R v Nixon

[1999] NSWSC 794

CITATION:	R v NIXON [1999] NSWSC 794
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70064/98
HEARING DATE(S):	29 July 1999
JUDGMENT DATE:	4 August 1999
PARTIES :	REGINA v Luke James NIXON
JUDGMENT OF:	Barr J at 1

COUNSEL :	JP Kiely (Crown) M King (Accused)
SOLICITORS:	K Kalda (Crown) C McElroy (Accused)
CATCHWORDS:
DECISION:	Not guilty by reason of mental illness

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GRAHAM BARR J

Wednesday, 4 August 1999

70064/98 - REGINA v Luke James NIXON

JUDGMENT
1   HIS HONOUR: The accused is charged with murdering his mother Karen Louise Nixon. He has pleaded not guilty.

2 Notwithstanding his mental state, to which I shall refer later in this judgment, the accused signed a document on 28 July 1999 under the provisions of s 32 Criminal Procedure Act electing for trial by judge alone. I am satisfied that he received appropriate advice before making his election. I am satisfied that the accused had the mental capacity so to elect.

3   This trial arises out of a series of tragic events which must have distressed the family and friends of the deceased. In order to spare them unnecessary anguish I shall summarise only those facts that are necessary for the Court to reach its verdict. The Court extends it sympathy to the deceased’s family.

4   The deceased’s brother, Mr Paul Barber, drove her home to her flat at Moorebank on Monday 7 October 1996. They had a cup of tea together and when Mr Barber left the premises at about 5.30pm he accidentally left behind a packet of cigarettes.

5   At about 6.45pm a passing motorist noticed a man in the driveway of the deceased’s flat, walking towards it. His appearance was consistent with the appearance of the accused.

6   At about 8.30pm neighbours heard a woman screaming, shouting that she was being raped.

7   At about midnight a taxi driver picked up the accused near the Henry Lawson Drive exit from the M5 tollway at Milperra, a place about a forty-minute walk from the deceased’s flat.

8   The driver was concerned about the mental capacity of the accused because of the way he spoke and because he was wearing only a shirt. He said that he had lost his trousers in the river.

9   The driver took him to an address in Warrawong, a suburb of Wollongong, where two friends of the accused lived. He asked them to lend him $120 for the fare. They noticed that he was dishevelled and shivering and seemed to be under the influence of drugs or alcohol. They asked him whether his mother might lend him the money and he told them that he had not seen her for a long time and did not know where she was living.

10   The deceased was found in her flat at about 8.15am on Tuesday 8 October. She had been stabbed three times. One of the wounds penetrated the heart and caused her death. She was wearing the clothes she had been wearing when Mr Barber brought her home.

11   Investigating police officers established that a fingerprint of the accused was on a coffee mug which Mr Barber had used and left in the lounge. His packet of cigarettes was there. Some cigarettes had been taken from it and the packet bore the accused’s right thumbprint.

12   There was no evidence that any struggle had taken place inside the premises and no property was stolen. A knife, which was identified as having come from the kitchen drawer, was found in the deceased’s hands. A jumper, which had been given to the accused by the deceased in 1995, was found on a chair in the lounge. It bore blood consistent with being from the deceased, the DNA pattern of which occurs at the rate of one in 750 in the community.

13   Police attempted to interview the accused on 10 October 1996 but he was vague and irrational when answering questions. Police took him to the Shellharbour Hospital where he was admitted to the psychiatric ward.

14   The accused has a history of mental illness which came on after he suffered a serious head injury in a motor vehicle accident in September 1988, when he was twelve years old. He suffered left-sided weakness and impaired co-ordination. His concentration and short-term memory were affected. School reports noted a change in personality and a decline in intellectual ability. He became more aggressive, impatient and intolerant. He was vague and at times disoriented. He suffered memory loss. During the year after the accident he suffered post traumatic epilepsy with several motor seizures as well as probably complex partial seizures. He received treatment with anticonvulsant medication.

15   He became despondent about the effects of his impairment on his ability to understand school work and had to be referred to the school counsellor at his high school.

16   He was awarded a substantial sum of money in damages to compensate him for his injuries and disabilities. He began to use illegal drugs. He spent a substantial portion of his award on overseas travel and drugs.

17   On 17 April 1996 police were called to the house in which the accused’s mother was then living. The accused was present, seemed to be under the influence of alcohol and was behaving irrationally. He caused a substantial amount of damage to the house and its contents. He admitted to drinking and using amphetamines. He was kept for a week in a psychiatric hospital as an involuntary patient.

