R v Newbury

[2012] NSWSC 1361

Supreme Court

New South Wales

Medium Neutral Citation:

R v Newbury [2012] NSWSC 1361

Hearing dates:

7 November 2012 - 9 November 2012

Decision date:

12 November 2012

Jurisdiction:

Common Law - Criminal

Before:

Button J

Decision:

(1) On the count of murder, I return a special verdict of not guilty on the ground of mental illness.

(2) The accused is to be detained in Long Bay Prison Hospital or such other facility as the Mental Health Review Tribunal may determine, until released by due process of law.

(3) The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

(4) The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

Catchwords:

CRIMINAL LAW - particular offences - offences against the person - murder - accused unfit to be tried - special hearing by judge alone - criminal liability and capacity - consideration of Hawkins v The Queen - "three-step" approach - accused did physical act - accused not responsible on grounds of mental illness - verdict of not guilty on the ground of mental illness

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
McNaghten's Case (1843) 8 ER 718
R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490; (2005) 154 A Crim R 349
Ryan v The Queen [1968] HCA 2; (1968)121 CLR 205
The King v Porter [1933] HCA 1; (1933) 55 CLR 182

Category:

Principal judgment

Parties:

The Crown
Wayne Patrick Newbury

Representation:

Counsel:
M Barr (Crown)
I Todd (accused)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid (NSW)

File Number(s):

2010/257892

Judgment

Introduction

1. On 3 August 2010, Wayne Patrick Newbury (to whom I shall usually refer in these reasons as "the accused") was charged with an offence by police. The charge alleged that, on 3 August 2010, he murdered Ross Andrew Tekempe (to whom I shall usually refer in these reasons as "the deceased"). The offence was alleged to have occurred at a township near Wyong on the Central Coast of New South Wales.

1. After the matter had been committed to this Court, the issue of his fitness to stand trial was raised. That engaged various provisions of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). After a hearing to determine whether or not the accused was fit to stand trial, on 9 March 2012, Davies J determined, pursuant to s 11 of the Act, that the accused was not fit to do so.

1. On 28 May 2012, the Mental Health Review Tribunal determined, pursuant to s 16(1) of the Act, that the accused would not become fit to stand trial within 12 months.

1. On 20 July 2012, the Director of Public Prosecutions for New South Wales advised that, pursuant to s 19(1)(a) of the Act, the proceedings were to continue. Accordingly, the matter was set down for a special hearing before me. That hearing commenced on 7 November 2012. An indictment was presented containing a count of murder particularised in accordance with the details of the charge provided by me a moment ago.

Special hearing

1. A number of attributes of the special hearing may be briefly noted. In the absence of an election by either the Crown or the accused, the hearing was conducted before me alone and without a jury, pursuant to s 21A of the Act. In accordance with s 21(2) of the Act, the accused was represented by counsel and a solicitor. In accordance with s 21(1) of the Act, the conduct of the special hearing was as close as possible to that of a criminal trial before a judge alone.

1. The Crown called a number of witnesses who gave evidence in the witness box. They included civilians, police officers, ambulance officers and health workers. A number of statements were tendered by consent and pursuant to a waiver of the rule against hearsay that has been the subject of a separate judgment by me. Those statements included evidence from scientific experts and two reports from forensic psychiatrists. Whenever such a statement was tendered, either the Crown Prosecutor or I gave a very brief précis of its subject matter and effect, so that the proceedings could be understood by members of the public in Court. A number of audio recordings and DVDs were tendered and played in open Court.

1. There was no dispute between the parties about the facts established by the evidence and the expert opinions expressed by the two psychiatrists. At the end of the hearing, both the Crown and the accused through his counsel submitted that the appropriate verdict for me to return on the count of murder would be not guilty on the ground of mental illness, pursuant to s 21(3)(a) of the Act.

Events surrounding the death of the deceased

1. I shall discuss the evidence of the mental condition of the accused as at the date in question separately.

1. The evidence establishes the following.

1. For some time before 3 August 2010, the accused and the deceased had lived together in a freestanding home along with their three dogs. The deceased played the role of carer of the accused, and was paid for doing so by the elderly mother of the accused. They lived at number 9 in a suburban street that it is not necessary to name.

1. As at the date in question, the accused was aged 42 years, having been born in March 1968. The deceased was also a mature man.

1. The deceased and the accused were known to varying degrees by their neighbours. Mr Doubleday, who lived a little distance away, heard them arguing every month or so.

