R v SE - [2009] NSWSC 785

No judgment structure available for this case.

CITATION: R v SE [2009] NSWSC 785
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 03/08/2009, 04/08/2009, 05/08/2009

JUDGMENT DATE :
12 August 2009

JUDGMENT OF: Hoeben J

DECISION: I find that the accused is not guilty by reason of mental illness. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990 I order that SE, formerly referred to in this judgment as the accused, be detained at the Frank Baxter Juvenile Justice Centre.
I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of this order (s 39(3) Mental Health (Forensic Provisions) Act 1990).

CATCHWORDS: CRIMINAL LAW - indictment charging murder and attempted murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - verdict in accordance with psychiatric evidence.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

CATEGORY: Principal judgment

CASES CITED: R v McNaughten [1843] 8 E. R. 718
The King v Porter (1933) 55 CLR 182 at 184

PARTIES: Regina - Crown
SE - Accused

FILE NUMBER(S): SC 2008/15378

COUNSEL: Mr PM Miller - Crown
Mr A Haesler SC/Mr M Polden - Accused

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Crown
S O'Connor, Legal Aid Commission - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday 12 August 2009

2008/16863001 – REGINA v S E
JUDGMENT

1 HIS HONOUR:

Nature of Proceedings

Criminal Procedure Act

2 Upon arraignment the accused pleaded not guilty to both charges.

3 The charges arise from an attack by the accused on his parents on the morning of 25 March 2008. The accused was aged 16 years and 9 months at the time. The deceased JE was the accused’s father and LE, the victim of the wound with intent to murder charge, was the accused’s mother. The accused used a 35 cm kitchen knife to inflict the injuries.

4 There was no dispute about the facts. By consent statements, photographs and documents prepared and written by the accused were placed before me.

5 The basis for the accused’s plea of not guilty is mental illness under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW) or as an alternative, substantial impairment by abnormality of the mind under s 23A of the Crimes Act 1900 (NSW). Accordingly the real issue litigated has been the mental condition of the accused at the time of the attacks.

6 Because of the agreement as to the facts, the trial lasted only three days. The oral evidence comprised that of LE, police officers that had attended the premises and two psychiatrists, Dr Allnutt called on behalf of the Crown, and Dr Neilssen called on behalf of the accused.

Factual Background

7 I find that the following facts have been established beyond a reasonable doubt.

8 The accused was born on 8 June 1991. He was the son of JE and LE. He was the only child of the marriage. JE had two other children from an earlier marriage. The family lived in a two-storey house in Baulkham Hills. At the time of these incidents, the accused was attending Oak Hill Catholic College in Year 11.

9 On normal weekdays the family routine was that LE would rise at 6am, shower and get dressed before waking the accused for school. The bedrooms were located in the upper storey of the house. She would then go downstairs and make things ready for the day including getting breakfast for JE and the accused. At 6.30am she would make sure that the accused was up and ready for school. At about 7.15am she would drive the accused to his bus stop where he would catch a bus to school. LE would continue to her place of work.

10 So far as his parents were concerned, the accused appeared to be performing well at high school. He had done well academically in Years 7 and 8, but in Year 9 his grades dropped to an average of B’s and C’s. In Year 10 his performance improved and he did well in the School Certificate examinations.

11 Statements by his classmates make it clear that he was something of a loner and had no close friends, either male or female. Some of them described him as being “different” and “weird”. From about Year 9 the accused changed his appearance by growing his hair longer and parting it in the middle. He often used to talk about death, killing and violence. In Year 9 the accused started calling himself “Nine (9)”. He had written this on his knuckles and on his school bag and would on occasions talk about himself in the third person referring to himself as “Nine (9)”. This number was apparently associated with the concepts of finality and judgment.

12 During Years 8 and 9 the accused underwent some bullying at school. That bullying did not take the form of physical abuse but was restricted to name-calling. The name-calling was directed at the accused’s size (he is of small build), his hairstyle and the fact that he called himself “Nine (9)”. There was a rumour amongst the students during Year 10 that the accused had prepared a “Kill List”. This list was based on the movie “Kill Bill” where the lead character had a “Kill List” for people who had treated her badly and whom she wished to punish. The accused was teased by other students about his “Kill List”.

13 The accused was very interested in heavy metal music. His favourite band was “Slipknot”. The lyrics of this group focus on death and hopelessness. This disturbed his parents, particularly his mother, who found the lyrics very depressing and dark. Similar observations were made by his fellow students. They said that not only did he speak frequently about death and violence but that he enjoyed playing violent computer games which involved different ways of killing people. His fellow students said that he loved movies with death and violence in them.

