R v Willoughby (No 3) - [2018] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILLOUGHBY (No 3)
[2018] SASC 6
Judgment of The Honourable Justice Hinton
1 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ACT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Mr Willoughby stands charged with murder allegedly committed on 29 November 2015 at Athol Park. Pursuant to s 269E(1) of the Criminal Law Consolidation Act 1935 (SA), an order was made that Mr Willoughby’s mental competence to commit the offence be investigated in the interests of the proper administration of justice. Under s 269E(2), the Court determined to proceed with the trial of the objective elements of the offence first. Mr Willoughby elected to be tried by Judge sitting alone. The prosecution satisfied the Court beyond reasonable doubt that Mr Willoughby performed an act that caused Mr Edgar’s death – that is, that the objective elements of the offence had been proven against Mr Willoughby beyond reasonable doubt; R v Willoughby (No 2) [2017] SASC 191.
At the trial of Mr Willoughby’s mental competence, reports of Drs Nambiar, Haeney and Lim were tendered. All three doctors separately expressed the opinion that Mr Willoughby was mentally incompetent at the time he performed the act that caused Mr Edgar’s death. The prosecution elected to make no submission on the question of mental incompetence and did not alert the Court to any reason as to why the opinions of these psychiatrists should not or could not be accepted.
Held:
1. Mr Willoughby was mentally incompetent to commit the offence of murder on 29 November 2015 and is accordingly, not guilty.
2. Mr Willoughby is liable to supervision pursuant to s 269G(B)(3)(a) of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
The Queen v Radford (1985) 42 SASR 266; M'Naghten's Case [1843] UKHL J16; 8 ER 718; The King v Porter (1933) 55 CLR 182; Baini v The Queen (2012) 246 CLR 469, applied.

R v WILLOUGHBY (No 3)
[2018] SASC 6
Criminal
HINTON J.

Woonun Willoughby has been charged with the murder of Oden Edgar. Pursuant to s 269E(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) this Court has ordered that Mr Willoughby’s mental competence to commit the offence be investigated in the interests of justice.[1] Pursuant to s 269E(2) CLCA I determined it appropriate to proceed with the trial of the objective elements of the offence first. Mr Willoughby elected for the trial to be conducted by a judge sitting alone under s 269B(1) CLCA. On 15 December 2017 I published my reasons for concluding that the prosecution had satisfied me beyond reasonable doubt that Mr Willoughby did perform an act that caused the death of Mr Edgar – that the objective elements of the offence of murder have been proven against Mr Willoughby beyond reasonable doubt.[2]
[1] Part 8A of the CLCA has been amended since 29 November 2015, the day of the alleged murder. It was not suggested by either prosecution or defence that such amendments as they relate to mental incompetence have retroactive effect. Accordingly, I have applied Part 8A as it was as at 29 November 2015.
[2] R v Willoughby (No 2) [2017] SASC 191.
Section 269G(B)(1)(a) CLCA provides that upon the Court finding that the objective elements of the offence are established it must proceed to try the question of the defendant’s mental competence to commit the offence charged.
Mr Willoughby elected for the trial of his mental competence to be heard by a judge sitting alone.
These reasons should be read together with my reasons on the trial of the objective elements. I do not consider the evidence as given in the course of the trial on the objective elements by Ms Adams, Ms Wilson, the police officers called who attended at 4 Glenroy Street, Athol Park, the children, SW, JW and IW, and the neighbours Mr and Mrs Hatzis and Ms Tsimilkis to have departed materially from that contained in their declarations or interviews, particularly with respect to the behaviour of Mr Willoughby in the lead up to Sunday, 29 November 2015, and the events of that day. I bear in mind, in particular, Ms Adams’ evidence of her observations of her son’s declining mental health in the twelve months prior to his offending, the help sought, and her intention in coming to Adelaide to take him back to Queensland with her because she did not consider him to be well. In addition I have regard to evidence of those present at Ms Wilson’s house of Mr Willoughby’s presentation and behaviour between the time of his arrival on the Friday and until he was taken away by police on the Sunday.
