R v Tantra (No 2)

[2010] NSWSC 400

CITATION:	R v Tantra (No 2) [2010] NSWSC 400
HEARING DATE(S):	27 April - 3 May 2010
JUDGMENT DATE :	5 May 2010
JUDGMENT OF:	R A Hulme J
DECISION:	Not guilty on the grounds of mental illness
CATCHWORDS:	CRIMINAL LAW - murder - special hearing - judge alone - whether accused committed offence - if so, whether mentally ill at the time
LEGISLATION CITED:	Mental Health (Forensic Provisions) Act 1900 Evidence Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Fleming v R [1998] HCA 68; 197 CLR 250 Martin v Osborne (1936) 55 CLR 369 Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 Petty & Maiden v R [1991] HCA 34; 173 CLR 95 R v M'Naghten (1843) 8 ER 718 R v Peacock (1911) 13 CLR 619 R v Porter [1933] HCA 1; 55 CLR 182 R v Presser [1958] VR 45
PARTIES:	Regina Vita Tantra
FILE NUMBER(S):	SC 2008/5737
COUNSEL:	Mr C McPherson (Crown) Mr C Bruce SC (Accused)
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A Hulme J

5 May 2010

2008/5737 Regina v Vita TANTRA

JUDGMENT

1 HIS HONOUR: The body of Ms Linda Maree Tregerthan was found lying on the floor in the sunroom of her home in Byron Bay on 30 August 2004 by her 17 year old daughter. She had been savagely and ferociously attacked and killed by an assailant armed with a knife.

2 The accused has been charged with murder. He was charged on 15 January 2007. He was found unfit to be tried at a hearing before Barr J in February 2009 pursuant to s 10 of the Mental Health (Forensic Provisions) Act 1900 (“the Act”).

3 Unfitness to be tried is a concept long recognised under the common law. There are various criteria to be considered when such an issue is raised. Reference is commonly made to the criteria set out in R v Presser [1958] VR 45 at 48. The oft-quoted passage commences with a general statement of the test of unfitness to be tried:

It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.

4 The Mental Health Review Tribunal (“the Tribunal”) subsequently determined on the balance of probabilities that the accused would not become fit to be tried for the offence in a period of 12 months following the finding of unfitness (s 16). The Tribunal notified the Court and the Director of Public Prosecutions (“the Director”) of that determination. The Director then informed the Court that he proposed to proceed with the charge of murder. In those circumstances the Court is required to conduct a special hearing as soon as practicable (s 19). That is what I have been engaged in this and last week.

5 The purpose of a special hearing is to ensure that, despite the accused’s unfitness to be tried, he is acquitted unless it can be proved beyond reasonable doubt that on the limited evidence available he committed the offence charged (s 19(2)). The hearing has been conducted as nearly as possible as if it were a trial of criminal proceedings (s 21(1)). The accused has been legally represented (s 21(2)). At the commencement of the hearing he was arraigned upon an indictment containing the single charge of murder. He did not enter a plea but was taken to have pleaded not guilty (s 21(3)(a)). He has raised defences that could properly have been raised at an ordinary trial of criminal proceedings (s 21(3)(c)) and he has exercised his right to give evidence (s 21(3)(d)).

6 The hearing has been before me without a jury. That is now the default position provided by s 21A of the Act. No election was made by either party for there to be a jury. The verdicts available to me are the verdicts that would have been available to a jury, if there was one, and my verdict will have, for all purposes, the same effects as a verdict of a jury (s 21B(1)). The available verdicts are:

(a) not guilty of the offence charged;
(b) not guilty on the ground of mental illness;
(c) that on the limited evidence available, the accused committed the offence charged; and
(d) that on the limited evidence available, the accused committed an offence available as an alternative to the offence charged (s 22(1)).

7 In this case there has been no suggestion that I should consider finding that the accused committed the alternative offence of manslaughter. The issues raised in the evidence are, first, whether the Crown has proved beyond reasonable doubt that the accused was the person who killed Ms Tregerthan, and, if so, whether the accused has proved on the balance of probabilities that he was mentally ill at the time so as not to be responsible, according to law, for his actions at the time of the killing.

8 The consequences of either of these verdicts are set out in the Act. If the verdict is that he committed the offence, then there will be a question of setting a “limiting term”. A limiting term is described as “the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence” (s 23(1)(b)).