14 To adults the accused appeared quiet and withdrawn. This was the observation of family members when he attended family gatherings with his parents. He did not display any aggression on these occasions and often played with his younger relatives.

15 Neither of his parents disciplined the accused by physically punishing him. If the accused did something wrong, it was dealt with by a loss of privilege or through negotiation.

16 LE recalled an occasion in late 2007 when the accused had been given an assignment from school for Religious Studies. The assignment related to stem cell research and the moral issues attached to this type of research. When LE was discussing the assignment with the accused, she disclosed to him that she had previously had a miscarriage. She and the accused talked about the miscarriage at length. At the conclusion of the discussion LE thought that the accused understood what had happened and had no difficulty in dealing with it.

17 In the two years leading up to these incidents, the relationship between the accused and JE had broken down. JE would frequently speak roughly and aggressively to him. JE never used physical violence. On one occasion when JE heard the accused use the word “f –“ in front of LE, he said to the accused “Don’t you ever swear and say f – again or I will knock the f - ing head off you”. The way JE spoke to the accused troubled LE and led to arguments between them about that subject. LE thought that there had been an improvement in the relationship between the accused and JE in the early months of 2008.

18 On the day before the attack, LE found two bibles torn up in a waste paper bin when she was cleaning the accused’s room. When she asked why he had ripped up the bibles, the accused responded “I don’t need them any more”. LE described the accused as then having a “total shutdown” and refusing to communicate further. LE told the accused that if he would not talk to her, he would have to tell a psychologist what happened and then the psychologist would tell her.

19 The attack took place on the morning of Tuesday 25 March 2008. This was the Tuesday following the Easter holiday period. It was a day on which the accused would normally have attended school.

20 On this morning LE woke the accused at 6.15am. She told him that she would be back at 6.30am to get him up for school. At about 6.30am the accused came into the kitchen in his school uniform. At the time LE was making his lunch for school. The accused asked if Bella was in the house (Bella was the family cat). LE said she did not know and went to a window to look out.

21 As LE pulled back the curtain she saw reflected in the glass the accused approaching her from behind holding a knife in his hand. The accused stabbed LE on a number of occasions and she screamed. The accused kept mumbling the word “afterlife” as he was attacking LE. LE continued to scream. Subsequent medical examination showed that she had been stabbed five times. She suffered a stab wound to the left side of her head and neck, to the left side of the chest at the back, to the front of the chest, to the right side of the stomach and to the front of her left thigh.

22 Her screams caused JE to come downstairs from their bedroom. He was wearing only a shirt at the time. The accused then attacked JE with the knife. LE, who was lying on the kitchen floor, did not see the attack but she heard JE pleading with the accused to put down the knife. Subsequent medical examination showed that JE had received three stab wounds. He had been stabbed on the right side of the neck, in the chest and in the stomach. It was the stab wound to the chest which caused death.

23 LE said that the voice of the accused was not his normal voice. She said “He was different, he was different, I just know that he acted different, he sounded different. He was strange. I don’t know, I don’t understand.” In her evidence at trial LE said about this occasion:

24 Somehow LE gained access to a mobile phone. She was able to dial OOO and advise what was happening. At some point, which is not clear, the accused knocked the mobile phone out of LE’s hand. LE said to the accused that if he wished to get away he should go to school. This apparently caused the accused to go upstairs to change his shirt which was covered in blood.

25 The police arrived at about the same time as the accused came downstairs after changing his shirt. They arrived at 7.09am. An ambulance was present but its personnel did not try to enter the premises until given clearance by the police.

26 Senior Constable Evans saw the accused bent over behind the front door. He identified himself as a police officer and asked what was going on. The following exchange then took place:

ACCUSED: Hang on I’ll come out through the garage”.

27 Shortly thereafter the accused emerged from the garage. He was wearing a school uniform consisting of a short-sleeved light blue shirt with the school logo on it, grey long pants and black leather shoes. The accused walked towards police officers, who were standing in front of the house. When police officers grabbed him by either arm, the accused became violent and resisted but then calmed down and sat on the ground as directed. After he sat down, the following conversation took place between him and Senior Constable Evans:

EVANS: Mate I just want to know who you are.”

28 While the accused was in that position he was asked where the knife was. He identified his school bag from which police removed a kitchen knife, approximately 35 cm in length, with a 23 cm blade. The knife appeared to have been washed. It came from a knife block in the kitchen.