1. At about 1:30am on Sunday 1 August 2010, the accused telephoned 000. He stated that he was at number 25, which was an address a few doors up from his home, and that his brother had been killed, and his mother was being "held". In fact, that stated belief was a delusion, and both the brother and the mother of the accused were safe. Indeed, they were not at those premises or even in the street.

1. Police attended in answer to the call but were unable to locate the accused. They checked at number 25 but everything was quiet there. They also checked at the home of the accused, and spoke to the deceased. He expressed the belief that the accused was still in his bed, which turned out not to be the case.

1. At about 3 o'clock on the same morning, Mr Grant, a neighbour who lived in the same street, noted a man was pacing back and forth in an alleyway that was adjacent to his home. That continued for some time. Eventually the police arrived, but by that stage the man had disappeared. Although Mr Grant did not know the name of the man, he recognised him as being the accused.

1. Some hours later, at about 9:00am on the same day, the accused was located lying in a gutter outside a shop. He was trying to get up but was being encouraged by onlookers not to do so. An ambulance officer attended and rendered him assistance. At the time, the accused was dishevelled to the point of being filthy. He also had in his possession an iron bar.

1. The accused was taken to Wyong Hospital. He was treated there by Dr Jenner, but discharged on the same day. His mother and brother took him to her home.

1. On the morning of Monday 2 August 2010, Mr Grant noted that one of the tyres on his motor vehicle had been deflated. The accused happened to be walking past, and said something to the effect that the car looked like a car that belonged to his mother.

1. At about 5:30am on the morning of Tuesday 3 August 2010, another neighbour, Ms Johnston, heard the voices of the accused and the deceased from outside their home. Both voices were raised, and the deceased was calling out for help.

1. Very close to that time, the deceased telephoned 000 from his home. A recording of that call was admitted into evidence and played in open Court. It was obvious that the deceased was in great distress. He stated that he had been stabbed and required help urgently. Despite his distress, he was able to give his home address correctly. He also repeatedly named the accused as the person who had stabbed him.

1. Mr and Mrs Todkill lived a few doors from the home of the accused and the deceased at number 25. At about 5:50am, Mrs Todkill woke her husband as she had heard the sound of a person outside the home calling out for "Mum". Mr Todkill thought that the person seemed to be whispering the word "Mum", and also trying to open the windows of the house quietly. Mr Todkill also heard the person say "I will get my revenge, I will, I will". Mr Todkill called 000 twice.

1. At 5:50am, Ms McCarthy, who lived some houses further north on the same street, saw a man standing at the gutter outside her house, very close to a drain. The appearance of the man was, very broadly, consistent with that of the accused.

1. Ambulance and police officers attended at the street in answer to the multiple calls to 000. The deceased was found lying on the porch of his home. Tragically, by the time they arrived, the deceased had lost his life.

1. The accused was arrested outside the home of the Todkill family.

1. The post-mortem examination revealed that the deceased had suffered multiple stab wounds. Some of them were defensive wounds to the hands, but there were also a number to his body and arms. The fatal wound was to the left side of his chest and had a depth of between 11 and 15 centimetres. It penetrated his pulmonary artery and his heart, and was the direct cause of death.

1. The home of the deceased and the accused was examined by a crime scene officer. There was no sign of forced entry. Blood was located both inside and outside the home. It was not possible to interpret the bloodstain evidence in order to come to a firm opinion about the location or locations at which the deceased had been stabbed.

1. The clothes that the accused was wearing when he was arrested were examined. They were found to have blood on them. Defence counsel submitted that the DNA evidence establishes that that was the blood of the deceased.

1. On 4 August 2010, a knife was found in the drain near the home of Ms McCarthy to which I have already referred. That knife was identical to a knife found at the home of the accused and the deceased. It was also found to have blood on it. Again, defence counsel submitted that the DNA evidence establishes that the blood on the knife emanated from the deceased.

1. On arrest, the accused was conveyed to a police station. Various forensic procedures were undertaken. At one stage, he said to a police officer, "you won't find the weapon, you won't know where to find it" and "there won't be any fingerprints on it, none". However, he was not interviewed, in light of his mental state, a topic to which I shall now turn.

Mental condition of the accused

1. The evidence establishes the following.

1. The accused has suffered from very longstanding mental problems. Evidence for that proposition comes from a plethora of sources. A brief summary of his medical history follows.

1. In February 1982, when aged 14 years, the accused was diagnosed with epilepsy and dyspraxia (an inability to make skilled movements accurately). He was also found to have dysfunction regarding memory of verbal material, word retrieval, expression by way of speech and writing, conceptual and abstract levels of language, and motor coordination.