On the trial of Mr Willoughby’s mental competence defence counsel tendered reports from the following:
·Dr N P Nambiar, dated 24 May 2016;
·Dr O Haeney, dated 30 September 2016, and
·Dr P Lim, dated 11 March 2017.
Drs Nambiar, Haeney and Lim are all forensic psychiatrists. Dr Nambiar’s report was prepared at the behest of the defence. The reports from Drs Haeney and Lim were prepared pursuant to an order of this Court made under s 269WA CLCA. The prosecutor did not object to the tender of the reports and did not require that any of the doctors be made available for cross-examination. Additionally I understood the prosecution not to dispute the factual basis upon which the opinions expressed in the reports were based and to agree that it was open to me to accept that factual basis as recorded in the reports. I was not alerted to anything in the oral evidence given in the course of the trial of the objective elements by the witnesses whose declarations and interviews were provided to the doctors that was inconsistent with the declarations and interviews such as to undermine the factual basis upon which the reports were prepared.
All three doctors separately express the opinion that Mr Willoughby was mentally incompetent at the time he performed the act that caused Mr Edgar’s death. The prosecution elected to make no submission on the question of mental incompetence and did not alert the Court to any reason as to why the opinions of these psychiatrists should not or could not be accepted.
Under s 269D CLCA a person is presumed to be mentally competent to commit an offence unless the person is found, on an investigation under Part 8A Division 2 CLCA, to have been mentally incompetent to commit the offence.
The presumption contained in s 269D will only be displaced if the Court is satisfied on the balance of probabilities[3] that at the time of engaging in the conduct comprising the objective elements of the offence the accused was suffering from a mental impairment and, in consequence of that mental impairment, did not know the nature and quality of the conduct, or, that the conduct was wrong, or, was unable to control the conduct.[4]
[3] Criminal Law Consolidation Act, 1935 (SA) s 269G(B)(3).
[4] Criminal Law Consolidation Act, 1935 (SA) s 269C.
Mental impairment is defined in s 269A(1) CLCA as including a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility, but does not include intoxication. A person suffers a relevant mental illness where they suffer a pathological infirmity of the mind, including such infirmity that is only of temporary or short duration.[5] The definition of mental illness and its meaning can be traced to the judgment of King CJ in The Queen v Radford.[6] That was a case concerning the now abolished insanity defence and the M’Naghten rules.[7] More particularly the question was whether a dissociated state was the product of a disease of the mind within the meaning of the Rules. King CJ observed that the common law was wary of any attempt to define definitely a disease of the mind. He added:[8]
… The expression “disease of the mind” is synonymous, in my opinion, with “mental illness”. In his charge to the jury in The King v. Porter Dixon J. used the expression “disease disorder or disturbance”. But the words “disorder” and “disturbance” must take their colour from the word “disease” and refer to disorder and disturbance of the mental faculties which can be characterized as mental illness. In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M’Naghten rules. As Lord Denning pointed out in Bratty v. Attorney-General for Northern Ireland, the major mental diseases or psychoses such as schizophrenia are clearly diseases of the mind. Moreover, physical diseases, such as psychomotor epilepsy, (Bratty v. Attorney-General for Northern Ireland) and arteriosclerosis (Reg. v. Kemp), when they affect the soundness of the mental faculties should be regarded as diseases of the mind. Lord Denning considered that any “mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”: Bratty’s case. Disease of the mind is to be distinguished from “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control, and impulsiveness”: The Queen v. Porter. The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called “defect of reason” in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of “disease of the mind” should be explained to the jury in some such terms.
[footnotes omitted]
[5] Criminal Law Consolidation Act, 1935 (SA) s 269A(1).
[6] (1985) 42 SASR 266.
[7] M’Naghten’s Case [1843] UKHL J16; 8 ER 718.
[8] The Queen v Radford (1985) 42 SASR 266 at 274-275. See also The Queen v Falconer (1990) 171 CLR 30 at 53-54 (Mason CJ, Brennan and McHugh JJ, 85 (Gaurdron J).