18   During the months before his mother’s death the accused visited Bangkok and Amsterdam, where he used cannabis every day and took other stimulants and hallucinogens. He returned to Australia about eight weeks before his mother’s death.

19   Understandably, his mother, a woman of strong religious conviction, disapproved of the kind of life he was leading.

20   When he was taken to Shellharbour Hospital on 10 October 1996 he was diagnosed as suffering from a psychotic illness on the basis of the presence of religiose and persecutory delusional beliefs, auditory hallucinations and disorder of thought form. He was detained involuntarily for three months. According to his discharge summary, the provisional prognosis was drug induced psychosis.

21   In November 1997 he was admitted to yet another psychiatric hospital as an involuntary patient. His diagnosis was schizophrenia and he was treated with high doses of anti-psychotic medicine in combination with anticonvulsant medicine.

22   He responded to that treatment and on 31 May 1998 told his uncle that he had killed his mother. His uncle advised him to speak to the police and took him to the police station. A formal interview took place, during which these questions and answers were made -

Q69 Yeah?
A And after all, after all I though, well it wasn’t worth her staying around anyway, so I killed her.

Q70 How’d you kill her?
A With a knife, I got it from the kitchen.
…
Q75 Yeah? And then what happened after, after you, after you, how many, do you know how many times you stabbed her?
A Three.
…
Q90 What did you do with the knife?
A Left it in mum’s hands.
Q91 You left it in - - -
A Because I wanted the police to think she killed herself.
…
Q134 Mm. Did you have a cup of coffee with her?
A Mm.
Q135 Who made the coffee, you or your mum?
A Mum.
…
Q137 Did you have a, have a cigarette?
A I had a cigarette twice.
Q138 Where’d they, whose cigarettes - - -
A One in the lounge room - - -
Q138 - - - who cigarette, whose cigarettes were they?
A Paul’s.
Q139 How did you know they were Paul’s?
A He told me.

Q140 Pardon?
A He told me.

Q141 He told you? No, who, how’d you know they were Paul’s?
A He, he told me.

Q142 Did you know they were Paul’s before?
A He told me.

…

Q185 O.K. When, when you stabbed your mum, where was she?
A On the back couch.

Q186 On the back couch. What part, what - - -
A It was, it was facing the TV, so it’s where her back ……….

Q187 All right. She was watching the TV was she.
A Yeah.

…

Q190 Did you get any garden gloves?
A Yeah. I wore them myself.

…

Q203 All right. So you got the knife out of the kitchen drawer?
A Yeah.

23   The accused was arrested and kept in the psychiatric wing of the prison hospital. He was seen by a number of psychiatrists. The first was Dr Jolly, who first saw him in January 1997. The accused told Dr Jolly that his mother had been stabbed in the house but that he did not even remember that day, he was afraid to think about it.

24   Dr Jolly saw the accused again on 19 November 1998 and during the interview the accused said -

Something inside me decided me to kill mum … I don’t know why.

25   Dr Westmore saw the accused on 23 April 1999. The accused told him that when he returned from overseas he went to see his mother and she asked him about where he had been. Then he said -

She said she had a tooth removed and I just killed her.

26   Asked whether he could give further details he replied -

Not really, I had voices in my head telling me I was going to save the world if I killed her, by killing mum I would be saving the world and that’s why I killed her.

27   The accused was seen by Dr Nielssen on behalf of the Crown on 13 July 1999. When Dr Nielssen asked him what actually happened he said -

I think I used a knife. I put gloves on and stabbed my mother.

28   He also told Dr Nielssen that he had taken off the jumper his mother had given him because it felt dirty. He said that he had left his mother’s home, crossed the river and gone through bushland and a golf course before hailing a taxi to take him to Wollongong.

29   The evidence is of three kinds, namely the circumstantial evidence of what happened soon before and after the deceased was killed, the account the accused gave to the police when formally interviewed and admissions he has recently made to interviewing psychiatrists.

30   The accused’s finger and thumbprints on the coffee cup and cigarette packet show that he was in the deceased’s flat after Mr Barber left and before the body of the deceased was found. The presence of his jumper shows that he was there when and after the deceased was stabbed. The lack of a struggle, damage and theft speaks against an attack by a stranger. Even allowing for the accused’s mental state at the time, his taking a taxi to Wollongong when he must have known that he had no money to pay for it shows that he had an important reason to get away from the vicinity. I am satisfied that he knew where his mother lived, whatever he told his friends in Warrawong, and that if he had needed shelter he could have gone to her flat. The reason why he did not was because he knew what he had done.