9 If the verdict is not guilty on the ground of mental illness, the only realistic outcome is that he will be detained as a forensic patient and not released until such time as the Tribunal is satisfied of certain matters, including, and most importantly, that the safety any member of the public will not be seriously endangered by his release (s 43(a)).

10 If the verdict is not guilty, then the accused would be entitled to release from custody, provided there is no other reason for which he is being detained.

Circumstances surrounding the death of Ms Tregerthan

11 Ms Tregerthan lived in a house that she rented in Shirley Lane, Byron Bay. It was a 4 bedroom fibro house on a relatively large block of land. There were two boarders, Anthony Smith and Alice Starrs, who each had their own bedroom. There was a caravan and a bus parked on the property. Isla Tregerthan, the deceased’s daughter, lived in the caravan. A woman by the name of Daphne Duits lived in the bus. The evidence is generally to the effect that all of these people got along well. There is evidence that money to pay rent and household expenses was left in the kitchen, indicating that there was an element of trust amongst the occupants. There was also evidence that the house was usually accessed via the back door which was never locked.

12 The deceased was 43 years of age. She did not work and was receiving some kind of Centrelink benefits. The evidence before me is to the effect that she was a gentle person, quiet, considerate, caring and well-liked. She was of slight stature, 156 cm tall and weighing some 45 kg.

13 Isla Tregerthan’s evidence was that she saw her mother at around 10.30am on 30 August 2004 and she appeared to be well and in good spirits. Ms Tregerthan was at the property but mainly in her caravan for the next few hours aside from a short trip to a nearby service station to purchase cigarette papers. She did not see her mother alive again.

14 Alice Starrs left the house at about 8.15am. She had not seen any of the residents that morning. Her evidence includes an account of her movements up until she returned home in the early afternoon.

15 Anthony Smith left the house shortly before 9.00am. He accounted for various activities he attended to in the township in the ensuing hours. He returned home at about 12.30pm. He then made a number of phone calls in the lounge room and made lunch in the kitchen. He, apparently, did not see the deceased at all prior to what happened next.

16 At what must have been about 1.15pm, Isla Tregerthan took some of her old clothes into the house in order to store them in the sunroom. There she discovered her mother’s body near a door leading to the deceased’s bedroom. She attracted the attention of Mr Smith who was in one of the living areas of the house. She then rang triple 0 and was put through to an ambulance operator. She relayed instructions from that operator to Mr Smith who was attempting to help the deceased. Alice Starrs arrived home while this was happening. A gentleman by the name of Cesar Romero arrived a short time later. He was acquainted with the occupants of the house and happened to be riding past on his bicycle.

17 Ambulance records indicate that the emergency call was received at 1.20pm and ambulance officers arrived at the scene at 1.31pm. Police arrived at about the same time. It was immediately apparent that Ms Tregerthan was dead and that the case was one of homicide. The crime scene was secured. There is no issue that all appropriate investigative action was pursued.

18 An autopsy was carried out by Dr Paul Botterill at the Department of Forensic Medicine, Glebe on 1 September 2004. He found the direct cause of death to be stab wounds to the neck and torso, the most serious being one to the right back of the neck which caused damage to various structures including transection of the jugular vein and carotid artery. He also found evidence of recent blunt force trauma to the face, scalp and left anterior chest. That trauma included a deviation of the nose and three fractured ribs. Wounding to the left arm was consistent with there having been a struggle with the deceased attempting to protect herself from attack.

19 There was a large pool of blood on the floor immediately below the deceased’s head and upper torso. There were blood splatters upon objects in the immediate vicinity but none elsewhere in the sunroom. The most likely explanation for this is that the deceased went to the ground at an early stage of the attack and that she was prone on the floor when subjected to what must have been a frenzied attack with a knife of not insignificant size with her attacker positioned on top of her, thereby preventing the splatter of blood over a wider area.

20 As to the time of death, I have earlier mentioned that the deceased was last seen alive by her daughter at about 10.30am and her body was discovered at about 1.15pm. The pool of blood on the floor underneath her body was partially congealed, suggesting to ambulance officer Wayne Lewry that the body had been in that position for some time. A witness, Ms Rebecca Stibbard, who was working in premises over the road reported hearing three or four screams which she described as female and very loud. There was also a noise of something hitting something else in the middle of the screaming. She gave various estimates of time when she heard these sounds, ranging from 10.50am to 11.20am in her statement made on the day, to 10.30am to 10.45am in a statement made a month later. However, she also indicated in the latter statement that she believed the screams were about an hour and a half before the ambulance arrived. There is evidence from the ambulance officers that a lady, who must have been Ms Stibbard, told them that she had heard screaming some 90 minutes earlier. That would make it about midday. That is the extent of the evidence as to when the death occurred. The best that can be said is that it most likely happened sometime between about 10.30am and midday.