Dr Nambiar is a Consultant Forensic Psychiatrist and the Clinical Director of the South Australian Forensic Mental Health Service. I do not pause to set out his qualifications and expertise. It was not disputed that he was an expert in the legal sense, nor that the opinions contained in his report were within his area of expertise.
Dr Nambiar interviewed Mr Willoughby on 4 April 2016 and again on 23 May 2016.
Dr Nambiar records Mr Willoughby’s drug use and increased drug abuse during 2015, his diagnosis in November 2014 as suffering anxiety and depression, the prescription of anti-depressant medication which Mr Willoughby ceased, the unconfirmed suggestion of psychosis observed by a “Dr Ohbi”, a general practitioner that Mr Willoughby consulted in Queensland, and the reasons for Mr Willoughby ceasing to attend University (including anger issues that made others feel threatened). Dr Nambiar also records the decline in Mr Willoughby’s mental health since the middle of 2015, described by his mother as alternating between behaving normally and becoming angry, erratic and behaving weirdly, including being preoccupied with “spiritual stuff” and saying that he had seen and touched the moon and “the portal”. This decline coincided with Mr Willoughby becoming, in effect, homeless and likely using Ice.
Mr Willoughby told Dr Nambiar that he had no memory of the day of Mr Edgar’s death. Subsequently it transpired that he had some recollection of events, but not the incident itself. He was unable to give any explanation for his behaviour other than believing that he was unwell. Importantly, Mr Willoughby reported that from time to time over the course of the year preceding Mr Edgar’s death he would hear voices. The voices would comment upon him, but not command him to act in any way. He could not recall if he had heard voices prior to stabbing Mr Edgar. He could not recollect having any thoughts of fearing Mr Edgar or wanting to harm him.
Ms Adams made an audio recording of Mr Willoughby on 27 November 2015. Dr Nambiar listened to the recording. He notes:
The audio recording … provided a great deal of information about … [Mr Willoughby’s] … mental state on the day prior to the incident. More specifically, his conversation demonstrated thought disorder in form and content. His thoughts were jumbled and demonstrated tangentially (during the course of the conversation his thoughts digressed from topic over and over again). The content of his thoughts included the grandiose belief that he had healing powers, that he had special knowledge of the world and specific musical talents. He also demonstrates paranoid thinking that people view him differently because of his special knowledge. He also describes some bizarre beliefs that were in fact difficult to follow given the nature of his Thought Disorder. I noted too that his speech was rapid and at times there was inappropriate laughter, suggesting an altered mental state, all in keeping with psychosis.
Dr Nambiar noted that upon his admission to the Royal Adelaide Hospital immediately after his arrest on 29 November 2015 Mr Willoughby was seen by the psychiatric consultation liaison team. The team recorded Mr Willoughby as being thought disordered and psychotic. Mr Willoughby was commenced on anti-psychotic medication. On 26 December 2015 Mr Willoughby was admitted to the Glenside Psychiatric Intensive Care Unit. He was considered still to be psychotic. On 30 December 2015 he was transferred to James Nash House on an inpatient treatment order for the treatment of acute psychosis. He was assessed at this time as suffering from a psychotic illness with impaired thought processes, insight and marked perplexity. Dr Nambiar records:
… On presentation at James Nash House, he was initially polite and cooperative, but not able to discuss any issues at any length. He answered questions monosyllabically, but also made some unusual statements about his beliefs and other people’s perception of him. He was regarded as being acutely psychotic and treatment with antipsychotic was continued.
He was continued on Olanzapine 20mg (an antipsychotic) for what appeared to be a first episode of psychosis with unclear aetiology. It was considered that drugs had played a significant role in the aetiology of his illness which appeared to be either in keeping with the evolution of Schizophrenia or Bipolar Disorder.
Mr Willoughby was discharged from James Nash House on 5 April 2016.
As at the time of being interviewed by Dr Nambiar, Mr Willoughby was no longer thought disordered. The thoughts he had relayed to his mother as recorded by her were no longer present.
Dr Nambiar said:
In examining your client and the material provided to me, it is important to state the following facts.
