R v Spencer

[2020] NSWSC 386

Supreme Court

New South Wales

Medium Neutral Citation:	R v Spencer [2020] NSWSC 386
Hearing dates:	7 April 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Common Law
Before:	Hidden AJ
Decision:	1. Accused found not guilty by reason of mental illness. 2. Ordered to be detained until released by due process of law.
Catchwords:	CRIMINAL LAW – trial by judge alone – murder – defence of mental illness
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health Act 2007 (NSW).
Cases Cited:	Hawkins v The Queen (1994) 179 CLR 500 The King v Porter (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Regina (Crown) Matthew Spencer (Defendant)
Representation:	Counsel: Mr Liam Shaw (Crown) Mr Eric Wilson SC (Defendant)   Solicitors: Office of Department of Public Prosecutions (Crown) Aboriginal Legal Service (Defendant)
File Number(s):	2018//279561
Publication restriction:	Nil

Judgment

1. The accused, Matthew Spencer, is on trial before me, sitting without a jury, for the murder of his father, Shane Spencer. It is the Crown case that he killed his father on 11 September 2018 by stabbing him repeatedly at the home at Trundle where they were living. Pursuant to s 184 of the Evidence Act 1995 (NSW), on the advice of his counsel, he has made formal admissions of the elements of murder: that he caused the death of his father by stabbing him multiple times in the chest, with the intention of killing him. In any event, there is ample evidence in the Crown case to establish those elements beyond reasonable doubt.

2. The only issue in the trial is whether the accused has made out the defence of mental illness or, alternatively, the partial defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW). There is a large volume of material before me, including psychiatric reports obtained by the accused’s representatives and by the Crown, tending to establish the defence of mental illness and rendering it unnecessary to consider the issue of substantial impairment. The Crown accepts that the defence of mental illness is made out. In the circumstances, it is unnecessary to address the evidence in detail. A relatively brief summary will suffice.

Background

3. The accused was 26 years old at the time of the offence, and is now 27. He is the only child of his parents’ union, but he has five half-sisters who were born of other relationships of his mother. Two of those sisters, Rebecca Wilkes and Hannah Broadhurst, made statements to the police which are in evidence. Also in evidence are statements of the deceased’s father, Henry Spencer, his sisters, Deborah Keighran and Leonie Head, and his niece, Kimberley Ryan. A picture of the accused’s disturbed background emerges from those statements and the statements of other witnesses, together with the history which he provided to the two psychiatrists who provided reports.

4. His parents had a turbulent relationship, involving violence on the part of each of them. Both of them were daily drinkers and both abused a variety of illicit drugs. They separated when he was 2 years old, and the deceased obtained custody of him. His mother died in 2010, when he was 18 years old. He was deeply affected by her death, as he was by the death of his paternal grandmother in the same year.

5. Life during his childhood and teenage years was disrupted. Put shortly, he and the deceased lived for a time with the deceased’s parents and at other times in refuges. For periods he resided with his aunt, Ms Head, or his sister, Ms Wilkes and her grandmother. This was in the area of Western and South Western Sydney and Campbelltown.

6. His education was limited, changing schools a number of times. He completed Year 9 at Picton High School, and left during Year 10. Thereafter he had sporadic unskilled employment. He also came into conflict with the criminal law from time to time, both as a juvenile and as an adult.

7. He has a significant history of the abuse of illegal drugs. He began smoking marijuana when he was young, perhaps as early as 10 years old. He was observed to be smoking marijuana with the deceased. From his mid-teens he was using a variety of drugs, including methylamphetamine (ice). He and the deceased also drank alcohol heavily, although he less than his father.

8. His relationship with the deceased had long been troubled. When he was an adult they were seen and heard to argue many times over money and drugs. In 2015 the deceased bought the home in Trundle, and the accused joined him there in the following year. The arguments continued, and on occasions they came to blows.

Psychiatric history

9. The accused was diagnosed with schizophrenia in his late teens, apparently by a child psychiatrist in the Juvenile Justice system. Certainly, when he was in his early 20s, some of his family observed delusions of a religious kind. By way of example, on one occasion he told some of his sisters that he thought that he was God. He added, “I look at famine on the TV and I can save them just by looking at them”, and “I can see demons in people’s faces”. On another occasion, at his grandmother’s home, he threatened to kill her, saying that he was God and could see Mary Magdalene, and claiming that one of his sisters was in fact his daughter. He went into the bathroom with a hammer and broke the mirror. Police had to be called to deal with the situation.

