R v Xinfei Gu

[2009] NSWSC 1305

CITATION:	R v Xinfei Gu [2009] NSWSC 1305
HEARING DATE(S):	23/11/09-27/11/09
JUDGMENT DATE :	27 November 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Barr AJ
DECISION:	I find that the accused is not guilty by reason of mental illness of the charge that he murdered Robert Woodger. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.
LEGISLATION CITED:	Mental Health Act 2007
PARTIES:	Regina (Crown) Xinfei Gu (Accused)
FILE NUMBER(S):	SC 2008/11988
COUNSEL:	Mr R Herps (Crown) Mr M Ierace SC (Accused)
SOLICITORS:	R Herbert (Solicitor for Public Prosecutions) S Sandig (Legal Aid Commission)

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

BARR AJ

Friday 27 November 2009

2008 of 11988 Regina v Xinfei GU

VERDICT

1 His Honour: The accused, Xinfei Gu is charged with the murder of Robert Woodger on 20 June 2007 at Eastwood. On 6 February 2009 the accused was found unfit to be tried and was referred to the Mental Health Review Tribunal in accordance with the relevant legislation. The Tribunal considered the matter and concluded that the accused would not become fit to be tried within the ensuing period of 12 months. Accordingly, the Director of Public Prosecutions required that there be a special hearing into the question whether the accused committed the offence charged.

2 The accused cannot be tried for murder because he cannot, because of his mental condition, participate in a trial to the degree required by the law. Although a special hearing is very like a trial there are important differences. The accused cannot be found guilty of the charge and he cannot be sentenced. He can instead be found on the limited evidence available to have committed the offence charged or any alternative offence permitted by law, and, if that happens, the Court can impose an approximation of a sentence, called a limiting term. The accused can, however, be found not guilty, and if that happens all the consequences of an acquittal follow. He may also be found not guilty by reason of mental illness, with all the consequences of such a verdict.

3 The law provides that a special hearing be heard before a judge sitting without a jury unless there is an election on behalf of the accused or the Crown for trial by jury. There has been no such election in the present case and the special hearing has therefore been held before me as Judge of the law and the facts. I have heard the evidence and the submissions of counsel upon it and now deliver my verdict and reasons.

4 Mr Robert Woodger was on duty as a taxi driver in the early hours of 20 June 2007. Records resulting from electronic communications between his vehicle and the taxi base show that he set down a passenger at Marsfield, near Epping, at about 03.00am. At 03.02am Mr Woodger took on board another passenger. There was a camera inside the vehicle and I shall say something later in this judgment about what that camera recorded. At 03.59am the camera stopped working. At 05.35am a motorist saw Mr Woodger’s taxi travelling erratically westwards along Rutledge Street, Eastwood, not far from but away from Eastwood railway station. It collided with a garbage truck, continued to the end of Rutledge Street and turned left into Brush Road. It was later found abandoned a couple of streets away at a point only a few minutes’ walk from the Clanwilliam Street premises where the accused was then boarding. There was blood in the vehicle. A number of things were found in the back seat including a knife whose blade was covered in blood.

5 A fellow boarder of the accused saw him at the boarding house on the same morning, standing just inside the back door. The boarder stated the time of that event as about 05.00am, though I think that the sighting was made more probably some time not long after 05.35am, the time at which the motorist saw the taxi in Rutledge Street. When the boarder saw the accused he was holding the blue and white umbrella bearing bloodstains. His hands were cut and he asked for bandages.

6 At 09.00am the same day Mrs Ho, the proprietor of the boarding house, visited the accused in his room. She noticed that he had bandages around the index fingers of both hands and it appeared as though blood was on them. The accused told Mrs Ho that he had been robbed by two persons with a knife. Mrs Ho advised him to go and speak to the police, who were canvassing the district following the discovery of Mr Woodger’s abandoned taxi. The accused said that he could not do so, as he had an exam that morning. Mrs Ho gave the accused bandages and saw him leave the house. She did not see where he went. She described the clothes he was wearing and added that he was also wearing light blue gloves like the ones doctors wear in the hospital and that he was carrying paper documents.