It has been established that for at least twelve months prior to the incident occurring, your client was experiencing depressed mood and anxiety symptoms with mood fluctuations, for which treatment was commenced by a general practitioner in conjunction with a treating psychiatrist in Queensland. Your client continued with that treatment for a period of time, but ultimately stopped taking medication.
Coincidentally, your client has a history of substance abuse for many years and that, in particular, in the six months’ prior to the incident he had been using large amounts of cannabis on a regular basis. There is also a history to suggest that he was using amphetamines and magic mushrooms. In addition, he was consuming large amounts of alcohol. Over that period, various witness statements confirm that he was exhibiting strange thought patterns, fixed false ideas of a paranoid and grandiose and at times bizarre nature and that he appeared to be hallucinating (talking to himself) from time-to-time. That particular constellation of symptoms observed by the layperson was also confirmed by your client and continued up until and including the day of the offence.
On the day of the offence, your client had consumed marijuana the night before and on the day of the offence, it is unclear as to whether he used any other substances (a Urine Drug Screen conducted twelve days later was only positive for Cannabis) but one could assume that there was a degree of intoxication from cannabis on that day.
Your client’s actions on that day were consistent with the change in behaviour observed by various witness (sic) over the six months’ preceding that day. The description of what was observed in your client’s behaviour on the day of the incident, including reference being made to psychotic thinking and conversation and paranoia. There was also rapid change in his general demeanour from calmness to overt aggression, which then culminated in the stabbing.
Witnesses also observed bizarre behaviour immediately following the incident, including an attempt to push the weapon down his own throat.
Following his arrest, your client spent a considerable period of time in a surgical ward where he was noted to continue to remain psychotic and antipsychotic medication was initiated. For a period of three to four months post his arrest, he continued to exhibit features of psychosis despite any effects of intoxication on the day having worn off. In fact, at the time he was discharged from James Nash House, months had past and he continued to have some residual symptoms despite having regular treatment on a daily basis.
Dr Nambiar opined:
In my opinion, although on the surface it may appear that your client was experiencing a Cannabis Induced Psychosis (with the possibility of additional effects of Amphetamines and Magic Mushrooms), the longitudinal history of persistent psychosis beyond arrest, would make that diagnosis less likely and one of a primary psychotic illness more likely. In that context, it is my opinion that your client was experiencing an acute episode of undiagnosed Schizophrenia, which is classified as a mental illness and therefore fulfils the criteria for a mental impairment.
Dr Nambiar did not consider that Mr Willoughby would not have known the nature and quality of his conduct, but did consider that at the material time Mr Willoughby was thought disordered and that he was not able to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. In arriving at this conclusion Dr Nambiar refers in particular to the evidence that on the Sunday morning Mr Willoughby referred to having seen the portal and saying that he was going to die soon.
Dr Haeney is a Forensic Psychiatrist at James Nash House. As with Dr Nambiar, and indeed with respect to Dr Lim as well, I do not set out the Doctor’s qualifications and expertise. It was not disputed that either Dr Haeney or Dr Lim were experts in the legal sense, nor that the opinions contained in their reports were not within the field of their expertise.
Dr Haeney interviewed Mr Willoughby on 18 August 2016. At that time Mr Willoughby was housed in prison and was continuing to take anti-psychotic medication. Mr Willoughby reported that he continued to hear voices, but knew they were not real and, in any event, used cognitive techniques he had taught himself to deal with them such as visualising putting them in a box and throwing the box away. He said his mood was “alright” but still low.
Dr Haeney obtained a substance abuse history and psychiatric history from Mr Willoughby similar to that obtained by Drs Nambiar and Lim.

Mr Willoughby told Dr Haeney that he had no memory of the two days he spent as Ms Wilson’s home. When challenged that his memory for other days around the time was reasonably detailed, he denied it was, saying that his memory, such as it was, was just an overview and that detail escaped him. He did recall that he had the knife in his throat. It was unlike him, he said. He also recalled being in the ambulance which he believed had the door open even though it was driving along. He was not sure why.