1. In April 1986, when aged 18 years, the accused was admitted to Gosford Hospital where he presented with acute paranoid psychosis. At that stage it was noted that "query Paranoid Schizophrenia, query Drug Induced Psychosis" was diagnosed. The accused was, however, discharged two days later.

1. One day after his discharge from Gosford Hospital, the accused was admitted to Macquarie Hospital until the beginning of May 1986. At Macquarie Hospital, the accused was diagnosed with "Schizophreniform Disorder with cannabis abuse". Some time afterwards he was returned to Gosford Hospital, where the accused was diagnosed with "Acute Paranoid Schizophrenia".

1. In May 1986, after undergoing an intelligence quotient ("IQ") test, the accused was diagnosed with "borderline intellectual functioning".

1. In September 2002, the accused was examined by Dr Corrigan at Wyong Community Health Centre and there diagnosed with "Schizophrenia" and "Substance Dependence".

1. In November 2002, a provisional diagnosis of chronic schizophrenia, poly-substance abuse, personality problems, and borderline or dull intelligence was given by Professor Greenberg.

1. For about two weeks before 3 August 2010, according to what the deceased said to the police and others, the accused had not been taking his medication. That was consistent with the observations made of the accused by his brother.

1. As already noted, when the accused telephoned 000 early in the morning of Sunday 1 August 2010, he expressed a belief that was not founded in reality. When he saw Dr Jenner at Wyong Hospital later that day, the accused spoke of "being chased by the Devil".

1. When the brother of the accused saw him on the same day, the accused spoke of having had a conversation with his father, who had in fact died many years earlier. He also referred to speaking to God.

1. When ambulance officers attended at the street on the morning of 3 August 2010, they briefly spoke to the accused outside number 25. He repeated the delusion about his mother at that stage.

1. After arrest, the accused was generally compliant with police. In accordance with his usual presentation, he said a number of things that are unintelligible. However, it is agreed between the parties, and I discerned for myself from the DVD, that whilst the forensic procedures were being conducted, the accused informed the police that a helicopter had flown above him, and shot bullets through his brain. That was a gross delusion.

1. On 22 December 2010, Professor Greenberg, who had been retained by the Crown, saw the accused. He had seen him years before, as I noted a moment ago. Professor Greenberg is unquestionably a very well qualified and highly experienced forensic psychiatrist. In a report of 11 January 2011, Professor Greenberg expressed the opinion that the accused was unfit to stand trial.

1. In a later report of 10 November 2011, Professor Greenberg expressed the opinion that the accused had available to him the defence of mental illness. He diagnosed the accused as suffering from chronic schizophrenia, poly-substance abuse, expressive and receptive language disorder, personality problems (antisocial traits), borderline intelligence, and epileptic seizures (in remission).

1. Dr Neilssen, who, it is accepted between the parties, is a forensic psychiatrist of similar eminence, saw the accused on 4 August 2011, having been retained by the defence. He expressed the same opinion, both with regard to the unfitness of the accused, and also as to the availability of the defence of mental illness. He diagnosed the accused with chronic treatment resistant schizophrenic illness and substance abuse disorder.

1. Throughout the special hearing, and whilst sitting in the dock, the accused made a number of unintelligible remarks. Some of them were addressed to witnesses as they were entering and leaving the Court.

Issues for determination

1. There are two issues raised by the evidence that call for determination by me. The first is whether the count of murder has been made out against the accused. The second is whether, if so, the defence of mental illness has been made out by the accused.

1. In determining those issues, I should make clear the relevant legal principles, my findings of fact and the bases for them, and how the application of those legal principles to those facts leads to my verdict.

Legal principles

1. I am bound by what the High Court of Australia said in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 at 517 about how I should approach resolution of the two issues identified by me a moment ago. I have also considered the decision of the Court of Criminal Appeal of this State in R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490; (2005) 154 A Crim R 349.

1. I asked the Crown Prosecutor and defence counsel to provide me with submissions about the interpretation of that case. They submitted that the correct approach is to deal with the issues by way of three steps.

1. First, determine whether the physical elements of the offence of murder have been made out by the Crown against the accused to the requisite degree. In that process, consider whether the Crown has established that any such acts were voluntary, and exclude any evidence of the mental state of the accused from that consideration.

1. If those matters have been made out, proceed to determine secondly whether the elements of the defence of mental illness have been made out by the accused to the requisite degree. If so, the issues to be determined by me are complete.

1. If not, then proceed thirdly to consider whether the specific mental elements of the offence of murder have been made out to the requisite degree. In doing so, I should take into account all of the evidence about the mental state of the accused.

1. I accept the joint submission of the parties about the applicable law. At one stage I considered whether I should make ancillary findings of fact, as against the possibility that our interpretation of the relevant principles is erroneous. On reflection, I do not propose to do so.