7 At about 02.00pm on the same day Mrs Ho visited the accused’s room. She noticed the untidy state of the room, which was unusual. She could see what looked like blood on the wall. She saw the accused begin packing up his things and putting them into bags. They talked about the arrears of rent and agreed that Mrs Ho would retain the bond, which almost covered the arrears. Mrs Ho asked the accused about an intended visit of his to China, about which he had spoken a few days earlier. He said that he was not going and that he had no money. At about 04.45pm Mrs Ho drove the accused to the library at Macquarie University. He took with him a bag similar to the environmental shopping bags one sees at supermarkets.

8 Some time before 11.50pm on the same day cleaners in the University library noticed bags there. They called security officers to investigate. Two officers attended. The bags contained a number of items about which I shall say more later in this judgment. While the inspection was being carried out a cleaner reported that she had seen a man. The security officers investigated and came upon the accused. He was shaking. He had bandaids on the fingers of both hands. He was asked about bags and directed the attention of the officers to one of the four bags which were there. That one was separate from the other three. The police were called. Police officers attended and arrested the accused for trespass. They took him to the police station. They suspected him of having been involved in an attack upon Mr Woodger and over the course of the next few hours interrogated him. The content of this conversation has not been put before the Court, and I shall not refer to it. It is sufficient to say that after that the officers had no particular intention of asking the accused any more questions.

9 The facts that I have so far related come from the oral and written evidence of several witnesses, none of whom has come under challenge.

10 The accused was charged with the murder. He was denied bail and taken to Silverwater gaol. The police were convinced that Mr Woodger must have died, but were concerned that after such a long time his body had still not been recovered. On 23 June the accused sent a message through a corrective services officer to the investigating police officers that he wished to speak to them. Three police officers responded, Detective Sergeant Dodd, Detective Sergeant Richardson and Detective Sergeant Bowden. The officers were directed to an interview room where the accused was seated. What happened is recorded in a statement made by Detective Sergeant Richardson on 18 July 2007 at paras 47 - 53, thus:

“47. About 1.40pm Detective Sergeant BOWDEN, Detective Sergeant DODD and I entered the room and sat at the table with GU. Inside the room I saw an ERISP machine with display lights showing. GU indicted the ERISP machine and said, “Turn that off”. Detective Sergeant BOWDEN turned off the ERISP machine at the power point on the wall and the display lights went out. I saw Detective Sergeant BOWDEN open a notebook. The accused said, “No writing.”
48. GU looked around the room then he spoke quietly. As he spoke GU insisted that no recording be made of the conversation. GU attempted to negotiate a deal to enable him to speak to his family in China, to speak to a friend in Sydney from the same village as himself and to be given a written guarantee outlining what his sentence would be before providing us with information concerning the location of the body of the taxi driver. The conversation was not recorded as it took place however the content of the conversation was as described.
49. I indicated to GU that no written guarantees or deals would be made. GU said words to the effect, “Then you find him yourself.” That conversation was not recorded as it took place. Detective Sergeant BOWDEN, Detective Sergeant DODD and I stood up and began walking out of the room.
50. As we walked out GU called out to us to return to the room. Detective Sergeant BOWDEN and I returned to the room and sat at the table. GU said words to the effect that he could tell us where to look for the body of the taxi driver however he continued to attempt to negotiate a deal. I cautioned GU that he did not have to tell us anything unless he wanted to. That conversation was not recorded as it took place.
51. Detective Sergeant BOWDEN handed GU a street directory opened to map reference 193 depicting the Eastwood, Marsfield areas and a pen. I saw GU look around the room then he appeared to doodle with the pen marking May Street and Ethel Street, Eastwood. As he did he was mumbling to himself during which I heard him say something about hearing trains and running water.
52 Detective Sergeant DODD returned to the room.
53. I again cautioned GU that he did not have to say or do anything unless he wanted to however that conversation was not recorded as it took place. I indicated the markings GU had made in the street directory and then I said words to the effect, “Did you drive with him in the taxi?” GU said words to the effect, “He was driving then I stab him then he stop here, I think.” I saw GU circle the southern area of Ball Avenue, Eastwood then I saw him sign his name above those markings. GU said words to the effect that was where to search fro the body of the driver. I offered GU an opportunity to record what he had told us electronically. He declined saying words to the effect of, “No, no more video.” I offered GU the opportunity to have our conversations written down so he could sign them. He said words to the effect, “No, no more.” The whole of that conversation was not recorded as it took place however the content of the conversation was as described.”