He reported no recollection of any psychotic symptoms, such as unusual beliefs or imaginary voices, which could have driven his behaviour. When asked about the portal he said that it was always on his mind, but had an unclear recollection of what it was. He had dreamt about a portal after taking mushrooms.
In his report Dr Haeney notes observations made by those present at the time of the incident and immediately afterwards, including the neighbours and police, and the doctors who treated Mr Willoughby for his injuries, and of Mr Willoughby’s conduct in the days before the incident, on the day of the incident and afterwards. Dr Haeney then embarks upon a comprehensive review of the notes made at the Royal Adelaide Hospital, Glenside Psychiatric Intensive Care Unit and James Nash House by the various medical professionals that demonstrate Mr Willoughby’s mental illness and in particular his distorted thinking and psychotic state, his behaviour generally, and his improvement to the point where he is discharged to prison. The notes record on a number of occasions the significance of Mr Willoughby’s drug use to his illness but almost invariably add that underlying bipolar or schizophrenia are also likely to have been operating. Dr Haeney also refers to prison notes made which demonstrate a similar pattern of ongoing symptoms of mental illness/psychosis including reports by Mr Willoughby of his hearing voices.
As at the time of writing his report Dr Haeney notes that Mr Willoughby had recently engaged in an act of self-harm and was awaiting re-admission to James Nash House.
Dr Haeney opines:
In my opinion, there is ample evidence that Mr Willoughby was floridly psychotic around the time of the offence. His behaviour was noted by others, as outlined in witness statements, as being bizarre and unusual for him as well as being culturally inappropriate. He was talking nonsensically or in a way that others found difficult to follow. He had developed an interest in pseudo-philosophical ideas and signs and symbols. He would appear intermittently agitated. He appeared distracted, as if responding to psychotic symptoms.
The motivation for Mr Willoughby’s offence is unclear. It does not appear that there was any particular animosity towards the deceased prior to the incident, and his prior agitation appeared directed at his mother primarily. Given Mr Willoughby’s reported lack of recall for the entire material time, his motivation is uncertain.
There is also unambiguous evidence, in my opinion, that Mr Willoughby remained psychotic after the offence. His behaviour in the ambulance, demonstrated through witness statements and a police recording, is unusual, for example, howling and appearing fearful upon arrival at the hospital. Subsequently during treatment there is ample evidence of ongoing psychotic symptoms including thought disorder (characterised by reduction in logical links between thoughts, rendering his thoughts difficult to follow) and persecutory and grandiose delusions. This was consistent and described in several psychiatric assessments during the four week period of treatment in the Royal Adelaide Hospital, extending into the early part of his stay at James Nash House.
Dr Haeney expresses no doubt that Mr Willoughby was psychotic prior to his offending and thereafter for at least one month.
The question arises whether Mr Willoughby’s psychotic state was the product of his drug use or whether there existed an underlying psychosis triggered or exacerbated by that drug use. Dr Heaney could not say with certainty what was the position. Mr Willoughby’s improvement in the period following the incident could be the consequence of the anti-psychotic medication prescribed. On the other hand it could be the product of the effect of illicit drugs wearing off. Dr Haeney states:
The diagnostic criteria within the Diagnostic and Statistical Manual. 5^th Edition, from the American Psychiatric Association, for substance/medication-induced psychotic disorder include the presence of delusions or hallucinations, occurring during or soon after substance intoxication and stipulate that the disturbance is not better explained by a psychotic disorder that is not substance/ medication induced. DSM-5 gives the following as evidence of an independent psychotic disorder: “The symptoms preceded the onset of the substance/medication use; the symptoms persist for a substantial period of time (e.g. about one month) after the cessation of acute withdrawal or severe intoxication; or there is other evidence of an independent non-substance/medication induced psychotic disorder (e.g. a history of recurrent non-substance/medication related episodes)”.
Therefore, the persistence of Mr Willoughby’s psychotic symptoms for at least one month post-ingestion of cannabis and magic mushrooms would, in my view, favour a diagnosis of an independent psychotic disorder rather than it being solely attributable to substance abuse. Of note, other classification systems such as the World Health Organisation’s ICD-10 give different time scales for resolution from a psychotic disorder induced by drugs. ICD-10 specifies that the “duration of the disorder must not exceed six months”.