29 The evidence of the police officers who were at the premises when the accused was arrested was that he had been very angry when he learned of their presence and when he was physically restrained. The evidence of Senior Constable Evans was as follows:

…

A. Yes, yeah, he was quite compliant at the house after that.

30 After the accused was taken into custody, police examined the contents of his school bag and removed a number of documents which had been prepared by him. Some of these documents had been prepared on his computer and others were handwritten. The computer-generated documents appear to predate the handwritten ones. The computer generated documents had headings such as “Oneself with Satanism (10th Feb 2008)”, “Will”, “5455” and “Contenplation”. Behind the “5455” document there was a diagram of the human skull and an anatomical depiction of the human neck. Apparently the numbers “5455” on a digital telephone spell the word K-I-L-L.

31 The “5455” document lists as “people to kill’ the accused’s parents, two school friends A and M, and himself. The document sets out in some detail how the accused planned to kill those persons and lastly take his own life.

32 The document “Oneself with Satanism (10^th Feb 2008)” contains a somewhat rambling statement of the accused’s belief system. It seeks to explain why he had rejected God and why he had embraced Satanism. The accused appears to blame God for his mother’s miscarriage and the loss to him of a brother. The accused appears to believe that if he committed suicide he would go to his own “Heretic Afterlife” which he would control. He sets out the reasons for killing another schoolboy, M, so that he could capture that boy’s soul and they could spend time together in his special afterlife. It is of significance that M was a mere acquaintance at school and not a close friend.

33 The document entitled “Will” sets out directions for the accused’s funeral, specifically that he was not to be buried as a Christian.

34 The document “Contenplation” sets out why the accused decided to abandon his plan to kill the other schoolboy, A. The document sets out reasons why the plan proposed in document “5455” would not work.

35 The handwritten document headed “Do Note” contains further musings about why it was important to kill M. That document concludes with the word “DONE”. The other handwritten document entitled “CHEMISTRY” refers to the documents entitled “Oneself with Satanism” and “5455”. It contains further musings about the accused’s personal beliefs and why M and others have to be killed so that those beliefs can be brought to fruition in the accused’s special afterlife. Implicit in this document and the earlier documents is the accused’s belief that by being in control of his own afterlife he has overcome the problems normally associated with suicide.

36 I have concluded that it was the accused’s intention on 25 March 2008 to leave the family home, go to school and kill M and then kill himself so as to make a reality of the plans and theories contained in these documents. It seems clear that the accused intended these documents to be found in his school bag after he had committed suicide.

37 The police also took possession of the accused’s mobile phone. They subsequently discovered a voice recording in an audio file on that phone. It was entitled “Thoughts of Inner”. The audio file refers to document “5455” and explains that he had intended to kill JE on 20 March but was forced to change his plans because JE got up earlier than usual and the accused felt “orthodox”. The audio file is remarkable for the rage and hatred which the accused apparently felt for JE.

38 The police also found a considerable quantity of documents in the bottom drawer of the bedside cabinet in the accused’s bedroom. Included in these documents was an exercise book which appears to contain entries made between 2006 and the end of 2007. While the entries are not in chronological order and particularly coherent, they demonstrate the development of the accused’s belief system, in particular his rejection of God and his increasing interest in Satanism. The other documents found in that drawer include illustrations of persons being violently stabbed and many references to the concept of death being a ticket to freedom. One document seems to be a song or a poem with the heading “My Regards – My Suicide Note”.

39 Even to the layperson, these writings and musings by the accused show bizarre and disordered patterns of thought. This is particularly so of those documents found in the accused’s schoolbag which were created by him in the weeks leading up to the attack.

Psychiatric/psychological evidence

40 The Court had the assistance of psychiatric and psychological evidence. The Crown relied upon a report of Dr Allnutt, forensic psychiatrist, dated 29 May 2009. Doctor Allnutt gave evidence in the trial. The accused relied upon two reports of Dr Nielssen, psychiatrist, dated 16 September 2008 and 6 March 2009. Doctor Nielssen gave evidence. The accused also relied upon two reports from Peter Champion, consulting clinical psychologist, dated 23 September and 7 December 2008. Mr Champion did not give evidence.