Some relevant legal propositions

21 It is necessary that I formally record some legal principles to which I must have regard: s 21B(2) of the Act (see also Fleming v R [1998] HCA 68; 197 CLR 250).

22 The Crown bears the onus of proving that it was an act of the accused that caused the death of Ms Tregerthan and that it was accompanied by an intention to kill her, an intention to inflict grievous bodily harm upon her, or a reckless indifference to human life. In the circumstances in which Ms Tregerthan’s death was caused, it has not been disputed that whoever was responsible harboured an intention to kill. The standard of proof which the Crown must meet is beyond reasonable doubt.

23 The Crown case that it was the accused who killed Ms Tregerthan is entirely circumstantial. Considerable care must be taken in drawing the inferences for which the Crown contends. In such a case the tribunal of fact must carefully examine inferences to ensure that they are the only rational inferences to draw in the circumstances: R v Peacock (1911) 13 CLR 619; Martin v Osborne (1936) 55 CLR 369.

24 The accused gave evidence. He did not have to. He would have been quite entitled not to give evidence by exercising his right to silence. The fact that he did give evidence does not alter the fact that the Crown bears the onus of proof beyond reasonable doubt.

25 When the accused was arrested on 15 January 2007 he declined to speak with the police. That was his right and no adverse inference can be drawn from the fact: s 89 Evidence Act 1995; Petty & Maiden v R [1991] HCA 34; 173 CLR 95.

26 The defence case is that I would not be satisfied to the requisite standard that the accused was the killer but it is argued in the alternative that if I was, then I would also be satisfied that the accused was mentally ill at the relevant time and so I should return the special verdict provided by s 38 of the Act that he is not guilty by reason of mental illness. This requires a consideration as to whether, at the time of the killing, the accused was labouring under a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing, or that if he did know, that he did not know what he was doing was wrong: R v M’Naghten (1843) 8 ER 718; R v Porter [1933] HCA 1; 55 CLR 182. The onus of proof in respect of this issue is upon the accused and the standard of proof is the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659.

Was the accused the killer?

27 I propose to deal in turn with each of the circumstantial planks in the Crown case, leaving the most significant, the DNA evidence, until last.

The accused’s presence in Byron Bay on the day of the murder

28 The Crown tendered a record of transactions upon the accused’s account with the Commonwealth Bank of Australia (Exhibit C). An automatic teller machine withdrawal on 30 August 2004 establishes that he was in Byron Bay on the day of the murder. This has not been disputed.

The accused’s attitude towards Ms Tregerthan prior to her death

29 Ms Cynthia Scopel gave evidence that tended to suggest some antipathy or resentment by the accused towards Ms Tregerthan. Her evidence was to the effect that about two weeks before the murder the accused approached her in Shirley Lane and said, "I know, I know, I know what you do". She said that he may have said, "I know what you do with your eyes". Ms Scopel implied that this was said in an intimidating fashion such that Ms Scopel felt the need to physically intervene, causing the accused to leave.

30 There was an issue about the reliability of Ms Scopel’s evidence, it being submitted by Mr Bruce SC on behalf of the accused that there was a degree of interpretation in her evidence and that I should not accept that the account she gave of the words spoken by the accused was a reliable one.

31 The accused, however, confirmed in his evidence that he did confront Ms Tregerthan in a chance meeting in the street. He could not recall the exact words spoken but claimed that it had something to do with his perception that she was practising “identity theft” upon him and his friend, Matt. He wanted to bring this problem to her attention but he was perplexed about how to raise the subject and failed in his attempt to do so.

32 Having regard to this, there seems to be no real basis for not accepting Ms Scopel’s evidence that such an approach was made and that it was a product of resentment by the accused of Ms Tregerthan. In cross-examination he agreed that he may have said something like, “I know what you are doing” or “I know what you are up to”. He denied making reference to her eyes. He claimed that he was not aggressive but said that he was “upset”.

