R v Townsend

[2016] NSWSC 218

Supreme Court

New South Wales

Medium Neutral Citation:

R v Townsend [2016] NSWSC 218

Hearing dates:

9, 10 March 2016

Decision date:

10 March 2016

Jurisdiction:

Common Law

Before:

Adams J

Decision:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) enter a special verdict of not guilty by virtue of mental illness.

 

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) order Mr Townsend be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of the law.

 I recommend the transfer of the Mr Townsend to the Forensic Hospital, Malabar as soon as practicable.

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – agreed facts – defence of mental illness – accused suffers from schizophrenia – special verdict of not guilty by virtue of mental illness

Legislation Cited:

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 38, 39

Cases Cited:

The King v Porter (1936) 55 CLR 182

Category:

Principal judgment

Parties:

Regina (Crown)
Brian Francis Townsend (Accused)

Representation:

Counsel:
L Shaw (Crown)
I Nash (Accused)

  Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2014/329958

Judgment

Introduction

1. On 9 March 2016 the accused, Brian Francis Townsend was arraigned in this Court on an indictment charging him with the murder of Mr George Cornell on 9 November 2014. To that charge he pleaded not guilty. In substance, although he admits that he killed Mr Cornell, intending to do so, the outstanding question is whether, at the time, he was mentally ill so as not to be responsible according to law for his actions. If so, then the appropriate verdict is a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) of “not guilty by virtue of mental illness”. Such a verdict, where found, empowers the Court to order that the person be detained until released by due process of law or to be released either conditionally or otherwise. An order for release cannot be made unless the Court is satisfied, in substance, that the safety of the person or the public will not be seriously endangered by the person’s release.

2. The defence is made out if the Court is satisfied, more likely than not, that at the time of the offence he was suffering from a mental illness such that he did not know that what he was doing was wrong. The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. This has been applied in such trials in this State ever since. Speaking of the accused in that trial, His Honour said (at 189-90):

“... 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.”

The facts

3. The facts in this case are not in dispute. Indeed, an agreed statement of facts has been tendered with the concurrence of both the prosecution and defence which deals with the circumstances of Mr Cornell’s tragic death.

4. At the time, the accused and the deceased were living in a block of units in Dubbo. Their units were on separate floors with access to each floor by stairs. There is a concrete landing area outside the accused’s unit and that is where the offence is alleged to have been committed. The two men had been friends for about 18 months, often drinking alcohol together, which sometimes led to arguments between them. In 2013 a personal violence order was issued against the accused in favour of Mr Cornell following an alleged assault upon him by the accused. That order was in force at the time Mr Cornell was killed, in terms that the accused be of good behaviour towards Mr Cornell, but it did not prohibit contact with him.

5. On Friday 7 November 2014 the accused and Mr Cornell commenced drinking alcohol, at first separately in their own units. During the afternoon they met in the accused’s unit and continued drinking on the rear veranda. As it happened, at 5.15pm on that evening a support worker from Mission Australia went to the accused’s unit and spoke to him through the screen door. He did not notice anything out of the ordinary. The accused said he was going to watch the cricket that night and that George (George Cornell) had cooked him seafood.

6. At about 11.30pm police were called to the unit complex in relation to a male that had been assaulted. The initial 000 call had come from the accused, who said that someone else had assaulted Mr Cornell. On arrival police noticed him standing near Mr Cornell, who was lying unconscious on the concrete landing outside the unit. He was covered in blood and clearly very seriously injured. The accused told police that he didn't know what had happened. An ambulance arrived soon after and Mr Cornell was taken to Dubbo Base Hospital.

7. After the ambulance left, the accused, who was obviously affected by alcohol, told police that he punched and stomped on Mr Cornell’s head up to 30 times. He was arrested and taken to Dubbo Police Station.

8. At the hospital Mr Cornell was diagnosed with multiple fractures to his skull. The accused was interviewed by police. His account of what happened is accepted as truthful. He told police, amongst other things –

“All I can remember is me and George standing outside me unit, ah getting into a big argument. And me started punching into him and him screaming out for help. And then me, I remember actually I do remember stomping on his head. And the voices in me head were just saying kill him, kill him. I was hearing voices at the time. And I was, they were just saying kill him, kill him, kill him. And I, I just kept stomping and stomping and stomping. And I don’t know what made me stop but something made me stop. And then when I did seen him in the pool of blood I rang the um, ambulance”.