[emphasis in original]
Dr Haeney refers in his report to a body of research dealing with the question of how to determine whether mental illness is the product of substance abuse or an underlying disorder exacerbated by substance abuse. The research provides no ready answer. Clinically what is important is that the individual has the propensity to develop a psychiatric illness which is likely to be exacerbated by substance abuse.
Dr Haeney concludes that at the time of the incident Mr Willoughby was suffering a psychotic disorder, most probably a schizophreniform psychosis. On balance he considered it unlikely that Mr Willoughby would have been able to reason with a moderate degree of sense and composure regarding the wrongfulness of his actions and would likely have had an impaired ability to control his conduct.
In answer to the specific question whether Mr Willoughby’s presentation on the day of the incident was consistent with cannabis intoxication, Dr Haeney said that it was unlikely that this was exclusively the case. He refers to Mr Willoughby’s behaviour in the weeks and months prior to the incident and the concerns expressed by those around Mr Willoughby for his mental health as indicative of more than cannabis operating. He said:
… While he was using cannabis heavily and we do not have information to suggest there was a cannabis-free period that would allow assessment of his mental state at that time, in my view, the presentation prior to, around the time of and (most importantly) subsequent to the offence suggests that it is more consistent with a psychotic disorder. …
He adds that for most clinicians the longer the psychotic symptoms persist after drug use, the less likely it is that the symptoms are solely attributable to intoxication or drug-induced psychosis and the more likely they are to be the product of an independent psychosis exacerbated by drug use.
… a psychosis solely attributable to substance misuse can be indistinguishable from a primary schizophrenic or independent psychosis in terms of symptoms and most clinicians would rely on the dissipation of symptoms to help clarify the diagnosis. Unfortunately, where antipsychotic medication has necessarily been commenced, it then becomes difficult to note whether dissipation of symptoms is primarily due to the natural course of a drug-related psychosis as opposed to the antipsychotic effects of medication, which would also be expected to begin working within two to six weeks.
Dr Lim is a Senior Consultant Forensic Psychiatrist with the Forensic Mental Health Service. Dr Lim interviewed Mr Willoughby on 2 September 2016 and again on 2 March 2017. She records Mr Willoughby’s drug use and abuse, psychiatric history pre and post offending, the events including Mr Willoughby’s conduct in the days leading up to Mr Edgar’s death, and the details of Mr Willoughby’s offending little different to Drs Nambiar and Haeney. There is further detail in her report, however, about a suicide attempt in 2011 after a relationship breakdown. While heavily intoxicated, Mr Willoughby attempted to hang himself in a playground but his feet were still touching the ground. He fell unconscious and when he woke his lip was bleeding. He said the suicide attempt was impulsive.
Dr Lim also listened to Ms Adams’ audio recording and noted:
… that Mr Willoughby had grossly fragmented thought processes, which were often convoluted and irrational. He made grandiose references to his special abilities, bizarre references to seeing the moon and staring at the sun. His speech was pressured and rambling to the extent of incoherence at times.
Mr Willoughby informed Dr Lim that he could not remember the circumstances of his offending, although he did have flashbacks of stabbing his own throat with a knife.
With respect to Mr Willoughby’s admission to the Glenside Psychiatric Intensive Care Unit Dr Lim provides the following detail:
On admission to Glenside, he was described as manic and psychotic. He said he felt targeted by the police but it was not just racism. He commented that “my mind was travelling so fast” that people were unable to follow his conversation. He made a number of philosophical comments about “life being about repetition” but was unable to elaborate further. He made references to having special abilities as a musician that were grandiose in quality, namely being able to instantly pick up any instrument and play it well, which was out of proportion with the two paid gigs at pubs that he had previously been involved in. He reported “an almost manic sense of wellbeing” prior to his arrest and heavy use of alcohol, cannabis and magic mushrooms with auditory hallucinations. He appeared perplexed, vague and alluded to referential delusions involving the TV and radio. He was occasionally tearful and distressed due to his court matters. Antipsychotic medication (olanzapine) was prescribed and he was transferred to James Nash House on 30 December 2015.