Determination

1. The first question that I must determine is whether the Crown has proven the physical elements of murder. In other words, I need to determine whether the accused voluntarily did an act that caused the death of the deceased. I need to be satisfied of each of those elements beyond reasonable doubt. As I have said, I determine each of them, including voluntariness, without regard to the mental condition of the accused at the time.

1. I am satisfied beyond reasonable doubt that it was the accused who stabbed the deceased repeatedly at their home, and inflicted the wound that directly caused his death. I come to that conclusion based upon the following aspects of the evidence. I express them in ascending order of importance.

1. First, there had been some arguments between the deceased and the accused in the preceding months.

1. Secondly, the accused was, two days before in the early hours of the morning, in an agitated state in the alleyway near his home. Later that morning, he was found to have an iron bar in his possession. Those events shed some, albeit limited, light on the events of the morning in question.

1. Thirdly, a man very broadly fitting the description of the accused was seen in the vicinity of the drain in which the knife was located that had the blood of the deceased on it. I find that that man was the accused and that that knife was used to stab the deceased.

1. Fourthly, the raised voices of the accused and the deceased were heard outside their home at, or very shortly after, the time of the stabbing.

1. Fifthly, there was no sign of forced entry at the home where the accused and the deceased lived together.

1. Sixthly, the accused was arrested a few doors from the scene of the stabbing very soon afterwards.

1. Seventhly, at the time of his arrest, the accused was wearing a shirt that had the blood of the deceased on it.

1. Eighthly and finally, the deceased repeatedly stated in the call to 000 that he had been stabbed by the accused. As I have indicated, although in great distress, the deceased at that time was quite coherent.

1. In all of the circumstances, the irresistible inference is that the accused was the person who inflicted the fatal wound upon the deceased early in the morning of 3 August 2010. To the extent that the Crown case relies upon circumstantial evidence, I reject the proposition that there is a reasonable hypothesis consistent with innocence.

1. Turning to the question of the voluntariness of the actions of the accused at the time when he stabbed the deceased, I am satisfied beyond reasonable doubt that the actions of the accused were willed movements of his muscles: see Ryan v The Queen [1968] HCA 2; (1968) 121 CLR 205.

1. In short, in accordance with Hawkins v The Queen, I have determined the first issue adversely to the accused. I turn to consider the second issue.

1. In order to make out the defence of mental illness, the accused would need to satisfy me on the balance of probabilities that:

"at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong"

McNaghten's Case (1843) 8 ER 718 at 722.

1. In The King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J (as his Honour then was) said to the jury in the well-known summing-up:

"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."

1. I have no doubt that the accused was suffering from a serious, chronic, mental illness at the time of the stabbing of the deceased. The things said by the accused two days before and on the day of the stabbing establish that he was very much divorced from reality. But there are a number of aspects of the evidence that may argue against the establishment of the defence, and to which I have given consideration in determining whether the accused has discharged the onus on the balance of probabilities. Again, I shall list them in ascending order of importance.

1. First, on the DVD of his arrest and subsequent interactions with police, it is apparent that the accused was not completely incoherent. For example, he was able to request a cup of coffee repeatedly, including that it be served to him at breakfast. When he was standing in front of a bench and in discomfort, he sought to sit down. When he was asked not to do so, he complied. When his body was being examined for injuries, he was asked about some of them, and was able to give a history of them.

1. Secondly, the possession of the iron bar two days before could perhaps be evidence of a plan to injure.

1. Thirdly, the words "I will get my revenge, I will, I will" said very shortly after the stabbing may be consistent with a sense of being aggrieved and a determination to harm.

1. Fourthly, seeking his mother in a whisper and quietly trying to open the windows at the home of the Todkills at the same time may be consistent with a realisation of what he had done and a desire to seek help in getting away with it.

1. Fifthly, the hiding of the knife in the drain by the accused immediately after the stabbing may suggest that he appreciated what he had done, appreciated that it was wrong, and appreciated that, if detected, he would be punished.

1. Sixthly and finally, boasting to police that the weapon would not be found and, if it were, fingerprints would not implicate the accused, could be interpreted in the same way.

1. I have taken all of those aspects of the evidence into account. On the other hand, it is clear that the accused has been profoundly disturbed for years. At the time of the stabbing he was not taking his medication. Two days before he held a thoroughly delusional belief and was moved to telephone the police about it. On the same day he spoke to a doctor of the Devil. He also believed that he was capable of talking to his dead father and to God.