33 Given this evidence from the accused, the actual words that he uttered is not a matter that need be dwelt upon. I am satisfied that prior to the murder the accused did have an attitude of resentment or antipathy towards Ms Tregerthan.

Did the accused subsequently speak in terms that indicated knowledge or involvement in Ms Tregerthan’s death?

34 Mr Peter Hardwick gave evidence that he had known the accused since the 1980’s. He said that on a day sometime between late August and November, but probably in September 2004, he came across the accused standing by the side of a road and offered him a lift. The offer was accepted and he drove the accused to the property where he was then apparently living at Mt Burrell, north of Nimbin. It was a journey of some 20 to 25 kilometres. There was general conversation along the way before, “he turned around and said he didn’t think it was any big deal to kill somebody, something along those lines”. Mr Hardwick said that he asked the accused what he meant. He said that contrary to the accused’s usual confident demeanour he appeared flustered or agitated and replied, “You heard what I said”. Mr Hardwick asked, “Do you mean something like euthanasia or something along those lines?” The accused simply shrugged his shoulders. Mr Hardwick did not contact the police about this conversation until about two and half years later. He added that it had come back to him after making his statement in early 2007 that the accused had also said that he knew someone who had been killed, who had died, or had been murdered.

35 The accused did not dispute that there was an occasion such as Mr Hardwick had described. As for the conversation, however, he claimed that whilst he could not recall the exact words spoken, he said that he would have been speaking philosophically, based upon his interest in Buddhism, saying something like it is a fact of life that people kill other people, such as soldiers in war. He denied speaking in the context of his own behaviour or attitude.

36 Given that Mr Hardwick did not make a statement to police about this conversation until after such a long time had elapsed, and that he was less than precise about the exact words spoken by the accused, I am not confident that his account is accurate and reliable. I will put this evidence aside.

Was the accused “casing” houses in the vicinity of the deceased’s house on the day prior to the murder?

37 Mr Damien Disson gave evidence that on 29 August 2004 at about 12.30pm he saw a man of similar description to the accused acting suspiciously and looking over fences in Shirley Lane. On being pressed about this he conceded that he had seen the man standing in the lane looking over a single fence 100 to 120 metres away from Ms Tregerthan’s house and that the man left the area as he approached. The Crown Prosecutor opened with reference to this evidence as supporting a proposition, at least in Mr Disson’s mind, that the accused had been “casing” houses in the area.

38 The accused did not dispute that he walked along Shirley Lane on occasion when he was walking into the town of Byron Bay from his campsite on the outskirts of town. He conceded that he looked at houses and gardens along the way.

39 This evidence does not support the proposition for which the Crown contended. The “casing” theory had no merit in any event as the accused was well familiar with the houses in Shirley Lane and, particularly, with Ms Tregerthan’s house. He said in his evidence that he had been to her house on a number of occasions when a friend, Matt, lived in the bus on the property. He claimed to have also attended a party there on one occasion.

DNA evidence

40 The major component of the Crown case is the DNA evidence. DNA was recovered from fingernails from both the deceased's left and right hands and from a blood-stained pillow case found in the vicinity of her body.

41 On one fingernail from the left hand there was found to be DNA from two contributors. The DNA of the major contributor was consistent with being the deceased's and the DNA of the minor contributor was consistent with being the accused's. The DNA profile of the minor contributor was expected to be found in 1 in 100 million individuals in the general population.

42 In respect of a fingernail from the right hand there was DNA which was also from two contributors. The DNA of the major contributor was consistent with being the deceased's and the DNA of the minor contributor consistent with being the accused's. The DNA profile of the minor contributor was expected to be found in 1 in 86,000 individuals of the general population.

43 A stain on a pillow case was also the source of DNA from two contributors, the major contributor's DNA profile being consistent with that of the deceased and the profile of the minor contributor consistent with that of the accused. The DNA profile of the minor contributor was expected to be found in 1 in 1.7 billion individuals in the general population.

44 There was no challenge to any of this evidence. The argument advanced on behalf of the accused proceeded upon an acceptance that the DNA consistent with being that of the accused’s was in fact his. Rather, it was argued that there were alternative explanations for how his DNA came to be where it was found.

