R v Whittall

[2017] NSWSC 1697

Supreme Court

New South Wales

Medium Neutral Citation:	R v Whittall [2017] NSWSC 1697
Hearing dates:	17-18 July 2017
Date of orders:	18 July 2017
Decision date:	18 July 2017
Jurisdiction:	Common Law - Criminal
Before:	Mathews AJ
Decision:	Special verdict of not guilty of murder entered by reason of mental illness
Catchwords:	CRIMINAL LAW – judge alone trial –defence of mental illness – special verdict – not guilty by reason of mental illness
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Hawkins v the Queen (1994) 179 CLR 500 R v McNaghten (1843) 8 ER 718 R v Presser [1958] VR 45 The King v Porter (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Regina Lainie Elizabeth Whittall
Representation:	Counsel: Mr K McKay (Crown) Mr I Todd (Accused)   Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid Commission NSW
File Number(s):	2014/201499
Publication restriction:	No

Judgment

Background

1. HER HONOUR: On 17 July 2017 Lainie Elizabeth Whittall was charged by way of indictment with one charge, namely that on 7 July 2014 she murdered Kevin James Fawcett. The accused (as I shall call her in these reasons) pleaded not guilty. This was clearly intended to be a plea of not guilty by reason of mental illness, and has been taken as such by all concerned.

2. An order had previously been made, by consent, that the trial be conducted by judge alone. As frequently happens in these cases, the trial itself was very short. A number of documents were tendered by the Crown and the defence, all of them by consent. These included psychiatric reports obtained by both parties. In addition, the forensic psychiatrist Dr Jeremy O'Dea gave evidence on behalf of the Crown. He was not cross-examined by Mr Todd, who appeared for the accused.

3. Both parties were in agreement that the appropriate verdict in all the circumstances was the special verdict of not guilty by reason of mental illness. Having previously had an opportunity to read the relevant documents, including the psychiatric reports, I was also firmly of the view that this was the only appropriate verdict. Accordingly, I formally entered a verdict that the accused was not guilty by reason of mental illness and made a number of ancillary orders, all of them by consent. I said that I would deliver the reasons for my verdict at a later date.

4. These, then, are my reasons for finding that the accused is not guilty by reason of mental illness.

Circumstances of the Killing

5. The accused and the deceased had been in a de-facto relationship for about eight months before 1 July 2014. At that time they were living in a house at Blackwall together with the accused's father. On the day before the killing the accused had seen messages on the deceased's phone which she interpreted as indicating that the deceased had resumed a sexual relationship with a woman with whom he had had a de-facto relationship back in 1995. That night she started sending abusive sms and voice messages to the woman concerned. The deceased had previously left the house, saying that he was going to his parent's home at Ettalong Beach. The accused did not believe him, and she set out to go there herself in order to check on him. She was going to drive her father's car, but her son Louis would not let her, and said that he would drive her himself. As we now know, she had previously attached a steak knife to her wrist with duct tape. She was also wearing a large black dressing gown, presumably for the purpose of concealing the knife. Louis later described her as being particularly agitated that night. When they arrived at the deceased's parents' home they saw the deceased's car parked in its usual place there. The accused jumped out of the car and ran towards the house. By this time it was after midnight on the morning of Monday 7 July.

6. In the meantime, at about midnight, the deceased had arrived at his parents' home, and had gone to his bedroom at the front of the house where he was watching television. His mother was in the lounge room, also watching television, when the accused arrived at the front door. The deceased went and unlocked the door and his mother called out to the accused to come in. She, the accused, pulled the door open and lunged towards the deceased. Using the knife attached to her wrist, she stabbed him in the stomach area. He called out “she stabbed me”, before falling to the floor. The accused ran out of the house, dropping the dressing gown in the doorway as she did so. She jumped into the car with Louis, and ordered him to “lock the doors and go, go, go.” As they drove over the Rip Bridge she threw the knife into the water. She told Louis to drop her at a friend's home, which he did.

7. In the meantime, the deceased's mother had dialled 000, and had received instructions about temporary remedial action pending the arrival of paramedics. Ambulance officers and police arrived at the scene shortly afterwards, and the deceased was taken to Gosford Hospital where he underwent emergency surgery. However at about 10.30 that morning his life support was discontinued, and he died shortly afterwards.

8. A subsequent post mortem examination showed that the stab wound had passed through the abdominal cavity and into the third lumbar vertebra, causing injuries to multiple organs and resulting in uncontrollable bleeding. Despite surgical intervention and blood transfusions the deceased's condition had deteriorated until his death became inevitable.

9. The accused enlisted the assistance of friends in evading detection for the rest of that day. On the morning of Tuesday 8 July she returned to her home where she was apprehended by the police. When told that she was under arrest for murder, she expressed surprise that the deceased had died, and said “I didn't mean to kill him.” She also said that she was proposing to hand herself in that day. She has been in custody ever since.

Background of the Accused

10. The following information is largely derived from the psychiatric reports that were tendered at the hearing.

11. Ms Whittall was born on 7 February 1972 and was thus aged 42 at the time of the offence. Her family lived on the central coast of NSW and she was the second of three children. On all accounts she had a difficult childhood. Her father suffered from depression and anxiety, and her mother was a remote person who used often to strike her with a jug cord. She went to three different high schools, and was asked to leave two of them because of her disruptive behaviour. She left school at the age of 14 years and nine months, after which she took on various forms of unskilled employment. She never married, but she had two major partners in her life. The first was the father of her son, Louis, with whom she was in a relationship for about eight years during her twenties. She suffered from post-natal depression after Louis' birth, and was admitted to the Mandala Psychiatric Clinic at Gosford Hospital. Her second major relationship was with the deceased, Kevin Fawcett.