11 Having eschewed the making of any electronic or written record of the conversation, as demanded by the accused, the three officers left. They transmitted a message to other police officers about what the accused had told them about where the body was. They entered a police vehicle and went to that place. By the time they arrived the body had already been found. It was in exactly the spot marked by the accused on the street directory page.

12 As the officers sat in the car Detective Sergeant Bowden made notes of the events and the conversation that had taken place in the interview room. At his invitation Detective Sergeant Richardson read them and signed them as correct. A copy of the notes came into evidence as Exhibit T. The page of the street directory marked by the accused in the interview room came into evidence as part of Exhibit A.

13 I warn myself that factual statements made by persons like the accused who are shown to have been suffering from mental illness at the time may be unreliable. In the opinion of Dr Lucas, an eminent psychiatrist, in whom the Court puts a lot of trust, the accused was suffering from paranoid schizophrenia. According to Dr Skinner, a psychiatrist equally eminent and equally trustworthy, the accused was suffering from a mental illness characterised by psychotic phenomena with delusions and possible hallucinations at the time of the death of Mr Woodger. Although they expressed their opinions in different terms, the two psychiatrists were substantially in agreement about the accused’s mental condition at the time of the events giving rise to the charge. At the hearing into the question whether the accused were unfit to be tried, they agreed that he was unfit. At trial they agreed that he was suffering from a mental condition likely to give rise to confusion of thought. His memory was likely to be impaired by psychotic phenomena. He had no insight into his mental condition. In fact he denied he was mentally ill. It is because of such features of his illness and their possible effect upon his capacity to give an accurate account of events that evidence of things he said to the investigating police officers may be unreliable. I accept the need for caution when relying on such evidence and in that connection I note the opinion of both psychiatrists that caution is needed when considering such evidence.

14 Both psychiatrists also say that it does not follow, when a person is suffering from an illness like that suffered by the accused, that person cannot give an accurate and reliable account of events.

15 I have considered the whole sequence of events from the time the accused summoned the investigating police officers to Silverwater gaol to the time that they left him and took the steps that led to the recovery of Mr Woodger’s body. The accused appears to have acted and spoken precisely and purposefully throughout. His intent was to speak to the police in order to obtain concessions. Before he began speaking he looked about the room for recording apparatus (he had previously been interviewed and would have been familiar with such equipment) and directed that it be turned off. When he saw an officer about to record what was happening he told him to close his notebook. He spoke coherently throughout. When it became clear to him that the police officers were not intending to come to any private understanding with him, he changed tack. The portion of the conversation relied upon by the Crown as admitting stabbing the deceased is part of a sentence the other part of which is demonstrably true. His accurate statement that he knew where the body was leads only to the inference that he had seen it. I note the report that as he was looking at the street directory the accused was speaking about hearing trains and running water. It should be noted that the marking that the accused made on the street directory appears to be directly along the line of Terry’s Creek and very close to the railway line immediately north of Eastwood station. It would be speculative to suppose that he had come by that information in any other way. There is no evidence that anyone told him. There is no evidence that any third person was involved. The evidence about where the body was shows that the accused was capable of remembering events accurately and relating them accurately and that he did so on that occasion notwithstanding his mental state.

16 Having approached with appropriate caution the evidence of what the accused is reported to have said, I have no reservations about accepting it and I propose to act upon it.

17 The accused’s admission that he stabbed the taxi driver is the only direct evidence in the case. The Crown case is otherwise circumstantial. It is appropriate when a case is principally a circumstantial one for the jury to be instructed, and I so instruct myself as the tribunal of fact, that if there is available on the whole of the evidence any reasonable conclusion that the accused person is not guilty, the accused must be found not guilty.

18 There are many circumstances relied upon by the Crown to prove its case. I shall confine myself for the moment to circumstances which have not come under attack. In other words, the events which I shall now relate may be accepted with confidence.

19 At about 11.00pm on the night that Mr Woodger died Mr Tak Shing Fung, the husband of Mrs Ho saw the accused about to leave the boarding house. He was wearing a windbreaker with a red stripe and a hood. He appeared to have matching trousers. He was holding a blue and white striped umbrella. He rushed out of the house.