1. On the day of the offence, he did not flee the scene, but was arrested a few doors down. That was the case even though he was wearing a shirt with the blood of the deceased on it. He continued to hold the delusional belief that his mother was inside the home of the Todkills, when in fact she lived some distance away in a house that was not similar in appearance. His desire to seek revenge immediately after the stabbing is hardly rational, considering that he had already inflicted fatal violence on the deceased. As defence counsel submitted, it could be that the knife was hidden for some irrational purpose that had nothing to do with concealing the stabbing. Even if it was hidden to remove evidence of what the accused had done, I consider that it is quite possible that the accused hid the knife because he appreciated that he may be punished, as opposed to understanding fully that what he had done was wrong. I note that Professor Greenberg approached the question in that way.

1. It is true that the accused sought a cup of coffee after his arrest and understood police commands. But that hardly demonstrates that the accused had anything beyond a superficial understanding of the world around him. As I have said, at that stage he expressed a grossly delusional belief to the police.

1. Finally, the boasting to the police is hardly consistent with a person who fully understood the gravity of what he had done. After all, if the accused had done so he would have said nothing whatsoever about the knife.

1. In short, consideration of the evidence that points against the establishment of the defence shows that it is by no means determinative.

1. Two eminent forensic psychiatrists, one of whom had the benefit of having seen the accused many years before, have expressed a unanimous opinion about the availability of the defence. Although I am not bound by their expert opinion, I consider that I would require very good reasons for rejecting it.

1. Finally, in a situation in which the accused bears the onus of persuading me of a proposition on the balance of probabilities, the Crown has not sought to persuade me otherwise. Again, that is not determinative, but it is an aspect of the hearing that I take into account.

1. I am satisfied on the balance of probabilities that, at the time of the stabbing, the accused was labouring under a defect of reason. He was in many respects divorced from reality. I am also satisfied that that condition arose from a disease of the mind. He was suffering from the mental illness schizophrenia, and had done so for many years.

1. I am not satisfied on the balance of probabilities that the accused did not know the nature and quality of the act of penetrating the body of another human being with a sharp knife. Although I suspect that that may be the case, the issue is finely balanced in my mind, and the accused has therefore not discharged the onus with regard to it.

1. However, I am satisfied on the balance of probabilities that the accused did not know that what he was doing was wrong. He may have appreciated that what he was doing was against the law and could expose him to punishment. But I am satisfied to the requisite degree that the accused could not and did not reason about the question of the rightfulness or wrongfulness of his actions with a moderate degree of sense and composure. I am satisfied on the balance of probabilities that the accused did not appreciate that what he was doing was wrong according to the everyday standards of reasonable people. I consider that his thinking was so disordered at the time that he did not appreciate that repeatedly stabbing the deceased was a morally wrong thing to do.

1. In short, the Crown has established beyond reasonable doubt the requisite elements of the offence of murder. The accused has established on the balance of probabilities the requisite elements of the defence of mental illness. It follows that I propose to return the verdict for which both parties have contended.

Explanation

1. Because there is no jury, I am not required to inform them of the matters contained in s 37 of the Act. However, I consider that I should briefly explain the effect of the verdict I propose to deliver shortly. Both counsel agree with that course. I propose to provide that explanation so that the public, including the family of the deceased and the family of the accused, and to the extent possible, the accused, may understand the way in which the criminal justice system responds to this tragedy.

1. A verdict of not guilty on the grounds of mental illness will be returned on the basis that the accused was not criminally responsible for what he has done. However, that verdict does not mean that the accused did not kill the deceased. I have found beyond reasonable doubt that he did so. The verdict does mean that, because of the severity of the mental illness from which the accused was suffering at the time of the stabbing, he is not to be held criminally responsible for the act that he committed. It follows that, after the verdict, I shall not impose any sentence.

1. But that verdict does not mean that the accused will be free to go, which would be the situation if he were simply found not guilty. To be clear about it, the effect of the verdict of not guilty on the ground of mental illness will be that he will remain in detention and be referred to the Mental Health Review Tribunal. That Tribunal will not release him unless and until it is satisfied that his release will not seriously endanger the safety of the accused, or any member of the public.

Orders

(1)   On the count of murder, I return a special verdict of not guilty on the ground of mental illness.

(2)   The accused is to be detained in Long Bay Prison Hospital or such other facility as the Mental Health Review Tribunal may determine, until released by due process of law.

(3)   The Registrar is to notify the Minister for Health, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

(4)   The Registrar is to notify the Mental Health Review Tribunal, as soon as reasonably practicable, of the terms of this judgment and the orders made by this Court.

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Decision last updated: 13 November 2012