45 Ms Sharon Neville, forensic biologist, gave evidence that the staining of the pillowcase appeared to be blood, although she could not say with certainty whether it was all blood. The high levels of DNA recovered indicated that it was from something that was a rich source, such as blood or saliva and unlikely to be from a source such as skin cells from somebody who had come in contact with the pillowcase. She concluded that it was more likely to be from a mixture of blood from two individuals, or perhaps a mixture of blood and saliva, although for the latter there would need to be a “reasonable dribble of saliva” that found its way onto a relatively small area of the pillowcase. She preferred that both contributions were blood.

46 The pillowcase was found in a position which would have been out of reach to the deceased in the position on the floor in the sunroom where her body was found. I have earlier indicated that the physical evidence strongly supports the proposition that the stabbing that caused her death occurred when she was in that position. Ms Neville said that the appearance of the stain indicated that it was made by direct contact rather than from a splashed distribution of staining. For these reasons, the Crown Prosecutor submitted that it was unlikely that the staining was a result of contact by the deceased with the pillowcase and more likely a result of contact by the murderer, perhaps touching it immediately the stabbing had concluded. There is a logical attraction to that submission.

47 It is appropriate at this point to refer to the accused’s evidence. There was cross-examination of Ms Neville directed to establishing a proposition that it was possible that the DNA of the accused came to be upon the fingernails and the pillowcase at sometime earlier than when she was killed. She generally agreed. The accused’s evidence was to the effect that his DNA came to be where it was found as a result of an assault by him upon Ms Tregerthan that occurred a relatively short time before someone else stabbed her.

48 In a statement of instructions that were provided by the accused to his solicitor in October 2007 (Exhibit 1) he said that as a result of being upset with Ms Tregerthan (for reasons which I will outline later) he went to her house and punched her “a couple of times”. He said this occurred somewhere inside the house, they were having a fight, he punched her in the face once or twice and that when he left she was lying down. He denied using a knife. He said that when he left, “she didn’t really have blood on her but I can’t remember any more details because it was so long ago”.

49 In his evidence before me he maintained that he had punched Ms Tregerthan but had not used a knife. He did not have a knife with him. The Crown Prosecutor pressed him as to how his DNA may have come to be on her fingernails. He suggested that Ms Tregerthan had tried to protect herself from his punches, although he could not say exactly what she did in this respect. In re-examination he claimed, “she probably would have been holding onto my arms or hands”.

50 The accused could offer nothing to explain the presence of his DNA upon the pillowcase except to say, “I would think it came there as a result of the fight”. He also suggested, “I could have been bleeding as a result of the fight. If she dug her fingernails into my arms it’s possible there could have been blood”.

51 The accused did not nominate a date for the occasion when he went to Ms Tregerthan’s house and “punched” her. He was not prepared to concede that it was necessarily 30 August 2004. However, that is the only sensible conclusion to reach. There is no suggestion that Ms Tregerthan complained to anyone, as one would expect that she would, of somebody coming to her house and punching her to the ground sometime before 30 August 2004.

52 The accused’s version would have it that he engaged in a fight that resulted in Ms Tregerthan going to the ground. He then left her there and somebody else came in and stabbed her to death. DNA consistent with his was found. No DNA of some other unidentified person was found. I accept the submission of the Crown Prosecutor that the accused’s version is incredible.

Conclusion

53 I am satisfied beyond reasonable doubt that it was the accused who stabbed Ms Tregerthan to death and that by doing so he intended to kill her.

The defence of mental illness

The accused’s issue with Ms Tregerthan

54 In the instructions provided by the accused to his solicitor he said that he had known the deceased for about a year. He had a friend, Matt, who lived for a time in the caravan on her property and he saw the deceased on occasions when he was visiting Matt. Matt moved out about two to three months before her death.

55 He described the deceased as a “stalker and intimidator” of both himself and Matt. He said:

Linda took for granted the living of other people’s sexuality – by that I mean she was a woman but she pretended to be a man by her behaviour.

Linda was psychically stalking me for about 4 – 6 months by pretending to be me – by that I mean she behaved like me. She thought herself that (sic). I saw her fairly often on the street whilst she was walking her dog. She would intimidate me by treating me like a woman. She was mostly just thinking that but on one occasion whilst she was psychically stalking me she actually physically stalked me by followed me for about 400 metres.

Towards the end she pretended to be a rapist. I knew this because of the way she was treating me, like a rape victim. She never talked to me like I was a rape victim, she just behaved towards me like that, by thinking it.

...

During these months that Linda was psychically stalking me she was interfering with my life to the degree that I could not live my life normally. I didn’t like being mistreated at all and I most definitely didn’t like being treated like a rape victim. It made me really upset. I didn’t like the woman at all and I would try to get out of her way.