Dr Lim also records specific events during Mr Willoughby’s stay in James Nash House in the first half of 2016 when, amongst other things, he reported receiving personal messages from the television, ripped his plaster off as he believed he could heal himself, and on more than one occasion displayed signs of paranoia and agitation.
In the prison environment Dr Lim records that on 28 June 2016 Mr Willoughby:
… asked to return to James Nash House because he felt that he was “relapsing”. He reported an intensification of the auditory hallucinations, which sometimes instructed him to harm others using physical violence. He denied any intent on acting on them. The voices also told him that the government was after him. He said he felt depressed because the voices were also telling him to kill himself. Due to the emergence of depressive symptoms, he was commenced on Mirtazapine 15 milligrams (antidepressant).
A further psychiatric review on 19 July 2016 indicated that Mr Willoughby continued to experience auditory hallucinations in the form of two voices who comment about him and his family, including his offence. He said, “Sometimes I feel I’m losing it and I talk to myself”. The voices were unfamiliar to him but they were no longer instructing him to harm himself and he was able to block them out. He was started on additional antipsychotic medication and his antidepressant was increased in view of “persistent positive symptoms of psychosis and some depressive features”. The following day, Mr Willoughby attempted to self-harm by tying his trousers around his neck. He admitted that the voices were telling him to kill himself and he wanted them to stop. He believed that the only way for them to stop was to act upon the voices. He was transferred to the high dependency unit with Yatala Prison for further support and his antipsychotic medication was increased.
In the ensuing months, Mr Willoughby continued to express thoughts of self-harm and suicide in HDU. He reported that he had ongoing voices which were derogatory in nature, but no longer commanding to hurt himself or others.
In January 2017, Mr Willoughby was observed to have extensive self-inflicted bruising around his neck. He reported a worsening of his psychotic and symptoms despite being on multiple medications. He reported that he was trying to cope with his symptoms by strangling himself with his hands and clothes. He said he was fed up of hearing voices. In addition, he appeared more paranoid about the government and Illuminati coming after him. He believed that they were trying to prevent him from achieving his full potential. Given the nature of his refractory symptoms and self-inflicted injuries he was transferred to James Nash House.
In Dr Lim’s opinion Mr Willoughby suffered from schizophrenia at the time of his offending that was undiagnosed and untreated. Dr Lim accepts that there is evidence suggesting that Mr Willoughby was intoxicated to some extent at the time of his offending but does not consider that the psychotic episode Mr Willoughby experienced was the product of drink and drugs. In arriving at this conclusion Dr Lim points to Mr Willoughby’s mental health at the time of his arrest and subsequently in the Royal Adelaide Hospital, Glenside Psychiatric Intensive Care Unit, and James Nash House. Whilst substance abuse may have exacerbated Mr Willoughby’s symptoms, Dr Lim considers the underlying mental impairment to be schizophrenia.
Dr Lim opined:
Although Mr Willoughby was unable to provide an account of the alleged offence, witness statements and an audio recording taken by his mother reflect his grossly disordered mental state in the lead up to the material time. Witnesses commented on his bizarre beliefs that were out of touch with reality (healing powers, being followed, touching the moon, seeing the portal), incoherent speech and unexplained mood swings. The audio recording reflected his severely fragmented thought processes 2 days prior to his arrest. This degree of disordered thinking was also present on the day of the alleged offence, manifested in nonsensical speech about “the portal” and his own imminent death. In addition, his behaviour appeared disinhibited and unpredictable. He was observed howling and crying before running towards his mother in an angry state. After stabbing the victim, he tried to push the knife down his own throat, poured water from the cat bowl over himself and interacted strangely with the dog, as if biting his face. Through the disordered condition of his mind, Mr Willoughby would have been unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions at the material time.