10. His paternal grandfather recorded that in about 2014 the accused was saying strange things, including that he was God and that the grandfather and the deceased were the devil. Delusional behaviour of that kind continued and worsened over time.

11. In December 2016, he was dealt with in the Local Court for assault occasioning actual bodily harm, following his assault upon a girl he saw in a public place. He thought that he was Adam and that she was Eve, and that she was conspiring against him. This was plainly delusional, and he was dealt with under s 32 of the Mental Health Act 2007 (NSW).

12. In 2017, when he was staying with his grandfather at Campbelltown, the accused attempted suicide by throwing himself in front of a bus. This led to his admission for a period to the Mental Health Unit at Liverpool Hospital, from which he was discharged on a community treatment order. This was one of a number of admissions to hospital psychiatric wards before that occasion and after it.

13. These included an admission to Bloomfield Hospital late in 2017, having presented with suicidal ideation, anxiety and auditory hallucinations. He reported believing that he was Jesus and hearing the voice of the devil. It was noted that his schizophrenic illness was complicated by non-compliance with medication and the use of drugs, including methamphetamine. Although he improved with medication during his admission, it was noted on his discharge that he maintained “grandiose and religious delusions”, including the belief that he was Adam, Jesus, the Archangel Michael and the Star Regulus.

14. Ms Carol Whatling, registered nurse with the Parkes Community Mental Health Service, recorded that she had been the accused’s case manager pursuant to community treatment orders for the period of about 18 months leading up to the offence. She recorded that she had difficulty maintaining regular contact with him, that he continued to maintain delusional religious beliefs, and that he would be affected by cannabis on most occasions that she saw him. She noted that he “generally lacked insight and didn’t believe he had a mental illness”. She added that he did not believe that he needed to be on a community treatment order or to undergo the periodic injections of medication required by the order.

15. This is only a thumbnail sketch of the accused’s persistent psychiatric history over several years.

The offence

16. For the purpose of these proceedings, the accused was assessed by two respected forensic psychiatrists. Dr Anthony Samuels, engaged by the defence, interviewed him in custody on 1 April 2019 and provided a report dated 12 April 2019. Dr Kerri Eagle, engaged by the Crown, interviewed him on 19 September 2019 and provided a report dated 3 October 2019.

17. To each psychiatrist the accused gave an account of the offence broadly to the same effect. The stabbing occurred in the early evening of 11 September 2019. He had been experiencing bizarre thoughts arising from a particular pop song in the rap style. The song contained lines such as, “What the hell are you waiting for…put on the pressure of walking in those shoes…feeling so helpless…what are you waiting for because I’ve got to kill the devil”. He also referred to listening to the music of another rapper, Ab-Soul. He told Dr Eagle that he saw his father as the devil. He told Dr Samuels that he saw his father carrying a knife, apparently for the purpose of cutting sausages, but believed that he was going to attack him. He said that he was not sure what happened, but thought that the event may have been precipitated by some comments his father made about one of his sisters.

18. He told both psychiatrists that he obtained a knife from the kitchen, with which he attacked his father. To Dr Samuels he said that, having done so, he felt “relief like I’d conquered Satan. I thought he was Barack Obama, like a vessel of the state”.

19. His behaviour after the event makes it clear that he was in a psychotic state. Also in the early evening, probably shortly after the fatal event, he posted entries on Facebook reading “Gangsta rap made me do it”, “Father please forgive me for I know not what I do”, and “Trust God. It’s written in the stars. No satellites can change it. I’m sorry once again. But I gotta show no love. Love will get you killed”.

20. Again in the early evening he attended the Trundle Hotel, where he was noted to have blood on his clothing and his left cheek and appeared to be disturbed. He asked a woman at the hotel on a number of occasions, “Am I in trouble?” He also asked her if she had ever loved anyone, to which she replied “Yes”. He then said, “Well, you should be killed because love kills”. At another stage he was seen to be giggling inappropriately and saying, “Gangsta rap made me do it, I swear”. To a male patron of the hotel he said that he was going to gaol, and spoke about religion and God. The patron felt that he was “not right in the mind”.