12. The accused told the psychiatrists that she smoked marijuana as a teenager and injected heroin in her twenties. She had consumed a number of other drugs, some of them illegal and some under prescription, and was a moderate consumer of alcohol. She had been on methadone for many years. As to her psychiatric history, the accused was assessed in her early twenties as suffering from bipolar affective disease, a condition which has continued to haunt her. I shall give the details of her condition a little later. In the meantime it is appropriate to discuss the issues to be determined in this case, and particularly the defence of mental illness.

Issues to be determined

13. The accused having been charged with murder, it goes without saying that the Crown must prove beyond reasonable doubt the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first instance, are significantly reduced. The Crown must prove in all cases that it was the accused who caused the death of the deceased, and that his or her actions were voluntary or intentional ones. A “voluntary or intentional” act is to be contrasted with an involuntary or accidental one. In determining this matter, the Court is to put to one side the evidence as to the underlying mental condition of the accused. If this matter is proved beyond reasonable doubt then the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the relevant time. However when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen (1994) 179 CLR 500. In that event, the next matter for consideration is whether the elements of that defence have been established by the accused on the balance off probabilities. If so, there is no need to consider the accused's intention at the time. The accused is to be found not guilty on the ground of mental illness. It is only if the defence is not made out that the Court needs to consider whether the accused had the requisite intention for murder.

14. In the present case there is no issue but that it was the accused who inflicted the fatal stab wound on the deceased. Nor can there be any doubt that her actions in doing so were voluntary and intentional in the relevant sense. Indeed, no one has sought to suggest to the contrary. Accordingly, the next significant matter for consideration relates to the accused's mental state at the time of the killing, and particularly whether the defence of mental illness has been made out so as to lead to a special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”).

The defence of mental illness

15. There is no statutory definition of the defence of mental illness. It has long been established that, once the defence has been raised, it is to be resolved in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 (“the McNaghten rules”). Under these rules the accused must prove, on the balance of probabilities, that at the time she inflicted the fatal stab wound she was labouring under such a defect of reason, arising from a disease of the mind, that she did not know the nature and quality of her act; or, if she did know it, she did not know that what she was doing was wrong.

16. As to this last requirement, that the accused did not know that what she was doing was wrong, it is now firmly established that this does not relate to her understanding of the illegality of her actions, but rather to her appreciation, in a deep or moral sense, of the wrongfulness of her conduct. As Dixon J (as he then was) said in The King v Porter (1933) 55 CLR 182:

“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.”

17. With this background, I turn to discuss the psychiatric evidence in this case.

The psychiatric evidence

18. Five reports of the forensic psychiatrist Dr Jeremy O'Dea were tendered by the Crown, the first dated 15 February 2016 and the last 6 July 2017. Dr O'Dea took comprehensive histories from the accused, and also had access to the records relating to her various admissions to the Mandala Clinic. There had been seven such admissions between July 1996 and February 2011, for periods which varied between one and 22 days. Only in his first and last reports did Dr O'Dea address the question of the defence of mental illness. The other reports were focussed upon the accused's fitness to stand trial. In that regard, Dr O'Dea initially considered her to be unfit, but she responded reasonably well to treatment, and in the later reports he considered that she had become fit according to the principles enunciated in R v Presser [1958] VR 45.

19. As to the defence of mental illness, Dr O'Dea noted in his first report that the accused had a long history of Bipolar Affective Disorder, and at the time of the killing she was undergoing an acutely manic episode as part of that condition. He expressed the view that the Bipolar Affective Disorder would be considered a disease of the mind, which, as a result of the manic episode, meant that although the accused knew the nature of her act, she would not have been able to reason with a moderate degree of sense and composure about whether her conduct in stabbing the deceased was wrong in the sense enunciated in The King v Porter. Accordingly she would have the defence of mental illness available to her. This opinion was repeated in Dr O'Dea's last report, dated 6 July 2017.

20. Dr O'Dea gave evidence at the sentencing hearing in which he repeated his opinion that the accused has the defence of mental illness available to her. He said that the condition giving rise to this defence was separate from her substance abuse disorder, which had resulted from her abuse of various substances over the years. As already indicated, he was not cross-examined by Mr Todd.

21. The defence tendered three reports of the psychiatrist Dr Anthony Samuels, dated respectively 24 April 2015, 28 August 2015 and 29 March 2016. The first report related only to the accused's fitness to stand trial. However in the second and third reports he directly addressed the question of the defence of mental illness. In his second report Dr Samuels said that this defence might be available. In the third report he agreed with Dr O'Dea's assessment that this defence is likely to be available.

22. The expert evidence being all one way, I was abundantly satisfied that, when the accused stabbed and killed the deceased, she was suffering from a mental illness as defined in the McNaghten Rules. Indeed, as already indicated, the Crown Prosecutor did not seek to argue to the contrary. It was for these reasons that I entered a verdict of not guilty by reason of mental illness pursuant to s 38 of the Act.

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Decision last updated: 06 December 2017