56 In his oral evidence he said that he had perhaps gone a little too far in those instructions and he referred in particular to the allegation that the deceased pretended to be a rapist and treated him like he was a rape victim. He maintained that she had been stalking him. He also said that he now preferred the term “practising identity theft” to “psychically stalking”.

57 By “practising identity theft” he meant that she pretended to be him to other people. He did not know how she did it but said that she, “just like(d) seeing herself as me”. When pressed, he added:

By seeing herself as being me, like identity theft. It’s a normal sort of behaviour, many people do that. It’s a computer problem, like people just take on somebody else’s identity and pretending to be that person.

58 He said he was talking in a psychological sense rather than a physical sense, “mostly”.

59 He was asked why was she doing it, what benefit did it have for her, and he replied:

Well many women like pretending to be men, to be tomboys. That’s not unusual.

60 The accused described his relationship with the deceased as, “half friend, half antagonist”. Other than when she was practising identity theft, he did not mind her.

61 I have earlier set out the confrontation that the accused had with the deceased that was witnessed by Ms Cynthia Scopel about a fortnight before the death. The accused said that his purpose in confronting the deceased was to ask her to desist in her behaviour but he did not really know how to broach the subject.

62 In explaining why he went around to Ms Tregerthan’s house on what must have been 30 August 2004 he said:

I had to do something about this problem I’ve had with her and I wasn’t quite sure what to do about it. I like my identity very much, I don’t like somebody else to be me, everyone would find that offensive. I couldn’t go to the police, I didn’t know what to do about it and that’s why one day I chose to talk to her about it and that’s when it came to an assault.

63 He left his campsite on the outskirts of town and walked to Ms Tregerthan’s house. When he arrived he went to the back door and either knocked or called out to her. He described what followed:

Yeah, I did not punch her straight away. I first had a talk with her, like we've had. We talked some words, but I don't know exactly what I had said or how I was expressing myself, but I would have been complaining to her about her behaviour, but I don't know exactly how I did that or what words I did use. And she did not admit to having done anything wrong, or be willing to change her behaviour and that's when I punched her and she just wasn't willing to address that issue at all.

Psychiatric evaluation of the accused

64 The accused had no known contact with any mental health professional or institution prior to 30 August 2004. Nobody, so far as it is known, had made any assessment of his mental health prior to that date. The first evaluation that was made was when he was seen by Professor David Greenberg on 9 December 2004. He was subsequently seen, and attempts made to assess him, on a number of occasions. It is important to observe that on a considerable number of these occasions he refused to co-operate.

65 When Professor Greenberg first saw the accused he was in custody on two charges of assault and one of stealing in a dwelling. A magistrate had requested a psychiatric evaluation. The accused told Professor Greenberg that he did not wish to co-operate with a psychiatric assessment but he did participate in an interview. One of the assault charges concerned an incident with a Centrelink employee in Byron Bay on 7 September 2004, just over a week after the killing of Ms Tregerthan. Professor Greenberg’s report includes the following:

When I questioned him about his conflict with the customer service officer at Centrelink, he stated that this man was stalking him and set him up for sex and was a sadist. He claimed this man perceived him as a sexual organ and was inflicting damage on him. He claimed this man was “systematising and victimising me. He took my money I was entitled to and was breaking the law by breaking the privacy act” by speaking to his wife about Mr Tantra. He claims, “this man set me up as a sex object as well as a financial victim” and therefore was stalking me.

66 Professor Greenberg made an axis I diagnosis of “paranoid psychosis (query paranoid schizophrenia; query delusional disorder; query organic delusional disorder)”. He also queried a diagnosis of cannabis abuse. There was an axis II diagnosis of “query personality difficulties with paranoid traits (need further collateral information)”.

67 Professor Greenberg felt that there were “reasonable grounds to believe that Mr Tantra is suffering from a mental illness as defined within the meaning of s 9 of the NSW Mental Health Act 1990.” He was satisfied on the balance of probabilities that it was likely the accused suffered from a paranoid psychosis and presented with systematised paranoid delusions (i.e. false beliefs).

68 The accused was seen shortly after, on 14 December 2004, by Dr White, psychiatrist, who recorded that he was “very likely to be psychotic, but no obvious issues of risk to self or others”.