Understandably the prosecution inquired of Dr Lim, as they did of Dr Haeney, whether Mr Willoughby’s psychotic episode was drug induced. Like Dr Haeney, Dr Lim considered that the duration of the psychotic episode and the fact that subsequently Mr Willoughby required two further inpatient admissions to optimise his treatment of refractory psychosis rendered it “highly unlikely that Mr Willoughby’s persistent psychosis is secondary to cannabis intoxication and its metabolites after such a protracted period”. She added that the observations made by those present of Mr Willoughby’s behaviour at the relevant time was consistent with Mr Willoughby suffering from untreated schizophrenia. Whilst his condition was likely exacerbated by intoxication, it remained the case that his underlying condition was schizophrenia. Dr Lim brings her report to a close observing:
… The motive for the alleged offence remains unclear. However, his overall behaviour on the day appeared disorganised and bizarre. Witness statements indicate he made nonsensical statements about seeing the “portal” around the same time as reference to his own death prior to the incident. His behaviour immediately after with the dog was bizarre. The Medstar doctor who attended to him at the crime scene noted that he was agitated, frightened and talking to himself. Taking all of the above into consideration, his conduct was not suggestive of an individual acting with “composure and thought”.
There being no reason provided to reject the reports of Drs Nambiar, Haeney and Lim, I accept them. I am satisfied on the balance of probabilities that at the time of stabbing Mr Edgar, Mr Willoughby was psychotic. I am satisfied that on the balance of probabilities, Mr Willoughby’s psychotic state was not the product of his drug abuse but was the consequence of drug abuse triggering and/or exacerbating his underlying condition being one of schizophrenia. In arriving at this conclusion, I have taken into account the extent to which Mr Willoughby was using drugs up to the time of the incident, but also the various observations made over time by his mother, in particular, and others of his declining mental health. I have also had regard to his bizarre behaviour on the day of the incident, to his diagnosis during admission to the Royal Adelaide Hospital, to the continuation of his psychosis whilst at Glenside Psychiatric Intensive Care Unit and subsequently at James Nash House, and to his re‑admission at James Nash House.
Each of the doctors consider that the duration of Mr Willoughby’s psychosis is more consistent with an underlying illness and not the consequence of drug abuse. I accept the doctors’ opinions. On the balance of probabilities, I am satisfied that Mr Willoughby did not suffer a drug induced psychosis. Accordingly, I conclude that at the time he stabbed Mr Edgar, Mr Willoughby was suffering from a mental impairment – a mental illness constituted of a pathological infirmity of the mind.
I note Drs Nambiar, Haeney and Lim state that they cannot conclude that Mr Willoughby did not know that his conduct was wrong, but each is satisfied that he was unable to reason with a moderate degree of sense and composure that his conduct was wrong. The language used is that of Dixon J in The King v Porter.[9] In that case, Dixon J, in a summing up including instruction on the application of the M’Naghten rules, said to the jury:[10]
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression “disease, disorder or disturbance of the mind.” That does not mean (as you heard from the doctor’s replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing—with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression “know,” “knew that what he was doing was wrong.” We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people 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. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.
I appreciate that I am here concerned with the application of s 269C(b) and not the M’Naghten rules. However, Parliamentary Counsel has chosen in s 269C(b) and (c) to use terminology that has, in relation to the question of mental incompetence, an established meaning. In those circumstances, I think it the case that the established meaning is the intended meaning.[11]Nothing in the text of s 269C or the context of Part 8A more generally suggests otherwise.
[9] (1933) 55 CLR 182.
[10] (1933) 55 CLR 182 at 189-90; see also, Stapleton v The Queen (1952) 86 CLR 358 at 367-368 (Dixon CJ, Webb and Kitto JJ).
[11] Baini v The Queen (2012) 246 CLR 469 at [43] (Gageler J).

In the circumstances, accepting the opinions of Drs Nambiar, Haeney and Lim, and there being no reason to dispute their conclusions, I am satisfied that Mr Willoughby did not know that his conduct was wrong. In my view, Mr Willoughby was mentally incompetent to commit the offence of murder on 29 November 2015.
I find Mr Willoughby not guilty of the murder of Oden Edgar and declare him liable to supervision under Part 8A CLCA.