s 39 of the Mental Health (Forensic Provisions) Act, which provides:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.

35 In this case the accused sought no order for her release.

36 The role and responsibilities of the Mental Health Review Tribunal were recently described by Hall J in Regina v Coleman [2010] NSWSC 177, a description which I respectfully adopt. His Honour observed:

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

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

71 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.

72 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.

73 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.

74 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.

75 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.

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

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

78 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.

79 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.

37 In this case, for the reasons I have explained, I am satisfied on the evidence, on the balance of probabilities, that the accused is not guilty of the offence with which she has been charged, on the ground of mental illness.

Orders

38 For the reasons I have explained, I find that at the time that the accused committed the acts which caused the death of Mr Vaughan, that she was mentally ill so as not to be responsible in law for her acts. I am accordingly required to return a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990.

39 Tamie Melehan, upon the charge that on 25 December 2008 at Gosford in the State of New South Wales you did murder David Vaughan, pursuant to the provisions of s 22(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness.

40 I order that Tamie Melehan 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.

41 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 and provide the Tribunal with copies of the exhibits in these proceedings.

42 Finally, I note that information concerning Mr Vaughan received from his family was put before the Court by the Crown, without objection. This material showed that Mr Vaughan had dealt bravely with the serious misfortune which life had brought him before his death. It also dealt with the impact which his death has had. This material has not gone without notice. I extend my deepest sympathy to Mr Vaughan’s family for the undoubted consequences of his tragic death.

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