69 On 5 January 2005 the accused denied to Dr Jeremy O’Dea, psychiatrist, that he was experiencing symptoms of mental illness, although Dr O’Dea noted a history of paranoia which he felt was suggestive of paranoid psychosis.

70 A registered nurse, Ms W Law, is reported to have stated on 11 March 2005 that the accused had a paranoid psychotic illness and required hospitalisation and further treatment.

71 Dr Peter O’Brien was told by the accused in late 2006 that he believed that he had “psychic powers”. Dr O’Brien concluded that he was mentally ill.

72 Professor Greenberg saw the accused for a second time on 21 November 2006. He reported that the accused was dismissive of his introductory discussion and refused to participate in a psychiatric assessment. He also denied having a mental illness. Professor Greenberg was seeing the accused in response to a request by a magistrate for an assessment. The accused told him, “the magistrate is an idiot, I am not mentally ill”.

73 Dr John Kasinathan, psychiatrist, saw the accused on 24 November 2006 at Grafton Correctional Centre. He made an axis I diagnosis of “paranoid delusional disorder (with a differential diagnosis of paranoid schizophrenia, schizoaffective)” and an axis II diagnosis of “schizotypal/paranoid personality traits”.

74 It will be recalled that the accused was charged with the murder of Ms Tregerthan on 15 January 2007.

75 Mr Coleman O’Driscoll, a clinical nurse consultant provided a report under the supervision of Dr Anthony Samuels, senior forensic psychiatrist and clinical director of Justice Health Services, on 6 February 2007 in which he related an attempt to interview the accused on 1 February 2007. The accused did not co-operate and claimed that he was not mentally ill.

76 Mr O’Driscoll again sought to interview the accused on 5 March 2007 and once again there was a refusal to co-operate. Mr O’Driscoll reported that from his observations, and his review of previous reports by Professor Greenberg, he was of the view that the accused was likely suffering from a serious mental illness requiring on-going treatment with anti-psychotic medication.

77 The accused was admitted to D Ward, the acute psychiatric ward within Long Bay Prison Hospital, on 26 November 2007. He was diagnosed to have a schizophrenic illness on the basis of the presence of delusional beliefs.

78 Dr Olav Nielssen, psychiatrist, saw the accused on 7 August 2008. He noted that he was not forthcoming about a number of issues (his instructions of 12 October 2007, the details of the alleged offence and some aspects of his personal history). He denied any mental illness and said that he was taking medication although not by choice. Dr Nielssen made diagnoses of “chronic schizophrenia, paranoid type” and “cannabis abuse disorder, in remission”. The following from his report is pertinent:

If it is established that Mr Tantra killed Ms Tregerthan, I believe that on the balance of probabilities he did so during the acute phase of a chronic schizophrenic illness in response to symptoms of that illness. Hence he had a disease of the mind, in the form of a chronic mental illness that is likely to have been present in some form for many years prior to the offence, but for which he had not received treatment. The illness gave rise to a defect of reason, in the form of the belief that Ms Tregerthan was “psychically stalking” him and treating him as a “rape victim.

The effect of the symptoms deprived him of the capacity to recognise that his actions in assaulting and killing Ms Tregerthan were morally wrong, as he held the delusional belief that he had been wronged by Ms Tregerthan and many others, and deprived him of the capacity to consider the consequences of his actions with calmness and composure, as demonstrated by his irrational assault on a Centrelink Officer for similar reasons a week later. Hence I believe that on the balance of probabilities he has the defence of mental illness open to him.

79 Dr Stephen Allnutt, forensic psychiatrist, saw the accused on 13 December 2008 in relation to an issue as to his fitness to be tried. He reported that there was a reluctance to engage on a number of issues. He concluded:

Having regard to the information provided to me, there are grounds for significant concern that the Defendant suffers from a major mental illness. ... A paranoid (sic - word missing) of a psychotic nature; but requires further assessment for clarification.

80 Professor Greenberg was engaged by the Crown to review the issue of the availability to the accused of a mental illness defence and to comment upon the report of Dr Nielssen. Professor Greenberg said that he concurred with Dr Nielssen about the accused having a severe psychotic mental illness.

81 Professor Greenberg noted that the accused had refused to discuss with Dr Nielssen the statement of instructions he had provided on 12 October 2007, denied experiencing any psychotic symptoms, denied having any mental illness, and denied requiring any psychiatric treatment. Thus, he noted similarities in his own experience with the accused, in 2004 and 2006, with a clinical (paranoid) presentation with grossly impaired insight into his mental state and mental illness.