21. Shortly before 8pm the accused rang the Parkes Police Station from the Eagle phone at the Trundle Police Station. He admitted to police having killed his father by stabbing him and said that the knife was in the sink. Among other things he said, “It was the music that made me do it…Satan did it. I didn’t mean to do it”. He referred again to “Gangsta rap” and the song that made him do it, while also saying that he did not know why it happened. He described his father as his “best friend” but added that he “has just been using me to manipulate his plan with Satan”.

22. Police were despatched to Trundle and the accused was arrested. A body video worn by one of the arresting officers recorded an interview with him there, in which he made statements very similar to those he had made on the Eagle phone. He also referred to his father as “Satan” and expressed other bizarre thoughts, including his belief that he was “Leonidas from 300,” who was a lion from a tribe of Judah.

23. After some discussion about his right to silence and the fact that he had rung the police, he said that there was “nowhere to hide…I’m in the Devil’s elbow and I need to get out somehow”. He also referred to destiny waiting for him, and repeated his Facebook message that it was “written in the stars. No satellites can change it”.

24. He was conveyed to Parkes Police Station. The custody and management record at that police station notes repeated statements made by him to the custody manager, replete with delusional content, largely of a religious nature. In reference to the offence, he said, “I just killed my dad so I don’t know why I did it. His eyes went black…. If I didn’t do it I thought I was going to burn in hell. That was my options if I didn’t do it. That’s what the music told me”.

25. During a forensic procedure conducted in the early hours of 12 September, he made further statements along similar lines of religious delusion, including an assertion that he was Jesus and that he was “sent here to kill Satan”. Later that morning a detective commenced an electronically recorded interview with him. He refused to be interviewed but did say, “Satan told me to do it”. He also described himself as “Michael at the moment”. Again he referred to the deceased as “Satan”.

26. That afternoon, when he was about to be admitted into custody at Wellington Correctional Centre, he made similar statements to a police officer. He said that he was Jesus, that he was a good person and had no evil in him. He also said that the rap song was “talking to me and I knew then that I had to kill my father, I killed Satan”.

The Defence

27. As I have said, the accused admits having killed his father but relies on the defence of mental illness, that is, that he was mentally ill so as not to be responsible, according to law, for his action at the time: s 38(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). He bears the burden of establishing that defence on the balance of probabilities. The defence falls to be determined once it is established that the accused caused his father’s death by a deliberate act and, while the accused has admitted an intent to kill, it is strictly unnecessary to consider that issue: Hawkins v The Queen (1994) 179 CLR 500.

28. The basis of the defence is to be found in the nineteenth century McNaghten Rules, the test being whether at the time of the offence the 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 what he was doing was wrong”.

29. In this case, the accused clearly understood the nature and quality of his act, that is, that he had stabbed the deceased to death. It also appears, from his statement to a patron at the hotel that he was going to gaol and his contacting the police, that he had some understanding that to have done so was against the law. The question is whether he understood that what he was doing was morally wrong.

30. This issue was explained in lucid terms by Sir Owen Dixon in his summing up to the jury in The King v Porter, reported in (1933) 55 CLR 182. Speaking of the accused in that case, his Honour said (at 189-190):

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.

31. For present purposes, in modern terms, the question is whether the accused’s capacity to reason about the wrongfulness of his act was compromised by a mental illness. Both forensic psychiatrists confirmed the diagnosis of the accused as suffering from schizophrenia, which Dr Eagle described as a “chronic psychotic disorder”. A question arises as to the extent to which the offence was the product of his use of drugs.

32. During the conversation with police on the Eagle phone he was asked whether he had taken any drugs that day, and he said that he had used ice. However, when asked when he had done so, he said, “Maybe yesterday and two days ago. I don’t remember”. Later in the conversation he said that he had smoked “a couple of points” of ice the day before. However, he told Dr Eagle that he had smoked methylamphetamine and cannabis and consumed alcohol on the day of the offence.

33. A blood sample taken from the accused upon his arrest was analysed. Alcohol was not detected but there were signs of recent consumption of cannabis and methylamphetamine. A pharmacologist, Dr John Farrar, concluded that it was not possible to determine when the accused had consumed cannabis or the extent of any cannabis induced impairment of his cognitive function at the time of the incident. As to methylamphetamine, however, he considered that it was unlikely to have been present in a sufficient concentration to have produced “profound excitory effects”, particularly if the accused was a regular user of the drug.

34. Dr Eagle reported that both drugs can precipitate and exacerbate psychotic symptoms in a person with an underlying chronic psychotic illness. In this case, she considered it unlikely that the use of methylamphetamine “triggered or exacerbated a psychotic episode” during the period immediately preceding the offence.