20 Photographs of the accused were taken by automatic camera at Eastwood railway station between 11.39pm and 11.45pm. He was carrying a blue and white striped umbrella. He was wearing a windcheater with a red stripe. When the accused’s fellow boarder saw him re-entering the house the next morning the accused had with him a blue and white umbrella with blood on it.

21 A pair of cut and bloodstained latex gloves was found in a pocket of tracksuit trousers matching the description given by Mrs Ho and matching the colour of the tracksuit top to which I have referred. The trousers were found in one of the four bags at Macquarie University library. Although there is direct evidence only that the accused took one bag to the library and although the evidence of the security officer is to the effect that when asked about bags the accused directed them to one only of the four bags, which was separated in space from the other three, I observe that all four bags were without any apparent owner or possessor unless that were the accused at 11.50pm at night. I accept the submissions of Mr Ierace, for the accused, that contents were probably removed from bags and replaced, by cleaners and security officers, and perhaps by police officers. I accept that items removed from one bag might have been put back into another bag. The fact remains, however, that all the bags were in the accused’s near presence and the totality of their contents has a strong connection to him. In one of them, for example, was a court attendance notice addressed to the accused. It is inconceivable that anyone else could have taken it there.

22 I note that the accused had been seen earlier wearing gloves like those that doctors wear in hospitals. One of the latex gloves found in the trouser pocket was examined for DNA. It contained a mixture. The major contributor had DNA matching the DNA of Mr Woodger. The probability of that DNA having come from anyone else is so small as to be negligible. It was not possible to develop a full profile of the DNA of the minor contributor, but it matched the DNA of the accused as far as it went. Statistically DNA producing such a profile occurs at the rate of 1 in 68,000 in the community. That is some evidence that the accused contributed the DNA. Also found in the same bag was a bloodstained box of unused latex gloves. No gloves were found in the taxi.

23 A tracksuit top matching the description given by others of the garment worn by the accused and matching the photographs taken of the accused at Eastwood railway station was found in the taxi. It was bloodstained.

24 As I have said, the tracksuit pants were found in one of the bags found at the library. Also in the bags were cards bearing the accused’s name. Some garments were wet as though they had been washed.

25 These matters give rise, I think, to an inference that the accused abandoned the top because it had bloodstains on it, returned to his lodgings, changed his clothes and took some of them with him in the bags, perhaps having washed them. Because the accused had come to the end of his relations with his landlords, he could not leave anything behind, particularly anything he thought might be incriminating.

26 A knife found in the back seat of the taxi was examined. From a bloodstain on the blade DNA matching that of the deceased was recovered and it may be accepted that it was the deceased’s blood on the blade. The accused’s DNA was detected in a stain on the handle. DNA yielding such a profile occurs so infrequently as to give rise to a very high probability that the accused had that knife in his hand.

27 DNA matching the accused’s was recovered from the interior front passenger's side door handle of the taxi, from a stain on the on/off button of an organiser found on the front passenger’s seat, from a stain below the driver's exterior door handle, from a stain below the external door handle and from a swab from the inner sill near the driver's side window.

28 The last of these powerful pieces of circumstantial evidence is the accused’s knowledge, demonstrated in his conversation with the three police officers at Silverwater gaol on 23 June 2007, that he knew where Mr Woodger’s body was.

29 Mr Woodger died because of the immediate effects of incised wounds to the throat. His fingers and hands bore incised injuries which must have been caused by a knife and which must have been occasioned as he attempted to defend himself.

30 The palmar aspect of the accused’s right fingers and the back of his left hand bore incised wounds which were probably caused by a knife. They were the wounds that were bleeding when he was seen first thing in the morning on 20 June 2007 and for which he was given bandages by his fellow lodger and by Mrs Ho.

31 I accept that the accused was a person of prior good character except for the matter mentioned in the court attendance notice to which I have referred. That was a charge of a theft of an item of no great worth. As things then stood it was only a charge and not proved. I think that the accused is entitled to be treated as a person of prior good character. I remind myself that that fact is to be taken into account in deciding whether the accused committed the offence charged. I remind myself that a jury may reason that a person of prior good character is for that reason less likely to have committed the offence charged. I also remind myself that everyone who offends is, immediately before committing the first offence, a person of prior good character.