41 Mr Champion interviewed the accused on 2 September 2008 for three hours and on 10 November 2008 for two and a half hours. He took a history of the accused hearing voices on a number of occasions, sometimes the voices were external and sometimes the voices were internal. The accused told Mr Champion how over a period of time he transitioned from Christianity through a period as a “heretic” and unorthodox believer to his current stage of being a Satanist. He confirmed his intentions on the day of the attack to kill the school boy, M, and then kill himself with a view to M becoming his “brother” in the afterlife to replace the child who was lost when his mother had her miscarriage. He told Mr Champion that he had difficulties in coping with the idea that he had a sibling who was not carried to term and that this had troubled him a great deal.

42 Mr Champion concluded that the accused had an excessive interest in violence in the form of movies and computer games. The accused told him that the sort of attacks with which he had been charged could be justified in the right circumstances. The accused told Mr Champion about his love of heavy/thrash/death “metal” music from groups such as Slipknot. The accused said that he felt the philosophies in the music resonated with him.

43 Mr Champion set out his conclusions as follows:

“On the basis of the account elicited from the accused on the two occasions I saw him, I think it likely that the accused was in fact substantially impaired by an abnormality of the mind (hallucinations and delusional thought inter alia being reported) which impacted on his ability to understand events, to judge whether his actions were right or wrong and to control himself, were substantially impaired by an abnormality of the mind arising from an underlying condition (in all likelihood psychosis).

I have been asked if the accused was mentally ill at the time of the commission of the alleged offences within the meaning of the McNaughten Rules. If I can assume the accuracy of the accused’s report which suggested the presence of hallucinations and delusions at or about the time of the alleged offences, noting also the contents of the various documents and materials seized by the police; and if I can assume the accuracy of the account of the incidents which led to him being charged insofar as the alleged offences were planned as part of a process to take himself (and another) into the afterlife to live with Satan or potentially to be some form of God, such that while accepting by societal standards (that is standards other than his own) that his actions were wrong, he still felt them justified; then I think this raises the defence of mental illness as one which needs to be considered …”

44 Doctor Nielssen took a similar history from the accused as that recorded by Mr Champion. The accused said that he had become very depressed because of the constant bullying by his father. When asked if he thought Satan was involved in the assault on his parents the accused said “He had an influence on me … I felt suicidal … He really twisted my mind … it was like the goat was there … destructive animal trying to get at me.” The accused told Dr Nielssen that by killing M he believed that they would be “brothers” in the afterlife.

45 In his report Dr Nielssen expressed his conclusion as follows:

“In my opinion, the accused committed the offences during a brief psychotic episode in which he held the delusional belief that he was compelled to follow Satan and that the main person on his “kill list”, a person he saw on the bus to school but whom he hardly knew, would be his brother in the afterlife.

Hence I believe the accused has the defence of mental illness open to him to the charges of the murder of his father and the attempted murder of his mother. He has a disease of the mind in the form of an emerging schizophrenic illness resulting in a defect of reason in the form of bizarre religiose belief. At the time of the offences his delusional belief deprived him of the awareness that his actions were morally wrong. Moreover, the disorganised thinking and gross disturbance of emotional regulation that accompanies acute psychosis prevented him from reasoning with sense and composure about the consequences of his actions.”

46 In his evidence at trial, Dr Nielssen said:

“Q. Has your view got stronger as you have been provided with more details, more documents?
A. Yes, it is clear in the opinion, the evolving opinion, in the two reports I think all of us have had difficulty, including Professor Greenberg, extracting the rationale for Mr E's behaviour, but as additional corroborative materials become available and with the benefit of then taking that back to Mr E and asking him about it, it has become clear that he is affected by these fixed delusional beliefs.

47 Under cross-examination Dr Nielssen said:

“Q. He knew it was legally wrong and he knew other people would think it was wrong?
A. Yes.

48 Doctor Allnutt saw the accused on 27 April and 18 May 2009. He complained about his father to Dr Allnutt as follows:

“His father was in the accused’s view, overly emotional, unreasonably resisting him doing things his way, pushed things on him and if he did not do them his father would threaten to physically assault him. He suppressed his own thoughts and feelings about this and “bottled them up inside”;”

49 The accused described to Dr Allnutt how he felt on the day of the attack as follows:

“On the day of the alleged offence he woke up, he went downstairs after getting dressed; he had many thoughts about what would happen in the “afterlife”; he also had thoughts about the transition from this life to another afterlife; he had thoughts about what he was going to do when he left the house; his plan was to go to school as usual, get off the bus with M, take him to a secluded place and kill himself and M (by cutting his veins in his neck and himself and when they died their blood would mix and he and M would then go to his afterlife); at the time he said he felt certain that this would happen.”