82 Professor Greenberg referred to his assessment in December 2004 that the accused was likely suffering from paranoid delusions because of his description of the Centrelink incident. He concurred with Dr Nielssen’s view that there are similar paranoid themes (symptoms) in the account he had provided of being victimised and persecuted by Ms Tregerthan. He reported that these paranoid symptoms seemed to be flowing from the accused’s abnormal state of mind, namely his paranoid psychosis.

83 A further report was sought from Professor Greenberg. In this report, of 30 April 2010, he said that it was likely that the accused was psychotic during the time period of the alleged offence on 30 August 2004. He continued:

Paranoid psychotic illness of this severity and nature is not transient and without adequate psychiatric treatment, these psychotic symptoms can persist for months or years.

84 Bearing in mind that he had not had the advantage of assessing the accused in person, Professor Greenberg offered that if it was found that the accused had assaulted Ms Tregerthan and that the version of events in his statement of 12 October 2007 is accepted by the Court, “then I would probably concur with Dr Nielssen that he likely was suffering for (sic – from) a defect of reason at the time period surrounding the (offence) which would have significantly impaired his insight and judgment (moral wrongfulness of his actions)”.

Should the psychiatric evidence be accepted?

85 In assessing the opinions expressed by psychiatrists it is important to bear in mind the extent to which they are reliant upon the history provided. I am informed by experience that psychiatrists often proceed upon an acceptance of the history, leaving it to the Court to consider whether that history is credible. In a case such as this, there is an obvious advantage to be secured by the accused if he is to be found not guilty upon the grounds of mental illness. If he was to fail in securing that outcome he would face the prospect of a lengthy term of imprisonment. Success in achieving that outcome offers some prospect, albeit without certainty, of being detained for a shorter period of time.

86 I am satisfied that the opinions of the psychiatrists, Dr Nielssen and Professor Greenberg, should be accepted for a number of reasons.

87 First, the accused was determined to be mentally ill by a number of psychiatrists prior to being charged with the murder of Ms Tregerthan, that is, prior to a time when it might have become obvious to him that there was an advantage in feigning mental illness.

88 Secondly, none of the expert assessments before me include any suggestion that the accused is feigning symptoms or is malingering.

89 Thirdly, the approach made by the accused to Ms Tregerthan a fortnight before she was killed tends to support the proposition that he held a delusional belief that she was doing something toward him that he found to be, at least, upsetting. This is a matter that comes not only from the accused but has been independently verified by the evidence of Ms Scopel.

90 Fourthly, the accused has consistently and stridently maintained that he is not mentally ill.

91 Fifthly, far from co-operating with psychiatric evaluations in an endeavour to secure what might be seen to be a favourable outcome, the accused has on quite a number of occasions refused to co-operate.

92 These features strongly support a conclusion that the accused did in fact have the symptoms which have led eminent psychiatrists to conclude that at, around, and since the time of the murder of Ms Tregerthan he was the subject of a serious mental illness.

Conclusion as to mental illness defence

93 The evidence is to the effect that the accused was suffering from a defect of reason from a disease of the mind, that being a paranoid psychotic illness, at the time he caused the death of Ms Tregerthan. There is overwhelming evidence to this effect and nothing to the contrary.

94 I am satisfied that this did not prevent him from appreciating the nature and quality of the acts he was carrying out. There is no reason to have any doubt that he appreciated that he was attacking Ms Tregerthan and that by stabbing her so ferociously and repeatedly he was causing her death. I have earlier indicated that I am satisfied beyond reasonable doubt that it was his intention to kill her.

95 However, the second aspect of the mental illness defence is whether he knew what he was doing was wrong. I accept the evidence of Dr Nielssen, supported by that of Professor Greenberg, that he did not.

Verdict

96 I find the accused to be not guilty on the ground of mental illness.

Orders

97 I order that Vita Tantra be detained at the Metropolitan Remand and Reception Centre or at such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law.

I direct that the Registrar notify the Minister of Health of this order.

I direct that the Registrar notify the Mental Health Review Tribunal of this order and provide to the Tribunal the following documentation:

(a) a copy of these reasons for verdict and orders,

(b) a transcript of this special hearing, and

(c) a copy of each of the documents in Exhibits AF to AL and Exhibits 1 to 3.

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