9. Shortly after 10.30pm a neighbour had heard a man yell out; “No, No, No”. It was very loud and sounded as if someone was terribly frightened. Another neighbour heard, at about 11 pm a male’s voice yelling out; “Shut up. I told you to shut up”. It was very loud and I heard it in my unit.” Neither could tell where the voice had come from.

10. The accused had bruises and scratches on his knuckles, and his bare feet and clothing were blood stained with what DNA tests confirmed was Mr Cornell’s blood. Mr Cornell was pronounced dead in the early hours of 9 November. An autopsy found that death was caused by head injuries caused by blunt force trauma. There are details in the autopsy report about the extent of those injuries but it is not necessary to refer to them except to note that they confirmed multiple blows.

Mental health of the accused

11. The accused was first diagnosed as suffering from schizophrenia in 2003. He has extensive medical records detailing his diagnosis and treatment. Significantly, they include brain damage from a fall from the back of a moving utility when he was 21. He had earlier symptoms of psychosis, but there is little doubt that the brain injury contributed to his later bouts and ultimate schizophrenia. He has had numerous admissions to hospital for his mental symptoms, when he has self-harmed in significant ways and exhibited some paranoia. This history and his account of what he was experiencing at the time he killed Mr Cornell provides, together with their own clinical examinations, the material upon which the conclusions of the two psychiatrists, Dr Richard Furst and Dr Olav Nielssen are based.

12. Dr Furst’s report includes a summary of the Accused’s lengthy history of mental health issues and treatment. Dr Furst considered that the accused “probably has enough cognitive capacity to follow what is said in court, notwithstanding his schizophrenic illness and some residual psychotic symptoms. His psychotic symptoms have improved somewhat over recent months.” He was therefore fit to be tried.

13. As to the question of mental illness, Dr Furst’s opinion was:

“Although Mr Townsend was no doubt intoxicated at the time of the offence, he was also suffering from a defect of reason in the form of command auditory hallucinations telling him to kill his friend George. Although he was aware of his actions, he was probably unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. In my opinion he has the mental illness defence available to him.”

14. Dr Olav Nielssen stated:

“I believe Mr Townsend is fit for trial as he understands the charges, the evidence against him, the general nature of the proceedings and has some knowledge of the procedure followed in court. He was assessed to be able to follow any proceedings, understand legal advice and provide reliable instructions to his legal representative.”

15. So far as his mental illness is concerned, Dr Nielssen said:

“At the time of the offence, Mr Townsend reported an abnormality of mind in the form of commanding hallucinations of voices, arising from an underlying condition in the form of his chronic mental illness or neurological (meaning brain) injury. His symptoms affected his perception of events and his capacity to self-control. Mr Townsend’s behaviour was affected by self-induced intoxication with a very large quantity of alcohol, although his alcohol use was on the background of an underlying neurological injury.”

He went on to say:

“I concur with the opinion of Dr Furst regarding the availability of the defence of mental illness for this offence. Mr Townsend has a disease of the mind, in the form of either a chronic schizophrenic illness or hallucinations arising from an underlying brain injury. At the time of the offence he was affected by a defect of reason in the form of commanding hallucinations he felt compelled to obey. From his account of his behaviour it is clear that he was aware of the physical nature and quality of his actions. However, I believe at the time of the offence itself, Mr Townsend was unable to appreciate the moral wrongfulness of his actions as he reported he was unable to resist the voices he heard immediately before the offence or control his actions in the presence of that symptom.

16. I should point out that hallucinatory voices are typical of schizophrenic illness and some other brain injuries. Regrettably, in a medical sense, there is nothing surprising or unusual about the commands that Mr Townsend heard, the tragedy is that they commanded extreme violence in circumstances where he was, because of his illness I am satisfied, unable to resist what was being told to him.”

Special verdict

17. I am satisfied that it is appropriate to enter a special verdict of not guilty by reason of mental illness.

18. Although schizophrenia can, in many cases, be controlled by medications of various kinds and, indeed, the accused’s symptoms were to some degree moderated by his medication, he is medication resistant and cannot be released at large because it must be concluded that, if this were to happen, he would be not only a danger to members of the public but also to himself. Whether he can ultimately be released or placed in some less restrictive form of secure setting will be a matter for the Mental Health Review Tribunal, whose task it will be to monitor his progress.

19. It is necessary to make an order for the detention of the accused under s 39 of the Mental Health (Forensic Provisions) Act 1990.

20. I order that Mr Townsend be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of the law. I recommend the transfer of Mr Townsend to the Forensic Hospital, Malabar as soon as practicable.

21. I express my deepest sympathy to the family, relatives, and friends of George Cornell in their loss.

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Decision last updated: 11 March 2016