50 Doctor Allnutt thought that there were reasonable grounds to conclude that the accused suffered from a psychotic illness. Doctor Allnutt’s conclusion on this issue was:

“His state of mind at the material time of the alleged offence was consistent with psychosis which is a mental condition that manifests as a defective reasoning process; psychosis interferes with a person’s ability to make rational appraisals of their environment because it interferes with their ability to identify an error in their judgment and correct this and as a consequence individuals with psychosis could manifest with a “defect of reason” and “substantial impairment” in mental reasoning.”

51 The conclusion arrived at by Dr Allnutt in his report was expressed as follows:

“Overall, however, on balance, I am of the view that he was impaired in his capacity to judge right from wrong and he would have been compromised in his capacity to reason about the wrongfulness of his actions with a moderate degree of sense or composure.”

52 In his evidence at trial Dr Allnutt was asked to explain what he meant by that conclusion.

And I used the word compromise because I was trying to illustrate a different defence, that is the insanity defence. For me, part of the difficulty in this case is the degree of incapacity so I used a broad term that there was a problem in his capacity and I put it in broadly, there was some problem. The degree, I've left open.

Q. Why did you do that?
A. When I wrote the report I was struggling with coming to some conclusion about the degree of incapacity. Whether he was compromised to some degree or incapable of reasoning, which is the test for insanity.

For me the difficulty with this case is, for me in my assessment of this case, my difficulty is putting him in one box or the other. That is, that he was so compromised that he was incapable of reasoning about the matter of wrongfulness versus that he wasn't so compromised that he was incapable but he was impaired or substantially impaired in his capacity to judge right from wrong.

53 Under cross-examination Dr Allnutt said:

Q. And the same if you went so far as to say had a lot to do with his psychosis. That illness meant he was not reasoning about the wrongness of his actions in the way that ordinary people would?
A. Look, on balance if I was asked to fall on one side of the fence or other I would fall on the side of the incapable of reasoning about the matter of wrongfulness.

54 I am satisfied beyond reasonable doubt that the accused had an intention to kill JE and that JE died as a result of a wound inflicted during the attack upon him and that subject to issues concerning mental responsibility, the culpability of the accused for the crime of murder has been established. Similarly, I am satisfied to the necessary standard that the accused had an intention to kill LE when he wounded her and that subject to the issue of mental responsibility, the culpability of the accused for the crime of attempted murder of LE, has been established. I note that these matters were expressly conceded by senior counsel for the accused.

55 As previously indicated the real issue before the Court is whether the accused was suffering from mental illness, as that term is understood in s 38 of the Mental Health (Forensic Provisions) Act 1990 when the attacks occurred.

56 The onus borne by the accused on this issue is stated in The King v Porter (1933) 55 CLR 182 at 184 as follows:

“When the jury turned from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused’s person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.”

57 The classic statement of principle is contained in R v McNaughten [1843] 8 E. R. 718 as follows:

“To establish a defence on the ground of insanity, it must be clearly proved 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 to not 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.”

58 What that statement of principle makes clear is that the relevant time at which the accused’s state of mind is to be assessed is at the time of the attacks. That is not to say, however, that his actions before and after cannot be considered to determine his state of mind at the relevant time. Not surprisingly, the accused has been able to offer little useful evidence as to what he was thinking at that time but his writings and statements shortly before and his statements to the psychiatrists and psychologist afterwards are important to assess his state of mind at the relevant time. In this case they provide the best evidence of that state of mind.

59 The McNaughten statement of principle requires that at the time of committing the act, the accused was labouring under a defect of reason from a disease of the mind. The evidence on that issue is all one way. The psychiatrists and the psychologist have concluded that at the time of the attacks the accused was suffering from a form of psychosis, probably schizophrenia. As defined by Dr Allnutt, such a psychosis clearly satisfies the requirement for the defect of reason being due to a disease of the mind.

60 In this case it is not suggested, on behalf of the accused, that he did not know the nature and quality of the acts he was doing. It is accepted that he intended to kill his parents and that he understood what this involved.

61 The issue in this case is whether, on the balance of probabilities, the accused has established that he did not know that what he was doing was wrong.

62 This concept was explained on a number of occasions in Porter as follows:

“The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing but that he was quite incapable of appreciating the wrongness of the act. … You are dealing with a very different thing – with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression “know”, “knew that what he was doing was wrong”. We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. 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 would 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 … In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of [attacking his parents] the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness.” (P 189-190)

63 I have concluded that the accused has established, on the balance of probabilities, that at the time when he attacked his parents, he had such a mental disorder or diseased intelligence that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable persons understand right and wrong.