32 I remind myself that the Crown must prove beyond reasonable doubt that the accused did the act causing death. If the circumstances which I have just enumerated had been the only evidence in the case I would have been satisfied beyond reasonable doubt that the accused stabbed the deceased in the throat with the knife that was found in the back seat of the taxi and thereby caused his death.

33 As it is, there is even more evidence. There is not only the direct evidence of the admission the accused made at Silverwater gaol to having stabbed the taxi driver. There are other circumstances. Some criticism has been made of those circumstances and it is possible to say that they are not as strong as those which I have enumerated. The first of these is that a watch that looked like the deceased’s was found among the accused’s possessions in one of the bags at Macquarie University library. There was no watch with the deceased when he was found.

34 With the deceased’s possessions in the bags was a peaked cap bearing a kangaroo apparently in some gilt metal at the front above the peak. One of the photographs taken by the taxi’s internal camera shows that the back seat passenger was wearing a cap of that same general design which had upon it some mark or thing of about the shape and size of the gold kangaroo. But that is as much as one can say. None of the photographs developed from the internal camera of the taxi can do more than suggest that the back seat passenger had clothes and an appearance generally similar to the accused’s clothes and appearance.

35 There was evidence of shoes found in one of the bags and of a visual comparison between the pattern of the soles of those shoes and a pattern left on the back seat of the taxi. The pattern could have been left when somebody wearing those shoes stood on the back seat, but one can say no more than that.

36 A tomahawk and a red sheath were found in the taxi. The tomahawk, the knife, the sheath, and the cap with the gold kangaroo may all have come from the one store in Rowe Street, Eastwood.

37 There are other circumstances but it is not necessary to mention them.

38 I am satisfied beyond reasonable doubt that the accused did the act that caused Mr Woodger’s death.

39 The Crown must also prove beyond reasonable doubt that when he stabbed the deceased the accused intended to kill him or to do him grievous bodily harm, which means really serious bodily injury. That is a conclusion available only by inference, and I approach the matter with the caution which is necessary when drawing inferences in a criminal trial on a charge as serious as this one. I observe that the fact that the accused was suffering from a mental illness at the time is not to be taken into account in this respect. The evidence leaves me with a deal of suspicion about the purpose of the accused’s entering the taxi in the first place. His intention may have been to rob and it may have been to use the knife or anything else he took with him in furtherance of whatever his purpose then was. But one can say no more than that these suspicions arise. It is from the nature of the wounds themselves that I infer that the accused must have intended at least to do Mr Woodger really serious bodily injury. The wounds themselves bespeak no lesser intention. Judging by the wounds upon the body of Mr Woodger, including to his hands, and the wounds on the accused's hands, the attack with the knife must have been savage and sustained. I am satisfied beyond reasonable doubt that when he killed Mr Woodger the accused had the requisite intent for murder.

40 I am satisfied that having killed Mr Woodger the accused dragged his body to the place where it was eventually found, re-entered the taxi and drove it to the place where it was found abandoned.

41 The Court may not consequent upon these findings reach the verdict that on the limited evidence available the accused committed the offence of murder. A defence has been raised that the accused is not guilty by reason of mental illness. The Court must now consider that defence.

42 The burden of proving that an accused person who is otherwise liable to be found to have committed an offence is not guilty by reason of mental illness lies not upon the Crown but on the accused himself. He must prove what he asserts on the balance of probabilities, which is to say that he must make it appear more likely than not that he was at the time suffering from a mental illness sufficient to give him that defence.

43 When this defence is raised the question to be answered is whether when the act constituting the offence was committed the accused was suffering from a defect of reason from a disease of the mind so as not to know the quality and the nature of the act that he was doing or, if he did know it, that he did not know that what he was doing was wrong. The law has been amplified in Australia in recent years and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through 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. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong.

44 As I have said, Dr Lucas and Dr Skinner are in agreement about the state of mind of the accused at the time of the events giving rise to the charge. As at 19 June 2007 the accused, a Chinese national, had been in Australia for a period of at least two years. He came here to undertake further study to better his employment prospects. At the requirement or the insistence of his family he undertook a course in accounting. He did not like it and he did not do well at it. If he had had his own choice in the matter he would have studied history or technology.