31   I am satisfied that he lied when he told his friends that he did not know where his mother lived. His presence at the flat shows that he knew what he said was not true. It was a lie about a matter material to the case and there appears to be no reason for the lie other than his consciousness of guilt.

32   In my opinion this evidence proves beyond reasonable doubt that the accused stabbed the deceased. The only inference available from the nature of the weapon and the wounds is an intent at least to do really serious bodily injury.

33   Ordinarily, admissions of the kind that I have extracted from the formal interview between the accused and the police would have been enough by themselves to prove his guilt beyond reasonable doubt. Those admissions need to be treated with caution, however, because the accused still had a serious mental illness at the time, even though he had responded to treatment.

34   Much of what the accused told the police was incomprehensible and some clear statements of fact were untrue. He said that a friend of his called Ericson was present. I find that to be untrue. He said that he had raped his mother. In fact the deceased was not sexually interfered with at all, notwithstanding her cries which the neighbours heard.

35   Dr Jolly thinks that the accused attended the police station voluntarily, wanting and needing to get something off his mind. In his report of 28 April 1999 Dr Westmore implicitly accepts as factual at least the central facts of the killing admitted by the accused.

36   In his report of 22 July 1999 Dr Nielssen states that he does not believe that the accused has made a false confession.

37   In these circumstances, although I would not regard the evidence of confessions made to the police as independently proving beyond reasonable doubt that the accused intentionally killed the deceased, I think that it strengthens the circumstantial case.

38   The final body of evidence is of things the accused told the interviewing psychiatrists. The Evidence Act provides that statements reported in such a way become evidence of the facts. Counsel did not submit that the evidence should be treated on any other basis. I think that this evidence is likely to be far more reliable than that coming out of the police interview, because the accused was on each occasion speaking to a psychiatrist who knew his history of injury, illness, symptoms and treatment and requested and received explanations as a critical expert. Each of the psychiatrists appears to accept that what the accused said, at least about the central facts of his killing his mother, may be taken at face value.

39   I have set out earlier in this judgment the more important parts of what the accused said. They are independently capable of proving beyond reasonable doubt that the accused stabbed his mother and that in doing so he intended to kill her.

40   I conclude that the accused stabbed the deceased to death with the knife, intending as he did so to kill her.

41   The whole of the psychiatric evidence raises the question whether the accused ought to be held criminally responsible for his acts. If it appears that he was mentally ill so as not to be responsible in law for his actions the Court may return a special verdict that he is not guilty by reason of mental illness.

42   In fact all three psychiatrists are of the opinion that the defence is available to the accused. The Crown has very properly submitted that the Court ought to return the special verdict.

43   Dr Westmore concludes that the accused suffers and suffered a psychotic disorder of some severity. He has auditory hallucinations, bizarre thought processes and a history of delusional beliefs. He has a history of ideas of reference and a thought content of a predominantly paranoid nature. His condition is of several years’ standing, although its relationship to the head injury is uncertain. Dr Westmore makes a differential diagnosis of organic brain disorder characterised by psychotic symptoms or drug induced state.

44   Dr Westmore is of the opinion that at the time of the death of the deceased the accused was suffering from a psychotic condition, most probably a paranoid schizophrenic illness, which may have been aggravated by substance abuse. The illness deprived him of a total sense of the capacity to understand that he ought not to do the act that he did and that the act was wrong.

45   Commenting on Dr Westmore’s report, Dr Jolly agreed with the findings and concluded that the accused had the defence of mental illness available.

46   Dr Nielssen had the accused under his care for nearly a year and it was on his initiative that the accused became a forensic patient pending trial, so enabling him to receive treatment. Dr Nielssen expresses the opinion that the accused was acutely ill when he stabbed his mother and has the defence of mental illness open to him. He had a defect of reason that his mother was involved in some form of spiritual attack that endangered him, and that killing her would somehow benefit the world. The defect of reason arose from a disease of the mind, which was a severe psychotic illness. Dr Nielssen concluded by stating that the accused was almost certainly aware of the nature and quality of his acts, but that he was not aware that his actions were wrong in a moral sense.

47   The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act. The Tribunal will review the accused’s case and make recommendations to the responsible Minister at prescribed intervals about the detention, care and treatment of the accused. In making any such recommendation, the Tribunal will have regard to the safety of members of the public as well as to the continuing health and needs of the accused himself.

48   I find the accused not guilty by reason of mental illness. I order that he be detained in a hospital until released by due process of law.

49   The exhibits may be returned.

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