64 It is true that the accused knew that what he was doing was against the law. This, however, is not decisive. As the psychiatrists and the psychologist pointed out in their reports, despite that knowledge the accused apparently disassociated himself from what normal people would regard as rightness and wrongness and considered that his actions were justified.

65 The evidence of the psychiatrists and the psychologist support this proposition. Whereas Dr Allnutt was somewhat equivocal in his report, in his evidence at trial he reached the conclusion which I have set out at [54]. In answer to a question which I put to him concerning the audio file on the accused’s mobile telephone, Dr Allnutt said:

“The rage raised questions for me is this, was that rage that of a young man angry with his parents or was that somebody who was angry because for delusional reasons and the intent, the intent arises out of both emotions. So it never really altered my view substantially. I still sat in the same position after listening to the tape.

Conclusion and orders

66 What I have to decide as the tribunal of fact is whether the contribution of the accused’s delusions and disordered patterns of thought, sourced from his underlying psychotic condition, is such that his capacity at the time of the attack to judge whether his actions were right or wrong or to exercise control was so substantially impaired as to warrant a verdict of not guilty on the grounds of mental illness. I am satisfied that the accused was so impaired in his capacity to judge whether his actions were right or wrong. Accordingly he must be found not guilty of the offences with which he has been charged by reason of mental illness.

67 As was pointed out in submissions, a verdict of not guilty by reason of mental illness means only that legally the accused is not to blame for his actions nor to be punished for his actions. It does not mean, however, that the accused’s present detention ends. Section 38 of the Mental Health (Forensic Provisions) Act 1990 provides that the Court can order that the accused be detained unless released by due process of law. That due process means that the accused will come under the direct supervision of the Mental Health Review Tribunal. The accused cannot be released conditionally or otherwise until that Tribunal headed by a judge or former judge of this Court allows. The Tribunal will only allow it when and if it is satisfied that neither the accused nor the community are in any way at risk. That is the course which I propose to follow.

68 In conclusion, I wish to extend the sympathy of the Court to the relatives of the victims, particularly the accused’s mother. The events of the morning of 25 March 2008 were tragic and entirely unexpected. Outwardly the accused was no different to many boys of his age and background. The signs of his developing psychosis were simply not obvious. No one, his school, the church, or particularly the accused’s mother, should hold themselves responsible for what occurred.

69 I make the following orders:

In relation to both counts 1 and 2 on the indictment.

(1) I find that the accused is not guilty by reason of mental illness. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990 I order that SE, formerly referred to in this judgment as the accused, be detained at the Frank Baxter Juvenile Justice Centre.

(2) I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of this order (s 39(3) Mental Health (Forensic Provisions) Act 1990).

**********

01/09/2009 - Typographical error - Paragraph(s) Cover sheet

Citations

R v SE [2009] NSWSC 785

Most Recent Citation

Cases Citing This Decision

3

A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31

Attorney General of NSW v X [2013] NSWSC 1392

R v Steurer [2009] ACTSC 150

Cases Cited

1

Statutory Material Cited

2

Anderson v Hotel Capital Trading Pty Limited [2003] NSWSC 1195

Actions

Download as PDF Download as Word Document

CITATION:	R v SE [2009] NSWSC 785 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	03/08/2009, 04/08/2009, 05/08/2009
JUDGMENT DATE :	12 August 2009
JUDGMENT OF:	Hoeben J
DECISION:	I find that the accused is not guilty by reason of mental illness. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990 I order that SE, formerly referred to in this judgment as the accused, be detained at the Frank Baxter Juvenile Justice Centre. I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of this order (s 39(3) Mental Health (Forensic Provisions) Act 1990).
CATCHWORDS:	CRIMINAL LAW - indictment charging murder and attempted murder - trial by judge alone - defence of mental illness - background evidence - psychiatric opinion - verdict in accordance with psychiatric evidence.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	R v McNaughten [1843] 8 E. R. 718 The King v Porter (1933) 55 CLR 182 at 184
PARTIES:	Regina - Crown SE - Accused
FILE NUMBER(S):	SC 2008/15378
COUNSEL:	Mr PM Miller - Crown Mr A Haesler SC/Mr M Polden - Accused
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor, Legal Aid Commission - Accused