45 The accused was in the third year of his course of study at Macquarie University by the time of these events but had still not passed all the requirements of first year. It appears that he may, perhaps out of hope or fear, have given his parents to understand that he was succeeding where he was not. He had been given notice that he had failed his examinations and thus would not complete the course. He was therefore facing cancellation of his visa and of enforced return to China.

46 He had been intending to return to China for a holiday, as he told Mrs Ho, but his plans to do so had been thwarted because he could not afford the fare.

47 He had no money. If he had to return without qualifications he would be a disappointment to his parents, and they might in turn have suffered some loss of respect.

48 Dr Lucas examined the records of the accused’s academic progress at the University. He noted also that the accused had from time to time consulted a general practitioner at the University, Dr Mayo and a counsellor, Mr Wickenden. In February 2005 he had suffered stress-related diarrhoea, with a recurrence a year later. In February 2008 Mr Wickenden had noticed tiredness, difficulty in relaxing and trouble sleeping. There was no history of drug or alcohol abuse. There was no clear family history of psychiatric disorder, though a grandmother received medication which might have suggested that she had suffered from depression. Dr Lucas observed that there is a strong stigma attached to mental illness in the Chinese community. He noted the symptoms of the accused’s anxiety during his academic career in Australia. He interviewed the accused at length. He related the accused’s reports of feelings of events which he, Dr Lucas, regarded as evidence of psychosis. The accused said that he was afraid and when asked why said that he did not know. It was “just the feeling”. He said that it was “maybe everything”. He related to things which had happened which were not even possible. He said that something supernatural had happened, something incredible. He gave examples. He said that as soon as the killer got into the car the GPS stopped transmitting signals. He said that the supernatural must have turned it off.

49 He gave a second example which Dr Lucas interpreted as an idea of reference. He said that on the morning of their interview he had been moved to a cell and the new cell mate was a “mental health doctor”. He thought that very unusual and that as soon as he had moved a psychiatrist had come to visit him. He considered that more than a coincidence.

50 A third example was that his solicitor had told him that there were signs of a “third DNA on the knife” taken from the crime scene. He was happy about this but later his solicitor denied telling him such a thing. Still later his barrister confirmed there was third DNA from a person unidentified. The accused said that he always knew this before (his barrister) did.

51 A fourth example was that before the last court appearance he had spent the night reading the whole brief. That had been facilitated by his room mate being moved out and his television breaking down. Another incident was that before the events in question his landlord has asked him whether he was going back to China. He was unable to sleep and decided to telephone his parents. He looked for his telephone card but could not find it. He tried to use an old one but it had expired. The next day, after the taxi driver had been murdered, he found the new card. He said that if he had used the new card perhaps the incident would not have happened.

52 He told Dr Lucas that a supernatural being was helping him. Its power was sure. He said that he even connected his life with his country. He said that it had been bad for his country as well, meaning China, protests, prisoners killed, the olympics, milk. The last was apparently a reference to a well publicised problem of the contamination of children’s milk in China. He said that both had had a bad life. “Maybe if I got better then the country will as well”. He said that he did not think that he himself was to blame for China’s problems. He went on to say that the supernatural being was involved in the trial and would never give him up.

53 Dr Lucas asked the accused about psychotic symptoms. As to auditory hallucinations he said that he could not hear anything but “I feel something in my heart”. He had ideas of reference believing that everyone talked about him and that he was on the news. He once read a newspaper article about Chinese students and thought it referred to him.

54 He told Dr Lucas that he had taken to carrying knives with him to protect himself.

55 The accused told Dr Skinner as well about the super being. He repeated to her the things that had happened that he had related to Dr Lucas had not happened by coincidence. The GPS system stopped working as soon as he got into the taxi, for example, and there was the incident with the phone card.

56 Both psychiatrists reported before the hearing in February 2009 that the accused was unfit to be tried because he was holding delusional beliefs which were likely to inhibit his giving proper instructions to those representing him at trial.