35. Dr Samuels considered this issue in a supplementary report dated 19 March 2020. In light of the blood analysis and the report of Dr Farrar, he concluded that the accused was “not in a state of acute drug induced intoxication or agitation at the time of the commission of the offence”. The effect of the reports of both psychiatrists on this issue is that, while drug use may have had a triggering or exacerbating effect, the offence was the product of an underlying mental illness.

36. Both psychiatrists were of the opinion that the defence of mental illness was made out, based upon their interviews with the accused and their review of the psychiatric history and the evidence in the Crown case. This, of course, included not only the accused’s account to them of his state of mind at the time of the killing but also the evidence of his mental state demonstrated by his behaviour and his statements to a number of witnesses, including police, over the period after it.

37. Dr Samuels was of the view that at the time of the offence the accused was experiencing “perceptual disturbances”. He was experiencing “ideas of reference, attributing meanings to lyrics of particular songs”, and was in “a persecutory state, believing that his father was part of a conspiracy and was going to kill him”. Dr Samuels concluded:

It is my view that Mr Spencer has open to him the defence of Not Guilty by Mental Illness. As noted above, I believe that at the time of the commission of the offence, he was labouring under such a defect of reason arising from a disease of the mind (Chronic Paranoid Schizophrenia) that he did not know the nature and quality of the act that he was committing and, at the time, did not know that it was wrong.

38. In his supplementary report, after considering the material about the accused’s consumption of drugs around the relevant time, Dr Samuels affirmed that view. As I have said, it appears to me that the accused was aware of the nature and quality of his act, but I find Dr Samuels’ view about his understanding of the wrongfulness of his conduct persuasive.

39. Dr Eagle was of the view that the accused was capable of comprehending the significance of the act of stabbing and killing his father, but on his understanding of the wrongfulness of that act she reported:

Mr Spencer displayed positive symptoms of psychosis immediately following the Index Offence. For instance, during the forensic procedure he made various references to bizarre beliefs and religious themes including that he had killed Satan, that he was Jesus and that a song had told him to do it. These beliefs are consistent with delusions that Mr Spencer has previously displayed during relapses of psychosis, as documented in clinical records.

Mr Spencer reported killing his father because he believed his father was Satan. He made reference to believing he was Jesus. He described referential beliefs (misinterpreting potentially benign stimuli as having personal significance) from songs. He reported being scared of his father and thinking he was going to hurt him. Mr Spencer’s actions in killing his father appeared to be motivated by the belief that his father was Satan. During the forensic procedure, Mr Spencer also asked “did I do the right thing” and “is it part of the prophecy”.

As a result of Mr Spencer’s symptoms of psychosis, I am of the view that he was unable to reason with any degree of calmness or composure as to the moral quality of what he was doing at the time of the Index Offence, and as such was unable to know the wrongfulness of his actions.

40. I find Dr Eagle’s analysis also to be persuasive. I have referred to the accused’s troubled relationship with the deceased and the arguments and, on occasions, violence characteristic of it. I should also record that at one stage during the conversation over the Eagle phone, when asked why he had killed his father, the accused said, “My dad is always at me. We don’t get along. I didn’t mean to do it”. Nevertheless, I am satisfied that the killing was not the product of animosity engendered by that troubled relationship but was truly the result of a psychotic state caused by a serious mental illness. I am satisfied on the balance of probabilities that the defence is made out.

41. I find the accused not guilty by reason of mental illness. This, of course, does not mean that he will be immediately released. He will be detained in a prison and later in the secure ward of a psychiatric hospital for a significant period, subject to a regime of treatment and rehabilitation supervised by the Mental Health Review Tribunal. In due course, if his progress is satisfactory, he is likely to be allowed into the community, initially on leave but later on a permanent basis. However, relevant provisions of the Mental Health (Forensic Provisions) Act require that before such leave or release is granted the Tribunal must be satisfied that this would not seriously endanger the accused himself or any member of the public.

42. I shall make an order under s 39(1) of the Mental Health (Forensic Provisions) Act that the accused be detained until released by due process of law, and I shall consult the parties about the terms of that order. However, before making any formal order, I shall receive a victim impact statement, pursuant to s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW), of the deceased’s sister, Ms Keighran.

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Decision last updated: 09 April 2020