57 Both saw him in November this year. When speaking to Dr Lucas the accused maintained that he was not mentally ill. He continued to speak about the power he had described before. He continued to link his fate to the fate of China. Speaking of the incident in the taxi he emphasised his lack of memory and said that he was “too scared to remember”. He said that according to his memory something very unusual happened, something not even possible. He said that he remembered a third party, who pushed him to drive the car. Dr Lucas asked him why he got into the taxi and he said that the third party had pushed him into the taxi “to drive”. He could not clearly remember the third party. He was a man “not too young”. When asked whether he had moved the body he said “maybe”, but was not sure whether he had any memory of it. He said that he was too scared to think about it for almost a year and had forbidden himself to think. He said “I don’t know if my memory is the truth or illusion”. He said that something very powerful controlled his fate. He had also controlled other people, systems and societies. He said that he was the only one who believed in him, that he was the only one who understood him.

58 When asked about olfactory experiences or hallucinations, the accused said that there was a “mixture”. He described a horrible feeling mixed with water and darkness during all the incidents.

59 Dr Lucas concluded that the accused had not changed his delusional beliefs or gained any insight into his condition. He thought that apart from his long established delusional beliefs, lack of insight and the perplexed confused and ambivalent way he discussed the incident there were no obvious signs of psychosis. There was no suggestion of cognitive impairment.

60 Dr Lucas is of the opinion that the accused is and was at the time of the events suffering from paranoid schizophrenia, a severe mental illness. Although he was unable to give a coherent account of the incident leading to the death of Mr Woodger, it was probable that at the time he knew the quality and nature of his actions. However, in Dr Lucas’s opinion, he was unable because of his mental illness to reason about his actions with a moderate degree of sense and composure. He thought that the accused’s description of his involvement was probably influenced by his psychosis, a delusional interpretation of events and memory impairment. The memory impairment was likely to be due in part not only to the psychosis but also to the highly traumatic nature of what happened.

61 I might add that Dr Lucas considered delusional the accused’s references to the third person. I am satisfied there was no such third person.

62 Dr Skinner remains of the opinion that the accused is suffering from a mental illness characterised by psychotic phenomena, including delusional beliefs. She considers that he was suffering from a mental illness of that kind, possibly with hallucinations, around the time of the events. She is of the opinion that on the balance of probabilities the accused was suffering from a disease of the mind so that he did not know the quality and nature of the act he was doing or if he did know it, that he did not know that what he was doing was wrong. She considers that he has available to him the defence that he is not guilty by reason of mental illness.

63 I remind myself that the tribunal of fact has a duty to make up its own mind on the issues for trial, taking into account all the evidence. Where the evidence is of expert opinion that opinion may be weighed in the light of other evidence. The tribunal of fact may even reject expert opinion by reference to other evidence in the case. There is no cause here to do such as thing, however. It seems to me that the opinions of Dr Lucas and Dr Skinner are well founded and that I should accept them. I conclude, as they have opined, that the accused has discharged the burden of establishing the availability of the defence of mental illness. I find that he is not guilty of the murder of Mr Woodger by reason of mental illness.

64 Both psychiatrists agree that the accused needs continuing treatment, including treatment with drugs, and plainly that can happen only under strict psychiatric supervision.

65 It is necessary to say a number of other things. The events giving rise to the charge must have been distressing and perplexing for the family of Mr Woodger, and perhaps for others. The sympathy of the Court goes out to Mr Woodger’s family and all those who have been touched by these tragic events. It is to be hoped that now that the Court hearing is over those concerned may gain some peace of mind.

66 The statute which governs cases like this empowers me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. I propose to make such an order. In practice that means that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act. A strict statutory regime will then come into effect.

67 The Mental Health Review Tribunal is a body consisting of a president or a deputy president and other members, including legal practitioners, psychiatrists and persons who in the opinion of the Governor have qualifications or experience which suit them for service on the Tribunal.

68 As soon as possible after my verdict the Tribunal will commence a review of the accused’s case. When it has done its review it must make an order as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, and provided certain other conditions are met, it may order his release.

69 Assuming that the Tribunal does not order the release of the accused after its first hearing, it can at any later time, and must at least once every six months, review his case.

70 One may summarise one of the principal purposes of the legislation by saying that the accused will never be released from his confinement under the Mental Health Act unless the Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered.

71 I find that the accused is not guilty by reason of mental illness of the charge that he murdered Robert Woodger. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.